'Any Questions?' is a new series of webinars from Legal-Island in conjunction with O'Reilly Stewart Solicitors. In this first webinar broadcast live on 20th September 2017, Scott Alexander from Legal-Island dicussed questions on the following issues with Seamus McGrnaghan, Director at O'Reilly Stewart. Click on your preferred topic to go straight to the question and answer in the transcript:

Overtime and holiday pay

Zero-hour contracts

Calculating average earnings for holiday pay purposes

Contractual wording and holiday pay entitlement

Speaking English only in the workplace

Offering alternative employment to disabled employees

Conflicting medical advice

Sick employees posting pictures on social media

When could a resignation be rescinded?

Must employers provide smoking areas for staff?

Transcription

Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.

Scott: Good afternoon, everybody. My name is Scott Alexander. Welcome to Any Questions from Legal-Island in association with O’Reilly Stewart Solicitors. I’m joined today by Seamus McGranaghan, who’s Director for O’Reilly Stewart. We’re going to be discussing employment law questions at the other end, your listening end, hopefully. You can use the chat box to send in any questions if you like. We’ll take some of your questions as we go along. We have one or two to start you off.

We’re going to look at holiday pay originally and then see where it goes, see where it takes us. We’ve had one question that came in via email that we’re going to deal with as well. We’re in the offices in May Street here in Central Belfast. We’re not in a soundproof studio. So, if you hear sirens going past, it’s because we’re at the coal face of employment law issues.

Okay. We’ve got a question just come in here, which we’ll come back to. It’s on zero-hour contracts. We’ll come back to that one in a minute. You can see the questions are coming in through the chat box.

The first question we’re going to start off Seamus with is:

Q. The Employment Appeal Tribunal in England recently held in the case of Dudley Metropolitan Borough Council v Willetts that regular average voluntary overtime should be included in holiday pay. Could you comment on what that means in Northern Ireland, if indeed it were to be applied here in Northern Ireland tribunals?

Seamus: Good afternoon, Scott. Yes, this was an interesting decision in the case of Dudley. The basic position and premise behind Dudley is really that the employer when looking at holiday pay, it should be reflective of what the employee is normally working. So, there’s a couple of things just to talk about first of all in respect of the Dudley decision before we get into the application of it here in Northern Ireland.

We’re really looking at voluntary overtime, first of all, the overtime that’s done on a voluntary basis and how that’s calculated then for the basis of the working holiday whenever the employer is working on the holidays. Dudley says that it should be reflective in the holidays that they receive. The basic position is that you would take your standard 12-week holiday period but Dudley does, in fact, suggest that it should be calculated over a five-week period.

But that’s one way of looking at it, and certainly I think that you could take your normal 12 weeks and really looking at what’s reflective of what the employee is doing. So, it’s things really, I think, the practical aspect of what we’d be looking to, what is the normal course of action for the employee? Are they working, for instance, 9:00 to 5:00 consistently and they every so often are doing some overtime and they’re doing it voluntarily or is it the actual fact that they’re working from 9:00 to 6:00 every day and their contract might say 9:00 to 5:00, but the additional hour they’re doing voluntarily. This decision is very clear that the voluntary aspect of it should be included within the holidays.

Practicalities for the employer in respect of that is really about, I think, for the employer to ensure that it is monitoring and tracking what employees’ hours that they’re working. There’s various ways that that happens throughout different businesses.

For instance, in our business here, we have a fob where we swipe in and swipe out of the building, and not always effective for us because we do things like going to court and maybe going outside to see clients, but it gives an indication of when we’re here and when we’re not here. Other people have clocking in systems and others will have sign in sheets and things like that. It’s important for the employer to keep an eye on those things and to look at them being reflective.

Scott: Q. Just on that, there’s another question that came in just on the monitoring situation, which is, “Is it okay to pay people who are on zero-hour contracts for holidays but not to monitor when or how much time they take off?” So, what you’re saying is no, it’s not. You’ve got to monitor.

