Pulling a sickie

In the days before stress, back injuries were often cited by the unsympathetic as the malingerer’s disease of choice because they were difficult to diagnose. Now stress tends to make employers eyes roll with disbelief when they see it on a sick note. I’ve lost count of the number of times I have heard an employer say I don’t want to go through a procedure because he/she will just go off with stress and I’ll be stuck.

Personally I’m not sure that people used these as an excuse for days off half as much as some employers would have you believe (24 hour flu was much more prevalent in my view). However, I have experienced people going off with stress when threatened with a disciplinary hearing, so it does happen.

The point is that if someone has too much time off work, you can dismiss them and there is nothing in law that says you have to keep employing someone who is not at work. It’s not a matter of whether their illness is genuine or not (and that is often very difficult to prove), it a case of whether the business can support a large amount of sickness absence.

Of course you have to go through some procedures and checks for example getting a report from their doctor or a specialist, and seeing if there are any reasonable adjustments you can make to make sure they can attend work (and the word is reasonable here). But if at the end of the day they cannot work for you in a reliable way you are perfectly entitled to dismiss them.

More importantly however is the reluctance to deal with a disciplinary matter because you think that the employee will just go off sick. First if they go off sick you merely start the procedure for dealing with sickness absence, which makes it clear to the employee that the issue will not just go away. But secondly you also demonstrate to the other staff that the problem you were dealing with was important and that as an employer you are able to ensure people work in the way you want them to.

If you employ someone whose absence record is causing you problems give us a call on 0161 851 112

Relationships and work

One of the unusual things about employment law is that it regulates a relationship that can be very personal. For example a good loyal member of staff may become a problem because they are not doing what you want them to do. Now this could be a performance issue, if they have moved to a new job for example. Or it could be the result of a previously good relationship breaking down. In these circumstances employment law is a lot more like family law than contract law. There are loads of reasons the relationship can go sour, sometimes it’s as small as forgetting to get this person an anniversary card even though you were an usher at their wedding, whilst at the same time remembering to ask a much shorter service member of staff how their son did on his first day at school.

Habits that you developed when dealing with someone as a receptionist may have a completely different meaning if they are the office manager. For example you may take a message and fill in the message book and the receptionist thinks you are just trying to save them some work. If you sort out a staff absence problem for a manager, you may be seen as undermining them. In both cases you may have been just trying to be helpful, but the results are quite different.

If you have a long standing member of staff who is just not coming up to scratch, it’s often worth finding out if, there are any underlying relationship issues before going down formal capability procedures. The formal route involves hearings and evidence and may just set everything in concrete, with the net result that you end up having to replace a perfectly good member of staff with a complete unknown. The point is that when family issues become difficult, applying the law usually means the position is irretrievable. This is often the case with employment relationships, once you go formal the die is cast.

Employment Appeal Tribunal decision opens up a whole new area of claims

In the case of Mr G Abrams vs EAD solicitors, the company owned by Mr Abrams made a claim against EAD that they had discriminated against them as a company by refusing to pass work on to them because Mr Abrams was older than EAD solicitor’s normal retirement age. Whilst the merits of the actual claim have not yet been decided, one issue has been ruled on that could have wide ranging implications for the way we do business in the UK.

The specific issue is whether company A can make a claim against company B for discrimination if the company B acted in a way that was detrimental to Company A because of a characteristic covered by the Equalities Act 2010. The Appeal Tribunal ruled that it could. What this means can best be described by way of an example.

Let’s say an evangelical Christian organisation wants to let a contract to repair the roof of their church. They put out an invitation to a number of local companies who bid for the work. One of the companies that puts in a bid is run by someone who is in a same sex relationship and well known in the community. The church holds strong views on this subject and decides not to award the contract to this company because of these views. The roofing company could then make a claim against the church that they discriminated against them because of their association with someone who is gay and this is unlawful under the Equalities Act.

There are two other issues that add a bit of spice to such a claim:

  1. There is no limit to the amount that could be awarded for such a claim so if the contract was for a few hundred thousand pounds that could be the award.
  2. When a claim like this is made, it is for the respondent to show that there decision was not based on a protected characteristic (in this case the sexuality of the company owner), not for the claimant to show that it was. i.e. the respondent has to prove a negative.

Whilst the possible ramifications of such a decision are essentially unknown, there is one that is almost inevitable. Local and central government procurement processes will become even more mind numbingly bureaucratic as they try to write a tendering process that stops them being subject to a claim under equalities legislation.

