Scott Alexander, Head of Learning and Development, and Rolanda Markey, Learning and Development Services Officer at Legal Island, discusses your Northern Ireland employment law questions and topical HR issues with Seamus McGranaghan from the employment team at O'Reilly Stewart Solicitors.

Topics covered in this month's webinar include:

• Managing Excess TOIL
• Investigation Meetings - Individual or Group
• E-signatures
• Coronavirus - Employment Implications

Don’t forget to visit the ‘Seamus Says – Employment Law Discussion’ section on the employment law hub, which provides answers to hundreds of employment-related questions addressed throughout this webinar series.

Transcript

Scott: Good morning, everybody. This is Scott Alexander. I'm from Legal-Island. I'm here with Seamus McGranaghan from O'Reilly Stewart Solicitors. We're live in Belfast. We also have Rolanda Markey from the L&D team at Legal-Island. We're going to take you through the usual "Employment Law at 11" webinar.

Before we start, a little bit of an apology. We had a discussion last month about political belief. The wording is different in Northern Ireland where it talks about having a religious or similar philosophical belief. Anyway, I think we confused a few people and confused ourselves in the process. So we've taken that bit out of the transcript and the recording if you go online, and we've put in a review of the English case on ethical veganism.

Funnily enough, the guidance from the Equality Commission still talks about veganism being a potential philosophical belief whereas, of course, the case in England talked about ethical veganism and having to go beyond just not eating dairy products and meat products and so on.

Anyway, we've tried to clarify that if you want to go on. I suppose it shows it's live and that we don't get everything absolutely correct, and there is a failsafe caution there saying, "This is not legal advice". Anyway, hopefully, you've enjoyed that.

We've quite a few of you joining us now. As usual, if you haven't been here before, just to let you know, there's a little box on your screen which allows you to send in questions. We have a number of questions that have come in from listeners and other customers of Legal-Island over the period. They're all anonymous.

Poll Questions

Does your organisation have a layoff policy?

Does your organisation have a time in lieu policy?

Would you be in favour of introducing two weeks parental bereavement leave?

Seamus: I think it's a fairly high percentage. Hopefully so, anyway.

Scott: It's 100%. Well done, folks. It's 100%. We're going to be getting to parental leave. Let's chat about that just in general. We know the regulations are there. We published them on Legal-Island last week, I believe, the English ones, including the payment that's coming through. We'll just briefly cover that as far as we know.

Is Parental Bereavement Leave Coming into Northern Ireland?

Seamus: The regulations in England are known as Parental Bereavement Leave Regulations 2020. It's also known as Jack's Law. Jack was a poor boy that drowned, and his mother has been advocating for this bereavement leave for parents. It goes into effect in England on the 6th of April of this year.

I did see it for the first time come up on Twitter yesterday. I've been cautious about that, but I do understand that this will formally come out later on today, so it is breaking news in that sense. But I did see it on Twitter yesterday that the Minister for the Department of Economy had said that she was very keen to bring the provisions into Northern Ireland as well. Hopefully, we'll see those.

The idea behind this is that, presently, there aren't any provisions in place for any parent that has a child that dies or passes away, so there's no bereavement leave now.

I think, from my experience, employers do tend to be good about the situations. This is never a pleasant situation, and employers are sympathetic, but we've nothing in law about that. If you get a harsh or a hard-core employer that maybe doesn't provide for anything at all, at least this gives the employee a bit of comfort here.

It is two weeks. Questions around if you are a parent and you lose a child . . . this set of legislation only provides for a child up to the age of 18, so there's no entitlement if you have a child over 18 that dies. There will be questions, I think, for a lot of people in and around that, but it only applies for a child up to and under 18, and thereafter there's a right for these two weeks.

Very similar provisions in terms of the entitlement for pay. It's similar to what you would see on a statutory basis anyway for the likes of maternity leave. There is a requirement that you have to be employed for at least 26 weeks before there is an entitlement for pay. If you don't have the entitlement at that point, you still get two weeks off, but it's unpaid at that point. So just a few things there to watch out for.

Scott: It's similar to all the maternity stuff and the other parental leave and so on, the £151.20, or whatever it is, or 90% of your earnings for those two weeks. It's got to be taken within 56 weeks to account for things like anniversaries and so on.

