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

Topics covered in this month's webinar include:

• Maternity leave and payment
• Maternity leave and fixed-term contracts
• Ownership of LinkedIn contacts
• Performance issues
• Performance issues and mental health

Don’t forget to visit the ‘Seamus Says – Employment Law Discussion’ section on the employment law hub, which provides answers to over 130 employment-related questions addressed throughout this webinar series.

Log in to watch the recording and read the full transcription.

Transcript

Scott: I’m Scott Alexander. I’m from Legal Island. Welcome to the latest of the employment law webinars, the Ask Seamus webinars that we’ve doing, which is now Ask Seamus and Hannah. We have Hannah McGrath from the employment team joining us today and Seamus McGranaghan from O’Reilly Stewart.

We’re going to be asking questions dealing with maternity payments in the first half, then hopefully we’ll be moving on to some LinkedIn contacts issues, performance matters, and workplace relations and dealing with managers and anything else. If you have a look on your screen, you’ll see a little chat box. So, if there are any questions on this or any other issues, you can send them in.

It’s been quite a week for case law. We’ve seen a number of things come through both on Uber and on the Asda equal pay claims. So, if you questions on those, maybe send them in and we’ll deal with them next month. We’re back, of course, on the 1st of March, which is the first Friday of the next month. But for today, we’ve got Hannah and Seamus. Good morning, both.

Hannah: Good morning.

Seamus: Good morning.

Maternity Leave and Payment

Q: We have an employee who is pregnant. What payments and leave is she entitled to?

Scott: Let’s kick straight off with some questions on maternity leave and payments and such. We’ve got a general one coming in there from a customer. “We have an employee who is pregnant. What is the process going forward and what payments and leave is she entitled to?”

Hannah: Yeah. So, maternity leave—you’re entitled to maternity leave if you’ve got 26 weeks’ continuous employment. The notice period that employees need to give to their employer is 15 weeks before their due date. The leave that they’re entitled to is 52 weeks. It’s assumed that that employee is going to take the full 52 weeks unless they advise you otherwise.

Of that 52 weeks, it’s split up into sections. Your first 26 weeks will be your ordinary maternity leave and the following 26 weeks is classified as the additional maternity leave. In terms of pay during maternity leave, it’s important to look at the contract to see if anything additional is offered in the contract, but if we’re just looking at statutory maternity pay, it’s paid for up to 39 weeks.

The first six weeks is 90% of the employee’s average weekly earnings. For the following 33 weeks, it is either £145.18 or 90% of the employee’s average weekly earnings. It’s whichever is the lower of those two figures.

Now, to qualify for the pay, the employee must earn an average of £116 per week, give the correct notice, which is the 15 weeks before their due date, give proof of their pregnancy – so, a letter from a doctor, for example, and have the 26 continuing weeks’ employment.

Scott: So, listeners there might be a bit confused. I always get it confused most times, because I’m just running down here some of the numbers—6, 11, 15, 26, 33, 39, 52, 90%, £116, £145.18—there’s a number of numbers there. So, if you do want to follow those, there is lots of advice around. You can go to the . . .

Hannah: Government websites.

Scott: The Equality Commission, LRA over here.

Hannah: Plenty of advice is online.

Scott: Lots of stuff on Acas if you’re looking at the GB terms. They marry across. It’s UK-wide rights when it comes to those maternity things. Moving forward to a more specific question in these particular ones, “Can an employer change your job and your duties whilst you’re on maternity leave?”

Hannah: So, we talked about the 26 weeks that you have. If an employee only takes the ordinary maternity leave, so the first 26 weeks of their leave, they’re entitled to return to the job that they left. If, however, the employee takes the additional 26 weeks, they are entitled to return to the job that they left. However, if that job, for some reason, doesn’t exist or it’s not possible for the employer to place the employee back in that position, then they are entitled to return to a job of equal value on the same terms and conditions as they left on.

Scott: Okay. And sometimes what happens is an employer maybe tweaks one or two things. They bring in a temp to cover or they allocate some duties. That’s perfectly okay.

Hannah: Perfectly fine.

Scott: It’s when an employee comes back, they’re entitled to the same terms and conditions. Presumably, if there’s been a pay rise in the meantime, they would get the pay rise.

Hannah: Yes. And I think that is important. Whenever the employee—I think it’s important actually before the employee goes off on leave that the employer meets with the employee and discusses with them what’s going to happen over the maternity leave and establish how much contact that employee wants whilst on maternity leave because you’ll get some employees that want to be advised of everything, hear from the employer every other week.