Whilst my gut reaction to this is that discriminating against a company because it has an enlightened approach to appointing staff and directors is just wrong. I can’t help feeling that this decision may have consequences that are equally distasteful, and actually create an environment that has the opposite effect to that intended by the legislation. I do not have the wisdom to know the right way out of this problem, but I would be happy to hear from anyone who has any thoughts.

Two Easters in one year

Does your new holiday year start on 1st April? If so then you need to read on because in the 2015-16 holiday year there will be 2 Easters and therefore 10 bank holidays whilst in 2016-17 there won’t be an Easter at all and so only 6 bank holidays.

In the absence of any guidance from the Government (maybe they have other things on their mind!) you need to agree with your workforce how you are going to handle this. The law says everyone gets 28 days holiday in a full holiday year-pro rata for part timers-which is split into 20 days to take as agreed between you and your staff and 8 days for bank holidays.

First of all, check what your contract says and talk to your staff. If you give more than the statutory minimum holidays or have staff who have accrued additional holiday entitlement due to length of service then you need take no action with them.

If you give the statutory 28 days, you can stick with that as it fully meets your legal obligation but will mean that in the coming holiday year staff have only 18 days to take when they want to but next year they will have 22. You could agree with staff that they take 2 days of next years’ bank holiday entitlement in the coming year so they still get 20 days to take when they like plus 10 bank holidays this coming year and only 6 next year. If you were feeling generous, you could award all your staff 2 extra days holiday this year but there is absolutely no obligation to do this.

If you want to talk it over please give us a ring and we will help you sort it out.

The minimum Wage and Care

I read Roy Lilley’s “almost” daily postings on the Health Service avidly.  There is so much I agree with and sometimes his writing is profoundly moving.  But …..

I have to take issue with his article on care and the minimum wage.  Don’t get me wrong I think paying minimum wage to the people who look after our loved ones (while a former Home Secretary asks for £5000 a day) is bordering on the criminal.  I also think the people who express indignation at the iniquities of Health and Social Care but at the same time think tax cutting is a moral necessity need to wake up and smell the bedpan.

However there are many people in the care sector who provide commitment, professionalism and not a little love for £6.60 an hour.  Yes, if you paid a realistic wage of £14 or £15 an hour there would be more of them but equally there would be plenty of people earning that much who would treat their residents, workers, patients or whatever like the contents of the aforementioned bedpan.

Increasing wages is vital, but is will not work unless the management of these services undergoes a radical overhaul.  When a culture of hiding behind job descriptions, avoiding responsibility and incessant moaning saps the positivity of even the most witless optimist, the outcome is obvious.

Politicians and the media share some responsibility for this state of affairs, but that’s another area that I have no idea how to change.  To be honest we need to have professions like these so that we have somewhere to put the idiots, so we can keep an eye on what they are up to!

What I do know how to change is the management of people and that’s where we should start.  Don’t suck people into large monolithic organisations where managers are forced to spend much of their time playing politics and day to day management is hived off to the dreaded “HR” department.  Match local delivery to local needs and encourage staff to make their bit of the Health Service better.

I’m reminded of a story about John F Kennedy walking round NASA in the 1960s.  He came across someone who was sweeping up rubbish and was obviously a cleaner.  He asked him what his job was and the answer came back “I’m helping to put a man on the moon”.  The story may not be true, but the message is valid.

The receptionist in your GP surgery is helping you have a healthier life – shouldn’t their manager tell them so, and shouldn’t we all cut them a little slack?

Management Style

There is no right or wrong way to manage staff, any style of management will tend to attract those people who work best under that style. Those that do not like the style leave. Even the bullying style and blame culture that is usually associated with autocratic management can be successful. Indeed one person’s bullying behaviour is another person’s refreshing challenge (within reason!).

The problems start when there is either inconsistent or no management. The key to avoiding this is to make sure the style of management is aligned with both the company’s values and the personalities of the managers. Get either of those alignments wrong and the result is demoralised staff and accusations of hypocrisy.

At KHES we don’t waste time moralising about right and wrong, we:

  1. Design practical solutions to help you manage your business.
  2. Support managers in their dealings with staff.
  3. Design Employment documentation which is both legally compliant and consistent with your aims.

We also take care to define clear boundaries for staff, there is plenty of well researched evidence that a lack of boundaries increases the sense of insecurity amongst staff as they do not know what is expected of them, and I have to say that often the ones that moan most about not being allowed the freedom to do their job are often the ones who are looking for an excuse!

So say good bye to policies and procedures that nobody reads, stop worrying about whether HR advisors will let you do what needs to be done and give your employees the tools to make your business successful.

Time off for dependants

There are 2 types of leave associated with dependants/children (once the maternity and paternity leave has been used up):-

Dependant leave.