Seamus: Yeah, if the anniversary of the death or if there are birthdays, there are certain periods like that. You get these two weeks. You can only take them in one-week blocks. You can take a week, and then you can take another week maybe around anniversaries or birthdays and things like that as well.

For a lot of people, it doesn't seem to have gone far enough, but it is a starting point, and if you look further into what's happening in Europe and some of the Nordic countries as well, they have very much moved on a lot of things, not just the bereavement leave but into parental leave and things like that. You can see the advances that are being made for equality in and around all that, but this is, I think, to be welcomed, and it's a positive step.

You need to be careful as well. One thing that was flagged up that I thought was interesting was again in Northern Ireland. People have different religious beliefs when it comes to funeral arrangements and things like that. Sometimes funerals are very quick. Sometimes they aren't. They can be a number of weeks away. Employers do need to bear that in mind as well, and we do live in a diverse society now.

Obviously, post any sort of bereavement, there can be issues that arise in relation to mental health and in relation to how quickly people can recover and not recover. Post-traumatic stress disorder is another one. We can see the benefit of our discrimination laws step in then at that point to protect the employee.

There's a lot contained within it, but I have no doubt that I think it would be a positive step, certainly, to align the legislation here in Northern Ireland as well.

Time Off For Dependents – Potential For Unpaid Time off In A Bereavement

Rolanda: Just before we move on from that, something did occur to me. I'm going back to my LRA days and trying to remember this, but time off for dependents, you would be entitled to a reasonable amount of unpaid time off to deal with the death of a dependent.

Seamus: That's right.

Rolanda: But I suppose that time off for dependents leave has always seemed to be quite short. But again, what is reasonable?

Seamus: From my experience, some employers will within the handbook set out the number of days that you're allowed off, and they will say whether it's an immediate family member or close family member and all sorts of stuff like that. They'll cover it off.

But I've never seen three days for bereavement of a parent or a sibling or something along those lines. Certainly, within TNC guidance for teachers, they set out the number of days. That will need to be looked at if this legislation is brought in. I think probably there will be a period of time before we see it. It might be a number of months before we get anything in writing, but it certainly is a positive step for us.

Scott: We usually just follow the GB situation, so it'll probably mirror that. There's not going to be any resistance. If 100% of our audience are in favour of it and the unions are in favour and the CBI and everyone else, I don't think there's going to be any difficulty for Diane Dodds to get it through the committee.

Seamus: The regulations, as you say, are up on Legal-Island's website there. You can pull them down and have a look at them. They're fairly short and sweet. It's not that there are reams of pages to go through or anything like that. I would expect that it will be very similar for what's brought in for us here in Northern Ireland.

Scott: They come with all the usual protections on detriment and unfair dismissal and the rest of the things that would apply, the automatic unfair dismissal things and so on. I'm sure that it'll be the same in Northern Ireland, but we'll keep you updated, everyone.

Garden Leave – Use and Duration

Let's have our first proper question.

"When and for how long should garden leave be used? When might it become a breach of contract?"

The background to this, Seamus, is that we got a query from someone in Ireland, I think it was, on our website who had been . . . I think it was actually a suspension. I think they had been suspended for months pending an investigation, but they called it garden leave.

Let's look at garden leave, the concept of it. What is it? For how long might it be used and in what kind of circumstance?

Seamus: The basics of garden leave are that it is what it says on the tin to an extent. You go home and tend to your garden or you sit in the garden. It's usually paid, and you don't have to work during that period. You normally see it contained within contracts of employment where the employer will reserve a right to place an employee on garden leave.

Really, where I would see it mostly used would be at times of resignation when the employee has put in a resignation to the employer and the employer, as a precautionary basis, will say, "We're going to put you out on garden leave here because we need to protect our interests. We need to protect the business interests".

Certainly, from a legal perspective, a lot of the commentary comes down that the employer has to have a legitimate interest for protecting its business, and that has to be reasonable. It has to be sensible.

So the question looks at here how long it should be used for. It tends to be in contracts for the employees that are further up the hierarchy, so the managers, the directors, the people that there would be sensitivity around.

Scott: Some knowledge workers or sales force, you find them in that kind of thing.