You’ll get other employees that that’s their time. They want their 52 weeks and don’t want to talk to the employer at all. It’s important, though, that the employer establishes the level of contact that’s wanted, but also within that that they are advising the employee of any promotions that are available that the employee might want to go for and apply for, any changes within the company—for example, maybe new managers have come in.

Also, I think, any social events that maybe the employee wants a night off or wants to go and meet their colleagues for a night, just keep them in touch. So, they’re not coming back feeling like they’ve been alienated, potentially, for the 52 weeks and don’t know what’s happening.

Scott: Seamus, on keeping in touch days, this is about keeping in touch generally. It’s a good thing to do with a female when she’s off, keep them involved in the company. You want them to come back. They’re entitled to come back. But there are also these keeping in touch days, aren’t there? Statutory.

Seamus: So, the keeping in touch days and the KIT days, as sometimes they’re called, are days when the employee can come into work and you can have a maximum during the maternity period for up to 10 of those days. The employee gets paid for those for the days they come in.

It may be—some examples that I’m aware of is that if there’s a specific project that’s going to complete during the maternity leave, the employee might want to come in during one of the days to ensure that everything is in order with it or maybe just to see it through as the final day. There may be specific things that the employer wants to discuss with the employee about work. They can contact them and they can offer to say, “Would you come in and do a KIT day?”

Scott: They would come in sometimes for training, but it’s also, I think—regardless of why you’re off, if you’re off for up to a year, sometimes longer, it must impact on your self-confidence, if you’re like, going back into a situation where everybody else has advanced and you haven’t managed. Just from that point of view, of saying, "Look, things might have changed, let’s do a bit of training, let’s keep in touch." Let’s make sure you don’t feel so left out when they come back. That’s a good thing to do.

Seamus: You know yourself. Even sometimes a Sunday night can be enough to make you anxious to go back into work on a Monday or even if you’re coming back from a period of two weeks’ leave and you have that dread almost of coming in. Even whenever you go in to work and something as changed, something as minor as somebody has moved desks, it can really throw you out on the first day back. So, you can imagine somebody who’s been off for a lengthy period of time. It really does help in terms of re-entering the workplace and keeping in touch. It gives you the confidence and the security that things have not changed massively when you’re away.

Maybe just one point that I would flag up just in terms of the duties—there are circumstances, certainly, during the pregnancy period, but before the employee goes off on maternity leave, where there may be amendments to the duties. I’m talking about maybe for employees that are working with machinery or where there’s a lot of domestic work involved.

Scott: So, this is health and safety and risk assessment that has to be done as well.

Seamus: Yes. That’s happening during the pregnancy period. I suppose it’s just that sometimes when the employee comes back from maternity leave, they’ll maybe make a request to say, “During my period of pregnancy, I didn’t have to do X, Y, and Z of those duties and I’m not so keen to do that when I come back.” I suppose it’s about the employer being firm with that. Certainly, there are risk assessments that need to be done.

If someone, perhaps in a cleaning job where they’re doing quite a lot of manual work, they may require amendments. I remember whenever I was in my first job and doing training in my first job, the lady that was assisting me—it was just in a shop working on the till—she was saying that she couldn’t reach over the till now to assist the customer with bagging their shopping and things like that.”

I remember that going back that far in terms of there were amendments to the duties in that sense. I suppose it’s important that whenever they’re back from their maternity leave period that they’re going back in to do the job that they were employed to do originally. There can be those tweaks as we’ve discussed about.

But in the whole and in the round and even if it is working into the additional maternity leave and the 52 weeks, the standard period should always be that the employee has come back into the role that they were doing unless it’s not reasonable feasible or practical for them to do so.

Scott: Okay. You mentioned the health and safety and the risk assessment. If they can’t do the job, there’s maternity suspension rights on full pay. That doesn’t happen very often. Really, you’re looking at lighter duties or varying them so the employee can remain in employment and continue earning. But if not, it’s a suspension and full pay.

Seamus: Yeah. That’s it. You’re looking at something similar to looking at adjustments and reasonable adjustments during that period. And again, back to the principle of if you really sit down and do the assessment, talk to the employee, maybe you’re looking at some medical evidence that the doctor has written to say they can’t do X, Y, and Z, that you’re doing your best to facilitate and where you can’t facilitate it and where it’s not possible for the employee to conduct their duties, then you’re into that aspect of the suspension.

Q: Are KIT days full-rated for part-time employees?

Scott: Okay. We’ve got a question in there on KIT days. I’m not sure of the answer myself actually. “Are KIT days full-rated for part-time employees?” I think it’s 10 total.