Seamus: Certainly, if any of these decisions of the employer were ever to be challenged, when you end up in a tribunal, the tribunal will look for evidence and it’s important that you are keeping records, that you are monitoring things in terms of holidays or for zero-hour contractors, when they’re working and when they’re not working.

Again, it’s really about the fundamentals of the relationship between the employer and employee. What is both’s understanding of what is happening and is it that the employee can simply stay on a zero-hour contract and available to work 30 hours and the employer to hand you 30 hours to work and that’s it or is there flexibility that’s built in there both ways? So, certainly it is about monitoring.

I just want to cover off on the point that Dudley is obviously a decision that has been made in the EAT in England. Here, based in Belfast, we have our own tribunal system. The question right now, I think, is whether or not the decision in Dudley will apply in Northern Ireland. Certainly there is room in our process for our tribunals to look to make different decisions.

As you know, decisions in the tribunals here in Northern Ireland can only be appealed to the Court of Appeal here because there’s no employment appeal tribunal in Northern Ireland, but I think it’s very likely that the employment tribunal will have certainly cognizance to that decision and they will take it into the account.

If I’m advising my clients, I wouldn’t be saying to my clients take a risk here and don’t pay additional holidays on the basis of voluntary over time because if it’s challenged, my anticipation would be that the tribunals here will follow that. If the tribunals didn’t, I think it’s a likely Court of Appeal challenge as well, which of course is an overarching court here in Northern Ireland and would certainly take precedence over the EAT in England.

Scott: Thank you very much, Seamus. Just to let you know if you’re listening, that question that came in there was anonymous to you. It’s not to us. We can see who it was, but we’re not going to mention any names today. We got an extra question on holidays just yesterday when the webinar was being announced.

Q. An employee is contracted for, say, eight hours per week. They on occasion work extra hours. They take a week’s holiday and then get paid their average earnings over the last 12 weeks and they say the average earnings might equate to 10 hours because they take some extras every week. So, would the holiday pay in that case following Dudley be 8 hours or 10?

Seamus: The position I would say, if there’s a regular occurrence, again, you’re looking at the important part of Dudley, which says that it should be reflective of the normal position. If the situation is that they are working the ten hours, their holiday pay should be reflective of that.

Scott: So, it really comes down to this normality, and what does normal look like, are you used to getting the money?

Seamus: Yes. Looking at what is the expectation of the employee. Here is the expectation about even though it’s voluntary, when it comes to their holiday under Dudley because all employees are smart and wise now. They will go online. They will be aware. Their view will be, “Even if I’m doing this on a voluntary basis, I do expect get some return and respect when it comes to my holidays.” If it’s regular, the holiday should reflect that.

Scott: That’s only the first four weeks of any one year that are covered is it, or what about the contractual situation?

Seamus: Yes. I think that Dudley talks about the aspect of 20 days when it comes to European Union, but I think that it’s a bad situation to look at it on the basis of a broad approach when you’re coming to the number of weeks and things like that. It’s best to...you can go back your 12 weeks, certainly, in terms of working out what the average might be, but if there’s a clear understanding between the employee or there’s an acceptance by the employee that overtime has been carried out, certainly I think there will be an expectation from the employee that that should be reflected in their holiday pay.

Scott: For all contractual holidays as well as EU protected...

Seamus: Yes. That’s how I would be looking at this.

Scott: Another one that came in the same question here from the colleague yesterday:

Q. An employee is also contracted for eight hours per week, but this particular employee doesn’t do any extra hours and has on occasion been late for work and therefore only paid for the hours worked. So, when they calculate their holidays over the 12-week period, their average is at seven and a half hours. So, the question here is is it the average earnings that’s payable, even if it equates to lower than the contracted hours and as would be the case where there’s a wage rate change as well?