Seamus: Yes. Even in solicitor practices, if you have a large client base that you've developed yourself, the employer will seek to protect that. They may put you out on garden leave in order to give them an opportunity maybe to go and meet those clients and make sure the clients are going to stay with the firm and not travel with the employee that's leaving. Those sorts of things happen there.

It can be very frustrating for an employee that is put out on garden leave. One of the issues that you need to consider is this aspect of the length of the garden leave. If you have a contract of employment with a notice period of six months, you provide your resignation, and the employer immediately that day puts you out on garden leave . . . six months on garden leave to some people might sound fantastic. Six months' pay, and being able to stay at home. But there's a risk that it can stifle your experience. It can stifle your skill.

It also prevents you from starting in another role during that period, and that can be frustrating because a lot of times when there are these longer notice periods, the employee is anticipating in advance that, "I might be able to do a deal here with my employer, get out a bit earlier, and get across to the new employer". Certainly, the new employer will not be happy if you're saying, "I have a six-month notice period to do here".

Where this all can lead to and can develop is oftentimes that the employee doesn't adhere to the garden leave provisions and then seeks to start with their new employer earlier. You can end up in the High Court with injunctive relief cases that are sought, and that's forcing the employee to abide by the terms and conditions of their employment.

The key to that for me is that if you're going to have garden leave, it needs to be in the contract of employment. I think it creates difficulties for you, and I have had this in the past where clients will say, "But we're paying them in any event. They're not losing anything". I'd be saying, "But it's not in your contract of employment here, and it's going to cause you difficulties because how are you supposed to enforce something that isn't in the contract? There's no contractual relationship in that respect".

Scott: Generally, there's no right to work for most employees. There's a right to be paid. I think that's where your employers might have taken it from, saying, "No, we're paying them. It's okay". But there's more to employment than just being paid. There's certainly case law in the past where actors, singers, and whatever, you have to be in the public eye. But there are more mundane jobs, if you like, that are also covered by that right to work.

Seamus: Absolutely. I think in relation to the second part of the question as to what's reasonable and what constitutes a breach, there's certainly case law. One of the longest cases I could find was Symbian Ltd v Christensen of 2000, and the aspect was in and around that the employer needed to show the existence of a legitimate interest in order to enforce the restriction in the contract.

I'll come back to the restrictive elements in a minute or two, but when we come to look at the duration of the length of the garden leave period, there are a couple things that you need to think about.

If it's going to cause a difficulty for the employee in relation to their work, if they are paid commissions and bonuses and things like that, I think you have to take it. If that's on a monthly basis, that's going to fall in as their pay, and they're going to have to be paid that. Employees get very worried that if they're on garden leave they're going to lose their benefits and entitlements that they would get.

The second part of it is where you have to work, where there's an element that you have to maintain a professional level of skill. For the likes of doctors or surgeons, they have to be continually working in order to develop their skills and to maintain those skills, and if there's a period of garden leave where they're prevented from doing that, it can have an impact on their ability then to continue to do the job and those sorts of things.

The other aspect as well is someone in the entertainment industry that needs to be out there. If they're not out there and they come off radar for a period of time, they're going to lose their . . .

Scott: Chance to work. They're going to be forgotten. That's the trouble.

Seamus: That's the problem with it. We probably don't deal every day with those sorts of situations, but, certainly, on the other side of it where there's a CPD element to your job, if you're prevented from doing that as a result of a period of garden leave, it could leave you in difficulties and in strife.

Scott: Moving on from garden leave, because there are probably not that many people with a gardening leave clause in their contract. Garden or gardening, it doesn't really matter, folks.

Precautionary Suspension – How Long Is Reasonable?

Assuming I'm correct in that this person who wrote in had been suspended for ages pending an investigation that seems to have gone nowhere, I've seen that in the public sector a lot. They start growing arms and legs, all these investigations. They're interviewing the whole department, and it takes forever to go through. Then something breaks down, and somebody takes out a grievance during it, and that causes another thing. So you can be suspended for quite a while.

Where does fairness lie? When does that become a breach?

Seamus: Certainly, you look at the LRA Code of Practice in relation to disciplinary, and there's a specific part of that that relates to suspensions. Suspensions in general tend to be of a precautionary nature, or sometimes they can be, to allow the organisation to conduct a proper investigation.