Seamus: My understanding is 10 days total in terms of what your normal salary is.

Scott: So, if you’re working three days a week, it’s still 10 days regardless of whether you’re working five days?

Seamus: Yes.

Scott: Just on those ones, if you do come in for a KIT day, just to make sure, it doesn’t impact on statutory maternity pay.

Seamus: You can get that in the question.

Scott: Even if you’re ever going to get paid, you can still earn additional . . . It used to be if you worked during maternity periods, you would lose your pay and for the KIT days, it’s okay. You can still earn and you don’t lose maternity.

Seamus: Yes, you get that. Yeah. It’s a good position to take that SMP. It’s always going to be there. There’s very little that the employer can do in respect of SMP. We maybe get on to it just in terms of what happens if someone is . . . their employment is terminated during the period and everything else.

Scott: Okay.

Seamus: I’m sure we’ll move on to that.

Q: Can an employee returning from a 12-month maternity leave request a site of work closer to home?

Scott: Another question that’s come in here, Hannah, is on, “Can an employee returning from a 12-month maternity leave request a site of work closer to home on the basis that she has childcare responsibilities and does not want to travel far and perhaps is still breastfeeding?”

Hannah: Yes, she can make the request, but it’s a flexible working request that she’ll be making there in respect of the site change. For childcare responsibilities and not wanting to travel far. That’s made in the usual way. The employee can make one per year, make the request in writing. That could be any form of writing—email or letter, whatever way they want to put it out, detail what their request is, specifically, how they think it could be accommodated.

Then it’s up to the employer to seriously consider that. They do really need to put serious consideration into this because this is someone who’s returning from maternity leave. So, there’s always the risk that there’s going to be a discrimination element. They should only be refusing it if there are reasonable business grounds as to why they can’t facilitate these amendments for the employee. I think if the employer is going to reject this, they should be making sure everything is detailed out and they have a record of it in writing as to why they are rejecting it.

In terms of the breastfeeding, I think that takes a slightly different angle on it. A woman returning to work, whether it be after 26 weeks or after the full 52 weeks, while she doesn't a legal right to breastfeed, there’s a serious concern there if the lawyer turns around and says, “No, we’re not facilitating a time or a place for you to breastfeed.” They are going to be liable for a sex discrimination claim there.

I think we were talking earlier that the Equality Commission has good guidance on this and suggestions that you have a private space for the employee to go in to breastfeed, whether she needs a fridge then to store the milk.

Scott: It can be separate as well. There are hygiene issues there. I think Seamus, you were telling us before when we were chatting about this beforehand—we do actually go through some of these questions. They’re not just completely off the cuff. You actually had a client who had that issue and were trying to figure out would you facilitate the breastfeeding.

Seamus: Yeah. We do our best to prepare. Isn't that what we would say? But yeah, this case was, I think, maybe as far back as ten years ago and I’m sure things have developed and moved on. At the time, I had a client that contacted me that an employee was returning from maternity leave at the end of the ordinary maternity leave period. It was the end of the six months, which might have just been right at the time. The employee had requested facilities to express milk for breastfeeding. The employee was quite forthright about it in terms of their rights.

At that stage, it hadn’t been a query that I’d come across before. I do remember going on and being able to get guidance down from the Equality Commission and having to advise the employer of the rights of the employee.

Scott: They were talking about she can use the toilet and stuff like that.

Seamus: Yeah. At that stage, it was, “Why can’t she go to the toilet? We don’t have anywhere for. . .” The space was tight. “We don’t have anywhere for her to go.” The guidance is very clear that the toilet is not a suitable place for a woman to go in to express for breastfeeding. What they did at the time was eventually, we were able to get—they had a store room where their server was kept. It was in quite a bad way. I think all of the office junk was stored in this room.

What they did was they cleaned it out. They put a bit of carpet down in the room, and they put in one of the more comfortable chairs from the office. The employee wasn’t looking for heaven and earth to be moved in terms of facilitating this. I think just after the initial period, everything settled down very well and the employee was able to get on with things. At the time, we did look at the aspect of requirements for a fridge, but the employee had come back and said, “No. I don’t need a fridge. I’ve got a cooling bag that I use.”

It really was about, again, bringing it back to that simple thing of communication. I remember certainly it was . . . the client at the time was the FD in the business, the Finance Director, who was Neil. He was always very uncomfortable. I said, “It’s only uncomfortable if you make it uncomfortable. Have the conversation. This employee is not looking for anything that is unreasonable here.” As soon as it happened, the issue was over and done with. It was just a matter of routine that was happening.