The law says that an employee can take a ‘reasonable’ amount of un-paid time off in the following circumstances:-

  • To provide assistance when a dependant falls ill, gives birth, is injured or assaulted
  • To make arrangements for the provision of care for a dependant who is ill or injured
  • Following the death of a dependant
  • Following unexpected disruption to existing care arrangements
  • As a result of an incident occurring whilst a child is at school

A dependant is someone, of any age, who is reliant on the employee for their care, so includes children, elderly relatives, partners etc.

As usual, there is no definition of what is deemed ‘reasonable’, and each case should be considered on its merits, but there is no legal right to take time off to look after a dependant for the duration of an illness or to stand in for their usual carer. Neither does it provide for ‘compassionate’ leave following a bereavement, but does allow for time off to arrange the funeral and deal with any legal obligations. This type of leave is intended for short term absences in order to take what the law calls ‘necessary actions’ following an emergency situation which could not have been foreseen, such as arranging for someone else to take care of the dependant, to collect a child from school and establish what is wrong, maybe take them to the GP or hospital and arrange for ongoing care if necessary. The employee should make contact with you as soon as possible after the event, should tell you how long they anticipate being off work and keep you informed. It is not acceptable for such an absence to go on indefinitely unless you are happy to agree to that, and the law certainly would not find an extended absence ‘reasonable’. If you want to pay the employee that is fine, but there is no obligation to do so unless there is a contractual right. This leave should be recorded as Dependant Leave. Some people record it as sickness absence which then gives an inaccurate picture of absenteeism and the reason for it

If an employee needs time off for personal reasons which are not covered by the list of circumstances above they will need to seek your agreement to either allow a period of unpaid leave or take holiday. If they take time off without your agreement, or extend a period of authorised leave without permission and/or you are having problems getting hold of them to find out how things are and when you can expect them back at work then give us a call and we will help you reach a practical resolution.

Parental Leave

This is unpaid, pre-planned leave allowed for parents to take care of their child’s welfare. At present, the law allows employees with at least 1 year of service, who have responsibility for a child’s welfare, to take up to 18 weeks leave, in blocks of at least 1 week (unless the child is disabled in which case it can be taken in odd days) but no more than 4 weeks in any year during the first 5 years of the child’s life (or up to the 5th anniversary of the placement if the child is adopted and still under 18) or up to their 18th birthday if they are disabled. From April 2015 the 18 weeks will be able to be taken up to their 18th birthday for all children. At least 3 weeks’ notice must be given by an employee that they want to take parental leave. You can also ask for evidence of the child’s age and disability if required. You can defer the leave for a maximum of 6 months if your business would suffer a detriment by allowing it to be taken when it has been asked for.

This leave should not be confused with the new legal right to Shared Parental Leave which can be taken during the year following the child’s birth/placement, allowing both parents to share what used to be called maternity leave and pay. We have covered this in a previous newsletter but if you need more details please give us a call.

Reference checking

One of the services we offer here at KHES is reference checking. Reference checking can be a time consuming and difficult process for an employer. The level of information you require will vary depending on the role you are recruiting for, but some of the areas you may want to know about are given below. The most important areas are to confirm are that the candidate was employed when they said they were and that the sickness absence does not indicate problems ahead.

  • Job title
  • Employment history – e.g. roles undertaken
  • Length of employment
  • Qualifications
  • Experience
  • Salary
  • Capability in current role
  • Any training/qualifications received
  • Sickness absence record
  • Disciplinary record
  • Reasons for leaving
  •  Would you re-employ

Who should I be contacting for a reference?

  • Current employer
  • Previous employers (last 5 years normally)
  • College/university/school
  • Friend/colleague (character reference only)

At what point should references be requested?

Employers must remember that seeking references before you make a formal job offer, can cause problems if their current employer is unaware of their wish to leave. Therefore it is essential to ensure you obtain the candidate’s permission before contacting referees.

What can I expect?

Except in the financial service industries companies are under no obligation to provide a reference and many now adopt a policy of providing very limited information. This is often limited to how long the person was employed by the organisation and role undertaken.   While a glowing reference can seem very impressive it is not always an accurate indication of how the candidate will fit into your organisation and may actually reflect how much they want the person to leave!

Holiday Pay and Overtime

The Employment Appeal Tribunal (EAT) has reached a decision regarding what pay should be included in Holiday pay, and stated that contractual overtime (i.e. compulsory or non-voluntary overtime) should be included in a normal weeks pay when calculating how much you should pay someone on holiday. However this is with reference to the holidays that are enshrined in the European Directive on holidays not the additional 1.6 weeks that were added to the allowance in 2008.