You're exactly right. I've done cases where I have seen, certainly in civil service and on the public side, a suspension for over a year while an investigation's been on-going. There has to be a tipping point there were the employee says, "This has gone on too long. This is resulting in a fundamental breach of my contract of employment".

Now, as we know, constructive dismissal claims are difficult because the onus lies on the employee to substantiate their claim that the breach is both fundamental and irrevocable, but, certainly, there is case law there.

I think there's an obiter from Lady Hale before she was Lady Hale. The case relates to someone where an allegation had been made that there had been grooming of a minor. The employee was saying, "That's such a devastating step to take in relation to suspension to put those allegations to me. It results in a breach of my contract of employment". There's definitely a balancing act with it.

For me, suspensions, the onus and the obligation on the employer is to move as quickly as possible. An employee being out on suspension will have an impact upon their mental health. It will have an impact upon how much they remember, how much they can recall the longer that they're out. They're also removed, generally, from all of their access to their computer, their facilities, and all those sorts of things in order to get evidence and things like that.

So there is a duty to move as quickly as possible with it. I think on the suspension side of it, there's definitely a tipping point where the employer is slow or is dragging their heels in relation to it in order just to keep the employee out. That becomes punitive at that point and I think the tipping balance for the employee to say, "Enough is enough". I think it's definitely dependent upon the individual circumstances.

Certainly, whenever I'm advising on an employee that is suspended, it should be reviewed. It should be considered maybe on a weekly basis or every two weeks.

The other side with it as well is that the employee is kept informed and updated as to what is happening during the period of suspension, i.e., what's happening with the investigation. If there is a delay, and these things do happen, there can be delays, but you're notifying the employee of it and saying, "This is where we're at in relation to the investigation. We anticipate that it's going to take another two weeks", or whatever it is, "to complete the investigation".

Scott: There's loads of evidence and case law saying that suspension isn't a mutual act, and if you've got that Sword of Damocles over your head for months and months and months, then dirt sticks, and people would be complaining, I think, and rightly complaining, like our customer did, about this stuff.

Seamus: There's certainly an element from the employee's perspective where the employee feels . . . There's a meeting. They go back to their desk to get their coat because they've been told that they have been suspended. They try to log into their computer. They're shut out. It can feel very much for an employee that, "The decision's been made here. I'm out the door". Their mobile phone is removed from them, or their access on their phone is removed, and they feel very much that they're out in the cold and that the decision's been made here.

That's where I think the employer needs to be very careful with the employee and explain the process. In my letters we're drafting for employers for suspension and things like that, I say that it is a precautionary step or the reason why the employer feels the need to suspend.

Scott: Thank you very much, Seamus. You're listening to Seamus McGranaghan there from O'Reilly Stewart. This is our usual "Employment Law at 11" webinar. You can listen back later on this afternoon, I would hope, and the transcript will be up in a couple of weeks where we break the questions down.

When will Parental Bereavement Leave be Introduced in NI?

Just before we move on to the next question, we've had a couple of queries here about when the parental bereavement leave will be introduced in Northern Ireland.

We don't actually know. What we've heard is that at committee in Stormont on Wednesday, Diane Dodds said that it would be introduced in Northern Ireland as soon as possible. Obviously, there may be consultation issues and so on. There's not going to be a lot of opposition. We don't know when it's going to be though. We're hoping it'll actually get through and implemented.

You can hear the sirens. That's proves that we're live in Belfast. We'll get back to another question that's come in.

But first of all, we'll go over to Rolanda. You've got another question that came in through the website.

Electronic Signatures – Are They Legally Acceptable?

Rolanda: Things are much more modern now, so this question is about electronic signatures.

Is it legally permissible to sign employment contracts with electronic signatures without the need for follow-up wet signatures or a hard copy document with an actual pen signature?

Seamus: The short answer to that is that I don't see any difficulties with documents being signed and then scanned in and saved, whether it's your computer system or you have a software or a case management system.

Certainly, within our office, we're doing the whole paper-lite task at the minute, and we're looking into what we need to keep and what we don't need to keep. We've taken the advice from the Law Society here in relation to that as well.