One of the interesting points in that was the employee had requested that there was a lock put on the door in terms of that she would have privacy to do it. They were able to facilitate—that was the minor works that were done at the time. I do specifically the employee wanted an opportunity in the morning, an opportunity over lunch, and an opportunity then in the afternoon also. This was to facilitate the . . .

Scott: Expression?

Seamus: The employee wanted the child to be breastfed while she was still at work and was able to give then the milk to the babysitter that morning that she produced the following day and everything like that.

So, you could completely understand the necessity for it. It really was—I remember looking at it and saying to the employer, “If you don’t facilitate this, you’re going to have a problem.” Potentially, with an employee that was quite forthright about it, you could end up in a situation with a discrimination claim here on the basis of gender. But frankly, the employer took the advice and everything worked out.

Q: What is the best publication on maternity leave rights?

Scott: Okay. I’m still surprised that after all this time, still so many women get dismissed when they’re pregnant. You see these cases come up in industrial tribunals. You see them in the Republic of Ireland as well. We’ve got a question there about what is the best publication. We’ve mentioned a number, obviously, that you can get here in Northern Ireland on the Equality Commission. There are the government NI websites that you can go to NI direct and all that kind of stuff and the LRA.

One of my favourites is actually Acas. It has lovely little examples of the type of thing you’re talking about, the practical things where if you don’t have space, there may be an employer nearby. So, somebody can end up across the road to express milk and such like. There’s a whole lot of information. If you want the crème de la crème, probably the IDS Brief Handbook, if you want to go there. It will cost you a couple hundred quid, but it covers many things including all the case law.

We’re going to move on to one which brings in some case law. Hannah, who’s still with us, “I’m currently six months’ pregnant. My line manager has made inappropriate past remarkable comments about my attendance at medical appointments and/or going home early when I’ve been feeling unwell. How should I deal with this?”

Q: I’m currently six months’ pregnant. My line manager has made inappropriate comments about medical appointments and going home early. How should I deal with this?

Hannah: Yeah. I think these are the ones that we see in the headlines, more often than not, the shocking comments that get said to women during their pregnancy or whilst on maternity leave. A couple of recent examples have been the Finvola McMullan one and China Garden, where the employee was basically asked how long it would take before she could get rid of her baby and there wasn’t paid maternity leave or sick leave while she was off. She got £18,000 for injury to feelings for that.

The bottom line is that it’s unlawful to discriminate against a pregnant woman or woman that’s on maternity leave. The employer can’t treat that employee less favourably on the grounds that she is pregnant, on a reason relating to her pregnancy, or because of illness related to her pregnancy. I’ve had examples where the woman has suffered mental issues post her pregnancy and the employer essentially wants to get rid of her after because she hasn’t returned to work after maternity leave. The employer can’t do that. The employer has to tread very, very carefully in these circumstances.

Scott: In this one here, Seamus, I think the difficulty is the question is coming from an employee. It’s all very well saying, “Here, I’ve got my rights,” but they’re still going to be discriminated against or lose their job or whatever. So, whilst she’s in employment, what can she do speaking to the employer about, “Hey, this is getting too much.” How might she deal with that?

Seamus: I think you’re talking about the standards or a grievance procedure in relation to dealing with any concerns that you would have. It’s red-flagging it up to the employer and giving the employer an opportunity to resolve this issue on behalf of the employee. Certainly, if I was to receive a call for an employer asking for advice on this, I would be saying you need to deal with this very seriously.

You probably need to conduct an investigation in relation to what this employee—the comments that are being made because they’re potentially very serious litigious comments being made. Certainly, you can understand an employee feeling very uncomfortable and maybe even get into a position where they’re feeling uncomfortable going and asking for their time off in relation to attendance and medical appointments for their pregnancy, which is a legal entitlement that they have.

Certainly, you’d be wanting to address this as early as possible as the employer to nip it in the bud to make sure that ceases because if this is allowed to go on, inevitably either you’re going to end up in a problem of difficulty. I would have thought specifically you’re looking at a grievance procedure or potentially even the bullying and harassment procedure that an employer may have.

Scott: That’s if you go down the far more . . . I suppose the employee . . . The employee could go to the manager or a union rep or confidante or whatever and just say, “Look, I have certain rights.” Maybe you could send them a link to the guidance on that particularly. The employer is on a heighten to nothing if they go down this particular route. Hannah has mentioned some of the case law there. If you look into a beggar’s belief that some employers are still saying, “Hold on. How dare you have the temerity to get pregnant whilst employed here?”

