Employment Law Questions? Common Misconceptions Answered
Date: 27th February 2019 | By: Claire Malley | Categories: Employment law
It’s easy for employers to go into auto-pilot mode when dealing with employees, especially when they’ve dealt with very similar situations in the past. We always recommend our clients speak to us about each individual case as the below examples show, not every situation works the way you’d always expect it to. We review 5 of the most common Employment Law questions that crop up and provide practical answers for employers.
Q1: Notice Pay during Sickness Absence
It would be logical to assume that if an employee resigns or has their employment terminated whilst on long term sick or is subsequently absent during their notice period, that they would be paid at the rate of statutory sick pay (SSP) for this period (except for those who are entitled to contractual sick pay). However, this is not always the case. Employees may be entitled to receive their normal pay during their notice period for all or some of it, despite being sick. Here’s how it works;
You need to compare their contractual notice with statutory minimum notice periods. Remember, statutory notice is 1 week for each full year worked, up to a maximum of 12 weeks. If they have no contract of employment, it is deemed as though they had only been given statutory notice in their contract.
Contractual notice (employer to employee) is the same as statutory notice:
- Employee Resigns – Full Pay for 1 week of the notice & SSP for the remainder (unless they’ve exhausted SSP entitlement).
- Employer Terminates – Full Pay for the entire duration of the notice period.
Contractual notice (employer to employee) is at least 1 week more than statutory notice:
- Employee Resigns – SSP (or nothing if they’ve exhausted their entitlement) unless they’re entitled to contractual sick pay.
- Employer Terminates – SSP (or nothing if they’ve exhausted their entitlement) unless they’re entitled to contractual sick pay.
As you can see, it can be confusing therefore it’s always best to double check your Employment Law questions with one of our Wirehouse HR Consultants before taking any action.
Q2. Part-Time Holiday Calculations
Many employers get confused when calculating part-time holiday entitlement and it’s easy to make a mistake. You should always start the calculation inclusive of bank holiday entitlement and then deal with bank holidays afterwards. Don’t fall into the trap of working it out exclusive of bank holidays and then giving your employees the bank holidays as and when they fall, it could result in them receiving more or less than they should be entitled to.
Example: You offer full-time employees 20 days holiday plus 8 bank holidays. You have an employee who works 3 days per week (Wednesdays, Thursdays & Fridays). What is their entitlement?
- 28 days (inclusive of the bank holidays) divided by 5 days (in a full time week) = 5.6 weeks
- Take this calculation of 5.6 weeks and x 3 (days worked) = 16.8 days entitlement (inclusive of bank holidays)
You would then deduct from the employee’s entitlement, any bank holidays that happen to fall on their normal working day (a Wednesday, Thursday or Friday in this example) and pay them for it. If a bank holiday falls on a day they don’t usually work, then you ignore it – you don’t pay them for it and you don’t deduct it from their entitlement. You might decide to work out which bank holidays will fall on their working days for the year ahead (but remember this will change slightly each year depending on when Christmas, Boxing Day and New Years’ Day falls).
If you think your part-time employee’s holiday may be incorrect, contact Wirehouse for further advice.
Q3. Enforcing Holiday Leave on Employees
You can tell employees when to take their holidays, provided you give them the required notice, despite not having anything about this in your contract of employment. For example, if you want to tell the employee to take a week off, as long as you give them 2 weeks’ notice, you can do this. The same works for single days; as long as you give 2 days’ notice for them to take 1 day as annual leave, it is lawful to do so.
It’s beneficial to implement this when you may be anticipating a period where you’d ordinarily have to lay people off temporarily or you might enforce holiday during a notice period to avoid having to pay the notice with all accrued holidays on top.
For example – if someone is leaving and is about to work 4 weeks’ notice but they have accrued and not taken 1 weeks holiday, ordinarily you’d pay them this holiday at the end of their employment. However you could give them notice that you wish for them to take this week on [specified dates] during their notice and as long as you’ve given them 2 weeks’ notice to take it, you can do this. Therefore in this example you’d be able to make them take the week’s holiday during one of the final 2 weeks of their 4 weeks’ notice period.
Be careful not to breach the implied term of trust and confidence though. You need to look at reasonableness and if you know someone has pre-booked holidays, you can’t just cancel these and make them take them elsewhere. You can check your Employment Law questions with our qualified HR experts if you’re unsure.
Q4. Redundancy of Part Time Workers
Many employers make the mistake that they should make their employee redundant if they no longer want a part-time worker in a position and want to change it to a full time position. The work is still there, if not more work, therefore there is no redundancy. You’d need to establish a business case and go through consultation with your current part time employee, to move the role to a full time position. They should get first refusal as well. Even if they decline the changes, the correct dismissal would not be redundancy.
Q5. Dismissing Employees with Under 2 years’ Service
Some employers get carried away with the rule that generally, an employee with under 2 years’ service can’t claim unfair dismissal. However there are exceptions to this rule. That’s why it’s always best to talk through your Employment Law questions with our HR team at Wirehouse before dismissing an employee, even an employee with a short amount of service. There are a variety of other claims that employees with under 2 years’ service can bring, sometimes these claims can cost more than a standard unfair dismissal claim such as a variety of discrimination claims.
Need your specific Employment Law questions answered? Contact our team of HR Consultants today so that we can guide you through the correct process to take.