The general gist is you do need to be careful. There are certain legal documents that you will need to keep original and you'll need to keep the wet signature on it, particularly in and around the likes of if you think of wills or people's deeds for properties and things like that. Certainly, the banks require it for registration purposes and things like that.

When it comes to employment contracts, my view on it would be that there's no difficulty in the contract being signed and maybe scanned and sent back in across email as long as it's logged on the system and as long as it's retained on the system for future use. A lot of organisations use a sort of intranet where employees can go into their own personnel file and see those documents and see policies and procedures.

But I don't have any difficulties. I think it's acceptable in terms of an employment contract.

One aspect, I suppose, that I know myself has come up is where you're maybe looking for documents, whenever they're signed by the employee, to be witnessed by another person. Certainly, sometimes there are addendums or there are separate policies and procedures for the likes of restrictive covenants that are being introduced that they are assigned and possibly witnessed as well.

I don't have any difficulty with a witness as long as the witness is present to witness the signature, but you do be a bit sceptical sometimes that the document is signed and then sent to the witness to say they witnessed the signature and then it's sent back to you.

But I think, certainly, the bigger issue now really is that the document comes back and that it's saved onto the system, and then that we deal with all our GDPR precautions there in respect of access to that and retention of the document and looking at those factors as well.

But I think provided that it's saved on the system and that you're able to print it off at any stage or that you're able to look at it at any stage is certainly sufficient.

Rolanda: So is it okay then, just to follow on, to just have a soft copy of the document? You send somebody a contract. They say, "Great. I'm looking forward to starting". They sign it electronically. It comes back. You then store that online or on some sort of database personnel system, and there's no printout at all. Are you saying that's okay then essentially?

Seamus: I think it's fine. It's a duplicate of it on the system. I know that the aspect now is that people are looking to . . . it's the safer way, almost, to store the documents safely password-protected on your computer system than it is for them to be in a filing cabinet.

A lot of people, and I include myself in this, find it strange not working with paper and reading off the screen and things like that. It takes a bit of time to get used to it, but there's certainly no legal impediment for it to happen that way.

Just a couple of practical considerations. If you're going to save it on the system, make sure that it's backed up multiple times, and that if you lose one system, you're able to get it somewhere else, and that the backups are in different locations, and that there are safeguards for your privacy, and that your process is in place for destruction of the document once you're out of your safe period of relevancy.

I think this is certainly the way that things are going to move forward in the future. Hopefully, it will give us a lot more space in our offices.

Scott: Not that we have any bits of paper sitting on this desk in front of us.

Dealing with Excess – TOIL – How Do We Handle This?

The next question we have, this is a strange one that we got in, funnily enough. It's another Irish one. We get lots of queries on our website. You can leave them on the website. What we do is we anonymise them, obviously, and deal with them.

This one we got.

"I have recently joined a start-up company as HR. During that time, 5 employees have built up to between 12 and 15 weeks' time in lieu. I have, as I see it, exceptional circumstances as they were in the start-up, but I need them to get rid of this time in lieu before the fiscal year 2020 starts. What do you suggest would be the best approach? The employees are Chinese working for a China company in Ireland". In this case, in Northern Ireland.

So supposing you're in a similar circumstance and apply the circumstances here ... there's no 48-hour opt-out in Ireland, so assume that we've got that in Northern Ireland. What's the situation?

Seamus: You have 12 to 15 weeks' time in lieu. That's a lot of . . .

Scott: That's a lot of time off.

Seamus: That goes to the aspect for me that time in lieu, or TOIL as we call it, is a super tool in relation to being able to work around difficulties and resourcing and everything else, and employees quite like it as well. It's great provided that it's managed well. I think that that's the key aspects of it with TOIL, that you do have to manage it.

I'm not for a second giving this person a hard time about the amount of TOIL that's been built up because they are in start-up, and things like that can happen, but then we look at what the solution is here.

The question is that she wants to get rid of the TOIL time by the end of the fiscal year. I'm not quite sure, whenever I look at it and break it down, that there's even sufficient time now, really, to do that. I think other alternatives are going to have to be looked at here.