Seamus: I mean, look, the reality is that I still meet people that will say, “I’m dreading going into work today to tell my boss I’m pregnant.” The boss may be even female, you know what I mean? I think there is still this concern from employees that feel that, “I’m going to need to tell someone I’m pregnant. I’m not going to be there to do my job. Am I going to lose my job as a result of this? What problems are going to arise as a result of this?”

The legislation is there to protect females and/or males that are intended to use part of the shared paternity or maternity periods to do that, but the law is behind them in relation to it, but certainly as a first port of call where the employee can deal with it informally and speak to a manager or another manager or to someone, maybe as you say, a confidante to say, “Look, I’m feeling uncomfortable here about these medical appointments that I have to attend and I want it to stop. That’s all I want. I just want it to stop. I don’t want to have to go down a formal route.”

But certainly, any wind of this, the employer should be taking the necessary action.

Maternity Leave and Fixed Term Contracts

Q: An employee is pregnant but on a fixed-term contract. What is the expected way to pay maternity pay?

Scott: Okay. A final question here on maternity and then we’ll move on to another issue. It’s around fixed-term contracts, Hannah. “An employee is pregnant but on a fixed-term contract. Due to prior employment, they have the relevant length of service and I understand they’re entitled to maternity pay but not sure about maternity leave. What is the expected way to pay maternity pay? Is it a lump sum or over the nine months for which they qualify? What if their contract end date is after when they want to commence maternity leave?” So, basically, fixed-term contracts, are they treated any different to permanent contracts?

Hannah: The simple answer, no. The employee has the relevant length of service. So, the 26 weeks’ continuous employment at the 15th week of notice. They’re entitled to their maternity leave. That includes their maternity pay, provided they’ve met the other requirements of how much they earn per a week, etc.

Scott: So, once you qualify for pay, it’s paid and that doesn’t stop?

Hannah: Yes. That’s paid each month in the normal way, regardless of whether that contract—that fixed-term contract will end in the middle of the maternity leave. The only reason that potentially might stop being paid is if that employee found new employment with a new employer, but other than that, that SMP will be paid each month.

Ownership of LinkedIn Contacts

Scott: Okay. So, there may be other questions on maternity matters. If there are, send them in and we’ll deal with them next month on the 1st of March, which is when we’re back. Let’s change tack completely. I don't know who’s going to deal with this one. I’m looking at Seamus. He’s smiling. Let’s ask Seamus this question.

Q: Does my company have the right to request access to my LinkedIn contacts following my resignation?

“I’ve worked for the company for five years in a relatively senior business development role. I recently resigned from the post and plan to work for a competitor in a different geographical location. I presume they will place me on garden leave." Presumably, I’m not surprised. "The company has informed me I must upload all of my 1,800 LinkedIn contacts onto their system over the next few weeks. It is a private social network and there is nothing in my contract that states I am obliged to do so. I also have holidays accrued and anticipate they will deny me these if I do not upload the information. Any advice?”

I suppose we could spin that around. If this were an employer. They’ve got an employee who’s gone away. They’ve got loads of LinkedIn contacts. They want to put them on garden leave. If they don’t do it, they’re going to steal their holidays off them. I can see that one working well. Seamus, any advice on this particular one?

Seamus: I think this is a common occurrence now for employers. Employers will seek to protect their business, essentially. Where you have an employee as a senior manager within your business and you get notice of the fact that they’re leaving and whether or not they’ve disclosed they’re going to work for a competitor or not, I’m not sure, but you can imagine the red flags up for the employer straight away. They are looking at this presumption of being placed on garden leave. The interesting aspect is really around these contacts, these 1,800 contacts they have on LinkedIn.

This really is an interesting question. There are a couple of cases that have been dealt with going back even as far as 2008, but the real crux of this matter will come down to what the contract says and really whether or not the contract provides for restrictive covenants and what it says about your business contacts and the ability for you to be able to contact those contacts.

Scott: This particular question, the person says there’s nothing in the contract. It puts the employer in a very weak position.

Seamus: On the back foot immediately because you put this before a judge and if you’re seeking injunctive relief, the judge will want to see, “Where’s the written contract here? Where’s the ability for me as a judge to enforce this upon the employee?” If there’s nothing in writing, you’re in a serious difficult position as the employer. There’s no doubt about that. Even if you do have something in the contract as well, I think it’s interesting in and around what we have within LinkedIn.

We’re all encouraged now within our business to promote ourselves on the likes of social media and for business, LinkedIn is the really important one. We’re encouraged in work to network and to get out there and make our links and create our web in terms of our business activity. So, we’re very much encouraged in work to do that, but we’re also doing it from the very personal level.