Seamus: This is an interesting one. You can see already from Dudley how the minds of HR experts and lawyers are starting to go and look at these things. My concern would be that if there’s a contractual period and it’s specified in the contract for eight hours, that that should be reflective of the holidays. You have someone that is late for work or there’s a consistency in respect of the lateness, for me that’s a model that should be dealt with using the disciplinary policy and procedure if appropriate and necessary.

Where there is an acceptance by the employer that although the contract says, for instance, seven hours, but the person is only working six hours, eight on occasion, but say they’re only working six, if the custom and practice, and certainly if they’re doing it over a lengthy period of time, to me, the contractual position has changed and has drop down to those six hours should be reflective.

But I would be a bit concerned about someone that is just a wee bit late for work every so often and they’re losing half an hour and there’s no consistency to it and it’s certainly not, again, you have to look at the normal pattern of work. If it isn’t a situation where it’s not considered to be the normal position, then you would be sticking to the contractual basis of what is there.

Scott: But sometimes it might depend on what the contract says. It may say 'up to eight hours'.

Seamus: Yes, indeed. Always important to carefully read what the contract says and what the actual term and condition is. Again, as you know, what the interpretations of that might be as well.

Scott: We’re going to move on from holiday pay. If you do have any other holiday pay questions, you can send them in through the app now or you can send them on to Seamus and we’ll send you all the details after this podcast. The next one that we’re looking at is some equal pay or equality issues. An interesting one that came in here:

Q. We would like to introduce a policy requiring all staff to speak English whilst at work, but our worry is that we can be accused of discrimination. So, what are the dangers of an English-only rule?

Seamus: This is an interesting question. We certainly seem to have listeners with good questions anyway. The position there would be, I think, that you do need to tread carefully. You need to be careful in the respect of making a solo requirement in relation to any employee speaking English. There would be circumstances and I think it’s all about a balance on this.

For instance, if you have a business in the hospitality industry, you might have a lot of people that are not originally from Northern Ireland, say, and they can be coming from other countries and there can be a lot of them working within the business. There might be a tendency for those employees to converse with their own language.

But it’s important certainly if they are having a client-facing role or a customer-facing role that the customers are feeling uncomfortable as well and it would be important that if there is a business operating and these employees are dealing with the public, that they’re doing so in a language that is considered to be fair for the customer and certainly to give the customer the best experience that they can have.

Certainly I don’t think that there would be any difficulties with employees maybe conversing in their natural language if they’re working in a back office job or something along those lines. But it does bring in to some consideration the impact upon other employees as well because you get in situations where employees are talking in their original language and they may be laughing and there may be an employee who doesn’t understand what they’re saying but maybe has taken a context out of that and feeling that they’re maybe laughed at or there’s some sort of issue arising there.

So, it is a careful one. It’s a balance that needs to be taken. I think that you always have to make that decision with your eye on what is our business, what are the circumstances of our business, what is the role that has been carried out by the employee. But I don’t think that it would be always fair to say that you have to speak solely in English.

Scott: I suppose the counter to that would be that the employer has to ensure that the employees understand particularly health and safety requirements but also other requirements of the job.

Seamus: Yeah.

Scott: I seem to remember a long time ago that the health and safety executive produced these picture card elements to show people in health and safety and different things. But the employer has to make sure that people can understand. So, maybe there’s an element there of saying if English isn’t the first language, they might need interpreters and need more than just somebody saying, “Yeah, yeah.”

Seamus: That’s certainly... I have clients of mine that are on factory floors where they’re working with equipment and health and safety issues. Certainly, I know clients of mine that display both signage in English and in other languages as well just so that everybody is aware of it and also from the point of view of the health and safety play an important role, especially whenever there’s accidents. It’s just about getting the balance right, I think, for looking at your workforce and applying.

It’s always one of my favourite words in the businesses I'm involved with is looking at things reasonably and rationally and looking at the overall picture here in terms of it, I just don’t think it’s as straightforward as saying, “No, you can only speak in English.” Also, presumably whenever recruitment is being done, there’s a certain level of understanding, possibly writing as well is required in terms of a language and you would anticipate that that is dealt with through the recruitment process as well.