I think just generally in relation to TOIL itself, the best position that you can present from is if you have something agreed in writing, and that should be a policy or procedure in relation to TOIL. Alternatively, you're sitting down with the employee and saying, "Listen. We're going to have a busy period over the next lot of months. We need to agree what our ramifications are here and what we're going to work with over the next lot of months".

You do need to be careful here. Obviously, in Northern Ireland, we have our working time regulations, and if the employee is going to be working for more than 48 hours a week, you need to get them to sign the opt-out. They have to be agreeable. You can't force them to do that. There has to be an agreement on both sides.

Scott: They can give that up as well, and it doesn't look like they have in this particular circumstance because they've been working.

Seamus: They've been working, working, working by the sounds of it this past year.

Scott: There are probably breaches of working time regulations all over the place because you need your 11 hours between shifts. You've got to have your rest break, your 20 minutes every 6 hours, or within a time period of 6 hours or more.

There are lots of breaches. I would be quite scared if I was this HR person here because it's unlikely that those people are going to end up healthy. The whole point of working time regulations and holidays and such, and I don't know if they've had any holidays, is that if you don't get them you get sick.

Seamus: Yeah, that's it. Then you have a resource problem within your business and whether you can function or not at that point. They're there for a reason.

Look, it happens. You have busy periods, and everybody is working hard, but you do need to build in time off in relation to that. I think that's an important step in terms of employers looking after the health and safety and the welfare of their employees.

The options here, really, in terms of trying to tackle this, I think that there are a couple of things that could be done. Just because TOIL has built up doesn't give the employee an automatic right to time off whenever they want, but it's going to always have to be agreed, and that's going to have to be on the basis that the business can facilitate it. You could probably clear some of this by allowing some time off in lieu.

You could maybe possibly look at some carryover into the next fiscal year. But again, you need to be careful that you're not going to have another build-up of it.

I'd also be slightly concerned when it builds up like that of any impact it's going to have on holiday pay as well. Obviously, if they're doing a lot of overtime, there could be an issue that arises in relation to that they haven't taken their holidays or that they feel that there's further entitlement.

You could look to pay it out. I'd have a discussion with the employees. We talked briefly just about this before we came on live. You could possibly look to do a deal with an employee in relation to it, accepting the fact that the employee would be short-changed, but sometimes there might be an acceptance.

Scott: A bird in the hand is better than two in the bush.

Seamus: Well, that's it. You can get a very dedicated employee that says, "I just really enjoy the job. I'm happy to continue doing the work that I am". You're going to have to have a serious conversation with an employee like that because they're going to get to the point where they are going to fall sick, but it may be that you can do a deal with them in relation to it or, alternatively, just look to pay out the time that has built up.

Scott: There may also be national minimum wage issues there if they're getting less than national minimum wage per hour when you add up the hours.

Seamus: You do need to be cognizant of that.

Scott: If they haven't paid it, and they don't pay it, then there may be statutory breaches there too, in which case they could be looking at fines.

Seamus: I have a client that contacted me during the week, an employee that is limited to doing 16 hours a week due to their restrictions on benefits and things that they get. The employee had gone above that because they were saving for a deposit on a house and then got a bill from the taxman, essentially, for monies that sent the employee into a bit of a panic.

I had suggested that maybe the other way of going around it is to look at TOIL to see if there's a way that you can manage that in a better way, and I think that's fine provided that you do manage it.

I think there are a couple of things in relation to managing, or just to clarify the details of the overtime and the TOIL that is available and that could be taken, because you don't want this huge build-up.

You need to agree to the time off in lieu in terms of writing, and I think that it's important is that it is taken down into writing, and agree to times when the TOIL can be taken. You want to be looking at your role and fulfilling your existing obligations, and then maybe just establishing a time for recording and approving.

A big problem for me in TOIL is that the employee will come and say, "I have 60 hours of TOIL built up", and the employer will say, "I have no evidence of that. I do remember seeing you a couple of late nights". There has to be a way to record it just to make sure that it's done properly.

Can You Make A Payment For Excess TOIL

Rolanda: Just before we move on to the next one, just to clarify, because there's another wee question in there. There may be circumstances where you could reach agreement to make a payment to the person for excess TOIL, but you would have to be very clear that that was agreed.