So, it depends. If you go to a Legal Island event, for instance, as a lawyer, you meet 10 HR managers, that’s great in terms of being able to contact and make contact with those individuals. Hopefully, they might want to come back and seek advice off of you. You’ve done that because you’ve attended a work event, maybe work paid for you to attend the event. The organisation may feel very much, well, that’s part of our business. That’s our ownership of that.

Scott: Part of your job as a professional is to go out there and bring in money. You're a peer.

Seamus: Yes. But in addition to that, it’s also a very personal issue for the employee because . . .

Scott: Because you made the contacts.

Seamus: They’re the one making the contacts. There’s a very good argument that the employee could say, “Well, look, the two of us went from the office. I went and made 10 contacts. I put them into LinkedIn and I have now got associations with them. My colleague went and made no contacts whatsoever.”

Scott: Probably busy listening to the speakers at Legal Island is what they were doing, doing their job. That's what they were doing.

Seamus: I would never be saying that lawyers are only going to Legal Island events for contacts. Absolutely not. We are going to learn. You could see the two sides of the argument in relation to this. Ultimately, from a legal perspective, it has to come down to what is in writing here. What does the contract say? I think this is an interesting area. It’s a developing area where we all use our contacts.

Scott: Yeah, because LinkedIn actually says that the contacts are personal to their account holder, don’t they? My LinkedIn contacts are mine, but the fact is the vast majority of people who contact me, they do so because I work for Legal Island.

Seamus: It’s in a business capacity.

Scott: Or because I used to work for the LRA or whatever it happens to be, but it’s to do with my professional life. Now there’s nothing in my contract. I have no restrictive covenants. So, anyone out there that wants to me offer me shed loads of money, I have no restrictions. At the same time, I have a very good relationship, clearly, with my employers. That’s the best thing. If you have nothing in writing, the fact is that we have both grown. I have grown as an individual, as a professional, because I’ve worked for Legal Island.

I’ve brought in lots of people into Legal-Island. Claire here, who’s working the technology today, she works in L&D. She deals with most of the writers in Legal-Island. You build up personal relationships. To try and stop that going forward when it could be because of that personal relationship with somebody, in a professional capacity, if you like, but because we get on, I’ll be able to send work back to Legal Island, have every I had to leave. It’s much better that you can actually work.

Seamus: Absolutely. The other interesting point as well is there’s another argument that your LinkedIn will go and fish contacts out of for instance your emails, your Outlook, and even then emails that you’ve been sending to people, all of a sudden you’ll see they’ll pop on your LinkedIn as a recommended person to connect with. Again, there’s an argument that your business could be saying, "Well, you’re only emailing those people because of work and therefore, that forms part of it."

You do see a lot now in terms of if you’re looking to compromise agreements where it will say in the compromise agreement that the employee will no longer hold themselves out to be associated with the company or the employer. They’ll specifically maybe mention the likes of LinkedIn and other social media websites that are there.

But that is slightly different in terms of you’re not necessarily holding yourself out whenever you’re taking all your contacts with you. The reality is let’s face it, the contacts are going to be within the knowledge of the individual anyway. So, it has to be coming back down to what’s contained within your contract of employment and/or your restrictive covenant agreement, what you can and can’t do post-termination.

As you say, ideally, the best way to deal with that, certainly, would be, again, communication, discussing it. If you were saying, “I’m moving on here, but you know what, in my new position, I’m not going to be able to deal with certain aspects and anything that comes my way. Sure. I’ll send it back to you and we’ll keep the relationship going.” There’s benefit there for both. Unfortunately, it doesn’t work out that way all the time.

I think the key here would have to be for this query to say that if your contract is clear and it doesn’t provide any restrictions in terms of the use, my advice to this person would be your LinkedIn contacts are your LinkedIn contacts. They’re not that of the business, unless it’s specified in their final contract.

Scott: Similarly on the holiday issue, if the employer denies—it’s a simple unlawful deduction in terms of holiday.

Seamus: Bottom line, you’re entitled to any accrued but untaken holidays upon the termination of your employment. If you’re going through a garden leave period, the employer can certainly request that you use your holidays during that period, which will save the employer a few quid. But ultimately, the refusal by the employer to pay those holidays amounts to an unlawful deduction of wages claim and you would have right of recovery, either in the tribunal for that or potentially in the court system as well.

Scott: Okay. Well, restrictive covenants comes up every once in a while. We can look maybe later on if you have questions simply about confidential information and whether you’re allowed to take some of that with you. The short answer is generally no under the Fowler v Faccenda Chicken case. Maybe also look if there are people there who are concerned about fiduciary duties and the more senior directors and all that kind of thing. You were going to say something, Seamus, before we move on?