Scott: Okay. Thanks very much. You’re listening to Seamus McGranaghan from O’Reilly Stewart in conversation with Scott Alexander from Legal-Island. If you want to send in any questions, they come in anonymously through the chat box or you can send them in after this.

We’re going to move to another issue still with equality but moving into absence:

Q. Can we offer a disabled employee lower paid work if deemed unfit to fulfil their role by occupational health?

Seamus: Again, this is a matter that any employer is going to have to tread very carefully. You would anticipate certainly that occupational health has been taken upon. There is a report that’s been received. Again, it’s looking about the balance here and being fair to the employee. I think sometimes there can be certainly a view by employers that if they have a disabled client, that they have to bend over backwards in terms of accommodation.

The legislation talks about reasonableness of it. It also talks about those amendments those that can be made. Again, those are reasonable amendments that have to be made. It’s really about, I think, sitting down with the employee and explaining to the employee, consulting with the employee, having those conversations with the employee about the practicalities of what they can and can’t do in the workplace.

If it is a situation where the job they were doing, they were unable to do that and they’re unable to fulfil that element of their work and their duties and their contract, the employer would be obliged to look at alternatives and see what alternatives are available within the business. It may be that there’s an element of the job they can still do but there’s another element they can’t and maybe looking to see what else is available, possible redeployment and looking at all of those types of things before there’s any decision made as to whether or not the employer can retain the employment or whether or not they’re going to cut the salary.

I think just in terms of salary, if all of the possibilities are looked at, there is an available other position, there is a suitable position that the employee is agreeable to do it. The employer does need to discuss with the employee the reality that there’s a benchmark and there’s a salary in relation to that role. Otherwise, you could potentially be getting in the realms of equal pay claims and things like that.

Scott: Okay. That wouldn’t last forever. There was a case in 2004 at the House of Lords or then House of Lords, Archibald v Fife.

Seamus: Fife, yes.

Scott: That involved a street cleaner, if I remember rightly. It was a woman, Mrs. Archibald. She had applied for about 100 jobs internally and they’d given her an admin job and her argument was that they should have offered her without the need for competition to get a higher paid job. That was ruled to be the case applied by our Supreme Court then.

Seamus: Yes.

Scott: It’s not necessarily the case that you’re looking at a lower paid job. You could be looking at a higher paid job if the person is competent and capable. That would mean that others who fancy that job just wouldn’t get a look in.

Seamus: Yeah. It seems strange in that sense of a decision, but it is realms of HR equality laws now, not what I fall into, but it is about looking at all of the available positions and it’s about suitability for the position as well. I think that’s an important thing. You shouldn’t just be limited in relation to thinking it has to be a job that’s lower down the pay scale. It could be something that is up the pay scale as well.

But really, it’s about engaging with the employee and it’s about consultation with the employee and seeking to get agreement. The likelihood is probably that if you don’t consult or you don’t engage and ultimately if you don’t get agreement, you could potentially be looking at a claim. It’s really then about making sure the employer has all of the records and it really is important to make sure that you do have your evidence trail in terms of your consultation meetings that you’ve had, your minutes in respect to that.

You have your occupational health reports, how those were discussed. Sometimes if you get occupational health reports, they will suggest that you seek further medical evidence from specialists and just to make sure those are followed through on as well.

Scott: In a not dissimilar vein, if any listeners want to send in any questions for those as well:

Q. We are currently considering dismissing an employee who’s absent from work on claims of ill health. However, we have received conflicting medical advice in relation to his absence. His GP says he is not fit to return to work, however the company doctor has said he is fit to return to work but has suggested we obtain a psychiatric report. How do we handle it?

Seamus: Well, in my view, there is various types of medical evidence that can be obtained. Sometimes the GP notes and records are obtained in addition to getting a GP report. But here, we have conflicting evidence is the bud of the issue, really, with the GP saying he’s not fit to return and we have the independent occupational health saying that he is.