Seamus: Yes. I think you'd want to make sure that that was recorded in writing as well if there was an agreement or possibly even involve the Labour Relations Agency, but I would be a bit concerned whether the agency would balk. They have a job and a duty to do. They mightn't be so happy with an employee being short-changed, but I think certainly keep it recorded in writing.

I'm not saying that that's going to work. People are probably saying, "Who would agree to less than what they're entitled to?" But there are circumstances where employees will see, "There's not going to be a position for me to be able to take all of this, and if it's TOIL, I can work with it".

Lay-Off from Work – Do We Need To Pay Employees During Lay Off?

Rolanda: Our next question is really, I suppose, about layoff policies. We were asking about that at the outset.

"We have an employee who has returned from China. We believe that the advice is that they should not attend work. Do we have to continue paying them?"

Seamus: This is all in and around this coronavirus that now has taken over the news, and I think that's probably the first point. One of the big things that employers need to do is to keep on top of this. They need to keep their information fresh. The World Health Organization has various publications and the government publications as well as to where we are at.

My understanding of the situation is that . . . wary of someone returning from China, red flags up, you need to be cautious. I can imagine a number of situations arising.

If the employee comes home and presents with no symptoms of anything whatsoever, they may say, "It's fine for me to return to work". The employer may have some hesitation about that, and you might get some kickback from your other employees in the office who say, "This person is just coming back. I have kids at home. I don't want a risk of this".

Some of the advice that I've seen and some of the guidance has been that when the employer is concerned, you can ask the employee to attend their doctor to get a statement of fitness for work. But my understanding with this particular virus is that it takes 14 days sometimes before it can show, essentially, so precautionary suspensions or something like that can be put in place.

If the employee is sick from the virus, I think your normal sick pay scheme kicks in, whether that's company sick pay or statutory sick pay, whatever way that works out.

The more interesting aspect for this might be where the employee has been travelling for work and will come back and say, "This has happened to me when I have been on a period of work. There's a responsibility for my employer to look after me in those circumstances". There are various things that can happen.

The other part of it, and what Scott had mentioned earlier on, is I think that the anticipation is that there is going to be a shortage of supplies coming from China, and that might have a knock-on effect of our ability to do jobs and work in Northern Ireland. You could be looking then at periods of layoff, and what are the entitlements in and around layoff.

For me, there's an argument that if the employee isn't fit to attend work or is precluded from attending work, there's no strict right for the employer to pay them if they can't actually come into work. The responsibility is on them to meet their contractual duties in that sense. But I think that it does become difficult, for instance, if the employee has been travelling for work.

Scott: Seamus, going back to the layoff, there are a number of companies here who operate with Chinese supplies. In fact, we could probably look around this office and every other office. You're going to find something that's come from China and such like. So you may not be able to provide the work through no fault of your own as an employer. The layoff provisions that are in statute in the '96 order will kick in.

Seamus: Yes, guaranteed payments.

Scott: Guaranteed payments. All that kind of stuff is brilliant, but you still need it in your contract to allow you to lay somebody off. Our poll showed that something like 85% of the people listening don't have a layoff clause in their contract. So they're probably stuck having to pay people or make redundancies. This is a serious thing if this spreads, because the last person I heard, anyway, in the UK that had coronavirus wasn't in China. They were somewhere else in Asia.

Seamus: I think they were in Singapore.

Scott: It's clearly spreading. So it's not just, "Oh, you've come somewhere from the east". It's pretty scary stuff for a lot of employers.

Seamus: Absolutely. We just don't know what's going to happen, but that would be the risk, that if it isn't within the contract in relation to layoff, it's going to create difficulties and problems.

A couple of other practical solutions for people are that, certainly, a lot of the guidance has suggested that you look at some sort of flexible working in relation to circumstances where the employee can't come to work. Maybe if there's a period where they're sequestered, you could look at remote access to continue to work or work from home.

Maybe sometimes people will use holidays and stay out in order to ensure that there's some consistency in relation to payments as well.

But it's developing, and we'll need to see what comes along

Certainly, it is reflective also of the MOT position. You briefly mentioned that as well. I think Legal-Island has some guidance up on their website about that.

Scott: We do.

Seamus: You're looking at employees there that are saying, "I'm not going to drive a lorry that doesn't have MOT because there's no insurance, and if something happens to me, then there's a problem there", or where the employer says, "We can't let you work, and it's not our fault". You know what I mean?