Seamus: I just want to mention there—we probably haven’t got a chance to go through them at this point, but if anyone is wanting to look at the case law on that, there’s the Hays Specialist Recruitment Holdings Limited and the Ions case of 2008, which is the earlier case. There’s a more recent one in 2013, which is the Whitmore Publications Limited. I’ll just leave it at Whitmore Publications. It’s far too long for me to give you the rest of it. It’s 2013, interesting cases. You can see the approach the court takes and also, the quagmire that it is for the courts as well and how they break it down to say, “Well, what are your contacts and what’s the business contacts. How have the contacts been made?” So, it’s not a straightforward answer, but ultimately, if it’s not in writing, you’re in difficulties.

Scott: I suppose that just reflects that if you look at my Outlook contacts and my LinkedIn contacts, there will be personal and professional contacts and how you separate those types of things out is always going to be difficult. Another issue I suppose to do with performance and how people get on, “I’ve got an employee whose performance improves for a month or two, but inevitably drops back to an unacceptable level.” How do I deal with that?

Performance Issues

Q: I’ve got an employee whose performance improves for a month or two, but inevitably drops back to an unacceptable level. How do I deal with that?

Seamus: That’s a classic situation that arises, where you crack the whip a little bit with an employee. They perform and whenever the stress of it all eases off a little bit, they’re back to their old routine.

Scott: This question came in from a chap called Mourinho and it’s about another guy called Pogba. It’s an old question.

Seamus: Right. yes. If you’ve got a payoff like Mourinho, you’d be happy enough, wouldn’t you? This is really about keeping on top of the employee. It seems to me there is some sort of performance improvement program that’s used or adopted. Maybe it’s something not as formal. The employee clearly has the capability and clearly has the ability to perform in their role because they’re able to do it okay for a month or two.

Scott: It’s an attitude.

Seamus: It is. That really is about getting to the bottom of the issue. What’s the employee’s problem? Is the employee disgruntled about something? Why aren’t they performing as they should be? That’s one way to look at it. My advice in terms of this would be that there doesn’t appear—it’s not apparent there are any kind of disability issues or anything like that arising.

My view would be maybe that you’re setting up something much more formal with the employee and maybe you’re going through a monthly review with them. Whether that takes you to the 12 months—now the argument will be from an HR perspective, “I don’t have the time to spend once a month with every employee because they’re slacking behind. I don’t feel that I should have the responsibility of babysitting them in their roles.” But as you know, the law does require the employer to provide as much support as possible in terms of improvement. I think where you have a pattern here, it’s important to record it that the capability is good for one or two months. The pressure is off. Out of the PIP and all of a sudden standards started to slip again.

I think it’s a bit drawn, the attention employee to say there’s a pattern here and we’re not satisfied with your improvement because it’s not sustained. What we’re going to do instead is we are going to continue on with the PIP for a longer period. But ultimately, if there is slippage in terms of your performance, we may have no alternative but to go down a disciplinary route because we have done all we can.

Scott: Which eventually will lead to dismissal. Because it’s attitudinal, really, it’s about trying to say, “Do you want to be here?”

Seamus: Exactly. Yeah.

Scott: “What can we do to make you perform like you used to? You used to be good here. Something must have happened.” It could be intrinsically the job is rubbish, but then some people can manage to do it. It could be that you’re looking to give them something more challenging. You often find that with those types of things, it’s a very clever employee who gets bored.

Seamus: Yeah.

Scott: They have to get pulled back into line. It may be better about looking—is there a way we can enhance the job in some way or give you training that will enable you to go on and do something more challenging. In a situation where there is high unemployment, you often find employers go along and they get people that are over-qualified for jobs. Then when things at the moment are tight, you maybe end up with things that are a bit more balanced and you get the right people into the right jobs. But in this situation here, you’ve got someone who’s getting bored, basically, I think. Yes.

Seamus: It can be either that or something the employer can pinpoint and the employer can say, “Since that event took place, the standards have slipped and the person hasn’t really been able to get on with their job.” That could be because there’s been a dispute between two employees and the person isn’t happy. Think about moving the employee to do something else then at that point. If you know they have the ability but they’re wasting their time doing what they’re doing, think outside the box in terms of it.

Outside of that, the other issues are in relation to if there’s some sort of issue going on at home or outside the workplace that is having an impact upon them. Again, that’s about communication and talking that through.