What is not clear is what period you will have to average the pay plus overtime out over to get a weeks’ pay.

I can feel your eyes glazing over as I write this but put simply the problem is this. Everyone in the UK is entitled to 5.6 weeks holiday a year (which is 4 weeks plus the bank holidays). In European legislation you are entitled to 4 weeks holiday.

A number of cases in European courts and in UK tribunals have held that for the 4 weeks holiday enshrined in European law, workers should receive a normal weeks pay. What the EAT has done is apply the definition of a normal weeks pay to include contractual overtime (commission payments have already been included in a previous case).

Hence for the 4 weeks holiday a year that is enshrined in European law, people who work contractual overtime will have to have that taken into account when being paid holiday pay. The remaining 1.6 weeks holiday are just paid on basic pay (at the moment….).

What is also not clear is how the courts will define genuinely voluntary overtime or if they will decide to just include all overtime even if there is no obligation to work it.

The little ray of good news in all of this is that the courts have restricted the backdated claims to the last three months.

The problem is that the number of grey areas is still high, so expect more litigation. Also in a move which strikes fear in the heart of anyone who craves clarity, the government has decided to set up a task force to decide what to do!

If you currently pay staff overtime give us a call and we will be happy to advise you on the best course of action for dealing with this decision.

On a purely personal note it is not surprising that the unions and workers organisations have sought to get a ruling like this, even if it does cause problems for decent employers who have sought to comply with the working time regulations. The reason for that is that a number of larger employers followed legal advice that told them they could reduce their holiday pay bill by putting workers on short hours and make up the time with overtime. Yet another “cunning plan” that turned out to be not so cunning in the long run!

When a poor performer goes off sick

A client of ours runs a care home. They were concerned about the performance of the home manager and had issued her with a warning to improve things. The manager then went off sick (genuinely). Whilst signed off sick she had a meeting with our clients and expressed a desire to return to work on a phased basis.

Due to the nature of her illness and the continuing health problems she and her support worker said she had, our client had concerns about her ability to do the work, and an overriding concern about the welfare of the residents. However, as she was still signed off as unfit to work it was a hypothetical discussion.

We advised our client to seek permission from the home manager to write to her GP and Consultant for medical reports relating to the prognosis for her and what, if any, assistance she might need as and when she was deemed fit to return. We also asked whether she would be considered disabled under the Equality Act 2010. Her Consultant failed to comply with the request and her GP replied based on an administrative role only so a follow up letter was sent to ask for clarification. No response was received.

When she had been off sick for a few months she raised a grievance about several issues but mainly saying that it was discriminatory not to allow her back to work and make adjustments for her disability. She also put in a Tribunal claim on a similar basis. That is a scary situation but we advised a calm, measured approach as we believed the employee was trying to scare our clients into paying her off.

Contact with her had become very difficult and she refused to attend any meetings to try to resolve matters. Having been given a date for a medical capability hearing she said she was returning and did supply a letter from her GP saying she could return but she was still covered by a sick note. Her sick note expired and no further note was submitted and she did not return. We advised and drafted a letter setting out what would happen if she remained absent with no sick note and also reminded her that there were potentially serious outstanding disciplinary issues to be addressed when she did return, which now included some questions about what had been put on social media about the care home.

As soon as she received that letter her legal representative contacted ACAS asking them to contact us to negotiate an exit package. We managed to broker a deal which cost our client half what the employee would have got had they dismissed her or had she resigned and also saved them the legal costs of either a Tribunal or a settlement agreement by asking ACAS to broker the agreement.

Sometimes it’s better to play the long game-it takes nerve and you need to be sure of your facts but we knew this was a case of who blinked first and gauged it right.

There were a number of lessons from this

  1. Don’t get side-tracked by issues that don’t exist, in this case the attempt by the employee to raise the issue of disability.
  2. Sometimes you only find out what’s going on when the manager concerned is off site, although the owners knew things were not as they should be, it was only when the manager was not at work that the staff started to feel able to talk about the problems the manager was causing.
  3. Don’t get scared by advocates or solicitors who threaten you. In this case the issue was simple. Was she fit for work or not.
  4. Keep notes of all meetings and stay in touch with the employee.
  5. Keep your eye on what you want to achieve. In this case it was pretty clear that both employer and employee wanted to go their separate ways. Our client felt that their employee was exaggerating her condition (which could have been for a number of reasons), the problem with this approach from the employee’s point of view is that there is no obligation on an employer to keep someone in a job that they are unfit to perform.