So you are looking at the potential of layoff. It needs to be in the contract or else, alternatively, redundancy might come around. Hopefully, they're short-term problems and there are alternatives there that we can use.

Rolanda: At the risk of offending Seamus, we do actually have other guidance on the website about coronavirus. Lisa Bryson wrote an article on this.

Seamus: An excellent article from Lisa in relation to that. Yes, she does.

Investigative Meetings – Should These be Conducted on An Individual Or Group Basis?

Rolanda: Just our final question, then. Hopefully, we'll get time to address this. We have a situation where two colleagues have raised a grievance against a manager, alleging bullying behaviour. There is a feeling that it's not that serious that it might lead to dismissal, but they find it strange that the investigating officer interviewed both complainants at the same time and they signed a joint statement.

The person who's asking the question says, "I've never come across this before in almost 30 years of management where witnesses are not interviewed separately. Is this okay?"

Seamus: I think the preference is always that when there are statements taken, they are taken separately. There's a bit of a natural justice element to that as well. If they're taken jointly, one person might have influence over the other. It just wouldn't be as straightforward as having separate statements taken.

I can envisage, certainly, where there might be . . . I mean, if this is a grievance that is being taken, look at the LRA Code of Practice in respect of grievances. The potential is that this could lead on, as we said, to disciplinary action.

I don't think now from the circumstances of what the query relates to that they're looking at dismissal, but even at that, you could imagine the employee that has been accused of actions not being happy if there have been joint statements taken and maybe influence of one employee over the other.

I think, preferably, the best way is always to do it as one separate statement. When you have two people in the same room together, you're really only getting a mixed version of events coming from that.

If it was to be tested, I think the risk for the employer would be that the integrity of the investigation might be slightly compromised by that. It depends on the circumstances.

Certainly, I'm aware of circumstances where there are collective grievances taken, but in my experience of that, they would always follow on with individual, separate statements from each person. You wouldn't bring five people into a room and put a statement together from that. I think it's best that it is separated out.

Rolanda: I suppose the reality is if it went anywhere and it went to tribunal, those people are going to be interviewed separately or questioned separately at tribunal as opposed to jointly.

Seamus: Absolutely.

Rolanda: It's important to bear that in mind.

Seamus: Even from the point of view of the risk for the employer, if the grievance isn't dealt with properly either, the aggrieved parties could then raise an issue and say, "We're not happy with the process that has gone on". So it's very important for the employer just to maintain a straightforward approach here.

It may seem that you could save a bit of time doing a joint statement and things like that, but my advice would certainly be that you adhere to the good principles of interviewing separately and having two separate statements.

Parental Bereavement Leave for Employees With Less Than 26 Weeks Service

Scott: Thank you very much to Seamus and indeed Rolanda there. We've had a couple of questions just come in on the chat box. "Just to confirm, if not sufficient service, which is 26 weeks, then assuming once the parental bereavement leave regulations come into Northern Ireland, the employee is still entitled to take up to two weeks unpaid bereavement leave within a 56-week period of the death".

Seamus: Yes. If you don't have the 26 weeks, you still are entitled to the leave. It's just unpaid.

Scott: "What about dependency leave where a staff member keeps taking sporadic days to look after a sick dependent, but these days are in excess of 30 a year? Is there a limit to this?"

Seamus: There's no limit contained within the legislation about that. The aspect is that that's for emergency situations, either if you're a carer or if you have young children, if it's a parent or a sibling, if you have a responsibility. Again, the present position is you're permitted to have time off but no payment in relation to it.

I suppose that you could have discussions with the employee about your concerns in and around the level of absence and whether that's causing a knock-on effect and impact on the business, but you'd be concerned.

Scott: Thank you very much to everybody for listening. Our next webinar is on the 6th of March. Lots of things going on if you want to check out the website on coronavirus and MOTs and events and all kinds of things.

Thank you very much. You'll be able to listen back to the playback later on this afternoon, and you'll get the transcript in a couple of weeks.

There are also thousands of questions on the website if you go to the "Employment Law at 11" on our website in the Hub.

Thanks very much, folks. Bye-bye.