With the GP report, sometimes I find, and it’s no criticism of general practitioners, but sometimes what happens with the general practitioners is they receive the request for a report. They get in contact with the employee and the employee comes in to see them. Often I find you can just get a verbatim report of what the employee has told the general practitioner. Sometimes it can lack a bit of detail and a true opinion.

Occupational health, I find, are independent. As a practitioner in the legal system, we will get good and bad occupational health reports. That’s the reality of it. You have to take it as you find it. It’s interesting on this one that the occupational health doctor is suggesting a further psychiatric report, which is similar to what we talked about there and seeking a further specialist report would be important. They are talking about looking at dismissing the employee, so it’s important they do obtain that psychiatric report.

For me, when it comes down to instructing GPs or the more specialist medical reports, it’s important to give direction and instruction to the doctor. You have to tell the doctor what it is that you’re looking...what is the information that you’re seeking from the appointment or from the report. Sometimes it makes it too easy just to say we need a report and the employee has started on this job and has been absent for so long.

I think it’s always helpful to give more detail. You have to be careful about your letter that you do provide to the GP and make sure that it is fair because under data protection, the employee could also seek to obtain a copy of that letter that went from the employer instructing the occupational health and the GP.

It should be fair and balanced, but it should also make sure you’re getting answers to the questions you need to know and then that way, you tend to secure a much better improved report that will really help you along the way. But certainly in this one, before you make any decisions about dismissing or anything else, you need to have your medical evidence in place.

Scott: Thank you, Seamus. We had a question just come in there on the chat box, which is moving sickness to a different area, I think:

Q. In sickness cases where an employee creates posts on social media platforms that may contradict or undermine their reasons for absence, to what extent is it reasonable for the employer to address this with the employer? Say you’ve spotted something on Facebook or Snapchat or whatever that this “sick” employee is skydiving or whatever and they’ve got a sore back. What can you do about that as an employer?

Seamus: I’ve had a number of similar cases myself where this has happened and we’ve had a number of cases where employees are off on sick and then they’re on social media doing various activities that concern the employer that if the employer is giving them sick pay, that they’re also then doing things that wouldn’t be helpful to recovery of their position.

My view is always that you need to be very careful about that. Certainly from prior tribunal claims as well, it’s not something that the employer wants to react rashly to. Certainly a phone call or a welfare meeting with the employee when something like that flags up would be very helpful.

I’ve had cases in the past where we’ve had particularly underlying mental health issues, where...I know you mentioned skydiving. That would be fairly clear cut, if someone’s off with a bad back but they’re able to skydive. But certainly under mental health issues, it’s important not to jump the gun and make assumptions. I had a case previously where the GP came back to say the activities that the employee was undertaking were helpful for his recovery and would have aided his recovery.

That was the surprising to the employer to learn that, but that was what the employer had and the route they had taken. So, careful about not jumping the gun. But I think where it’s obvious that there’s clear problems arising from maybe it’s photographs or postings to say, “I’ve done X, Y and Z,” I think the first step on that is arrange a welfare meeting with the employee but don’t dive into sending a disciplinary letter.

Scott: This is a big problem where the employer jumps to conclusions because it could well be in the best interest of therapeutic...

Seamus: Yes.

Scott: I’d argue skydiving is a bit easier to spot.

Seamus: The employer may say, “I know there’s nothing wrong with this employee and I’m annoyed and upset and frustrated by it.” Sometimes you can act rashly, but it’s best not to, I think. Gather your evidence, maybe print off because sometimes they can put them on social media and they can be taken off. Make sure that you get copies of the time and then I think it’s about setting up your welfare meeting and maybe using your welfare meeting partly as an investigator to what the circumstances would be.

Scott: It often comes down to relationships at work. The employer jumps in thinking, “I’m going to get that person. I’m going to get them.” So, they go looking for evidence and ignore all the contradictory stuff that says it’s in the employer's interest for the employee to be on holiday.