Performance Issues and Mental Health

“We have an employee whose role is primarily customer service-oriented that’s been displaying behavioural issues in the workplace along the lines of vocalising their frustrations about customers, and displaying a rude attitude towards coworkers.

This employee has been previously given a formal warning regarding their behaviour, for which a customer complaint was received. This behaviour is impacting on the team with morale and productivity affected. It’s generally known the employee may suffer from a form of mental illness, and takes medication for it. He’s a longstanding employee with 12 years’ service. How should we handle it?”

So, I suppose the background here is similar. You’ve got somebody who can do the job, has difficulties at certain times, and it's made much more complex, Hannah, by the fact that this person has some kind of mental illness and is taking medication. Perhaps not all the time. We don’t know.

Hannah: There seems to be a lack of clarity. Is there definitely a mental illness here? What is the mental illness? Is the mental illness actually what’s affecting the employee from doing the work here or is there something else going on here? They’ve done formal warnings with this employee, but we don’t know if they’ve tried to gauge what’s going on in the background here. I think your first protocol would be to meet with the employee and just have a discussion with them and find out what’s going on, very similar to the question before.

Try and pinpoint what the reasons are. If the reasons are an illness that’s going on here, there is a greater risk here because you’ve got a potential disability discrimination going on if we treat this employee differently than we would any other employee, but I think if that is what’s behind it all, then we need to be looking to get medical evidence here to find out, “Are they in the right role? Is this the right role for them with the condition that they’re going through? Is there anything that we can do to facilitate the role that would make it easier for them?”

If they’re being aggressive, is there’s something else going on? Are customers reacting funny to them or something? What’s going on here to judge it? I think it’s just about detailing out and trying to figure out what is happening and what can be done for the employee to improve the situation for them.

Scott: A lot of it comes down to communication.

Hannah: Yeah, 100%.

Scott: Somebody that’s been there for a long time . . .

Seamus: 12 years.

Scott: . . .they’ve been doing the job for a fair chunk. Presumably, they’ve been good enough to do the job over that period. So, there may be something that’s happened. It may be the medication isn’t working so well anymore. Sometimes you find that when somebody does something wrong, you pose questions like, “What if you were the customer? How would you feel?”

At this stage, it’s probably not a disciplinary issue, although they’ve been down that route before. If you go down the route and it doesn’t work, inevitably if you keep going down that route, it’s going to end up with somebody losing their job, somebody with a mental health issue who presumably could claim for disability discrimination.

Hannah: 12 years’ service, it’s going to be a substantial one, potentially.

Scott: It could well be. Any other comments around this particular one, Seamus?

Seamus: The other thing would be from the disability aspect, maybe giving consideration to medical evidence. If you have, as Hannah said, had those informal discussions with the employee, you maybe ask the employee to attend with the GP and get a report.

If the employee has said, “There is problems here because of X, Y, and Z,” or because the employee can’t identify those problems themselves, which often happens in issues with these sorts of disabilities, you’re maybe looking at occupational health or alternatively, if you could get something from the GP at least to get a diagnosis to know what it is that you’re working for and what adjustments then you can make as a result of that. It’s a good thing to get the medical advice in that respect.

I think if you ignored the element of medical evidence and you proceed with a dismissal, that would be a concern for me. A tribunal judge would be asking, “Why haven’t you investigated that? You have an employee here with 12 years’ service. You don’t get to 12 years’ service if you’re a disaster employee. You had to have been making the mark up to that point.” Again, I’d be looking at some element in respect of trying to identify what is going on here.

Q: If a person has mental health issues that are impacting on work and there is no option to redeploy, can you dismiss?

Scott: We have one last question and then we’re going to have to stop. “If the person has mental health issues that are impacting on work and there is no option to redeploy, can you dismiss?” Eventually, the answer is yes, isn’t it?

Seamus: Potentially, yes. But I think you have to go through the process, first of all. I think if you did an immediate dismissal on the basis of an event happening one day and enough was enough, you might end up with problems here, but ultimately, that’s where you’d be heading. You’d want to make sure that your paper trail is very good.

Scott: Okay. We’re going to leave it there. However, we’ve had a number of questions in. If you want to send those questions, send them into me, scott@legal-island.com. We can deal with them next month. We have a couple of other questions that are sitting there about workplace relations, somebody refusing to work for a manager. We also had another question and it's quite interesting about time limits for making claims to tribunal and the discretion that tribunals have.

Whatever your questions are, send them in, scott@legal-island.com. We can deal with them the next time. Thank you very much to Hannah McGrath and Seamus McGranaghan from O’Reilly Stewart. We’ll see you on the 1st of March, if not before. Take care. Bye, bye.