Seamus: Once the wheels of the wagon are set in motion sometimes, it’s hard to come back from that as well.

Scott: We have a totally different question. There is another social media one here, but we’ve just had one come in that’s quite clever, I think:

Q. When is an employee resignation binding and therefore cannot be rescinded? When must you accept the resignation?

Seamus: That is a smart question. Again, I think that you have to tread with caution when it comes to resignations.

Scott: I’ve seen that. Go on.

Seamus: I’ve had a number of cases and I’ve actually ran cases in tribunal where resignations have been given in the heat of the moment and they have subsequently been retracted. We’ve had to run cases to find out what the tribunal’s view is in relation to it. Really, from experience, the outcome and the workings of that have been that it is possible for an employee to withdraw a resignation, whether you want to call it renegement or whatever it is, but you do need to think about things that happen the heat of the moment.

A lot of resignations can happen where there has maybe been a dispute or if someone’s got their wires crossed or there’s some sort of confusion that has arisen and some of them will storm out of work.

Scott: “You accused me of skydiving, that’s what you did.”

Seamus: Maybe then, what I tend to see happen is they’ll do that and rather than correct themselves in terms of resignation, they’ll put in the sick line and then the employer is really left and wondering what has happened here. Again, it’s about keeping the lines of communication open.

One of the other things is that in prior cases, there was direction from the tribunal that the employers should really consider the retraction of the engagement unless they have taken steps at that point to recruit or to hire or whatever they said, “Sorry, you have resigned from that position and we’ve reorganised and we don’t any longer need that position.” You have to have justification for that. The tribunal really will look down into where is the justification if you haven’t properly considered the retraction of the resignation.

It’s different if someone’s saying, “I want to retract my resignation,” and the employer is saying, “Well, good, retract your resignation, but there will be a disciplinary procedure that can end up potentially gross misconduct.” There’s various ways the employer needs to deal with that, but tread carefully, particularly where these resignations are heat of the moment. Where a resignation is and someone has come in there saying, “I’m moving on. I’ve got another job.”

When they get another job is really a good indicator that they want to go. Sometimes that other job can be rescinded and maybe their references haven’t checked out and they’re back saying, “Look, I want to keep my job.” It’s really for the company to decide at that point, what is the provision for them. If they’ve already put out advertisements for recruitment, they may need to say to the employee, “You’re going to have to reapply for the post.”

Scott: Which is tough. It’s on the employee if they...

Seamus: It is.

Scott: One last question here and then we’re going to wrap up for the half hour:

Q. Is there any onus on employers to provide smoking areas?

Seamus: Well, as far as I’m aware, there isn’t any legal obligation to provide a smoking area. Interestingly, what you’ll find in a lot of company handbooks is that there would be a smoking area provided or it will simply say you’re not allowed to smoke on or near the premises. Employers could be very uptight of people wearing uniforms and standing outside the front of businesses smoking.

It can be a practical step for an employer to provide somewhere for the employees to smoke and sometimes that could be an enclosed area or somewhere where it is closed off, but certainly I’m not aware of there being a legal obligation to provide that, but just on a practical basis it might be best for an employer to do that.

Scott: Okay. We’re going to wrap up there. we’ve just had one last question, “Is it possible to get a transcript of this?” Yes, we will be providing a transcript and we will be creating a podcast as well. So, watch out for those coming in the next few days.

Let us know what you think. We’ll send you a survey out. Everybody is at the moment. But we have no idea what you think of this and how you think we should change it, improve it. How could you improve perfect? Let us know what you think. If you have any questions, we’ve had quite a few today, if you have other questions, we will start with those in the next podcast, which I think is going to be on the 11th of October at 12:00.

Thank you very much to Seamus McGranaghan for all his answers today and O’Reilly Stewart. Thank you all for listening and hopefully we’ll see you at our next 'Any Questions' webinar the 11th of October. Here's the link to register:
https://register.gotowebinar.com/register/6181388786284647682