'Employment Law at 11' is a series of 45-minute webinars from Legal-Island in conjunction with O'Reilly Stewart Solicitors.

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

This month, the topics covered include:

• Redundancy and Workplace Closure;
• Redundancy, Consultation and Sick Leave
• Redeployment and Reasonable Alternatives
• Interpersonal Disputes and Employees Keeping Records
• Working time and Accessing Emails Outside of Working Hours
• Suspension and Holiday Pay
• Social Media Posts as Evidence of Employee Behaviour

Log in to watch the recording or read the transcript below.

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Transcript

Scott: Good morning, everybody. Welcome to the latest of the webinars. I'm Scott Alexander, I'm from Legal-Island, and I'm with Seamus McGranaghan from O'Reilly Stewart Solicitors. If you haven't joined us before, the concept's fairly simple. I ask a series of questions to Seamus that have been sent in by our audience, and during that process, we also give you a chance to send in questions live through the chat box. You see a little chat box on your screen there. If you want to send them to us, then you can do that related to the questions that we're going to raise.

If you can't hang around for the whole broadcast, which will last until 11:45, we will put the whole webinar up in about an hour, an hour and a half on the Legal-Island website, if you go to the resources section. You'll also find that all the previous webinars are there. We've also split up the questions. So we transcribe the conversations and we add in some references to case law and such like, so you can check them up, but we break them up and we tag them so that you can check up. So if we're going to deal with the first question, which is about redundancies and layoffs, you can search all the questions on redundancies and layoffs, and so on.

Just a little reminder, in case you don't realise or you haven't booked, there are annual reviews of employment law in November. The early bird closes next Friday. So if you want to book in at the discount price, then get in before next Friday. I think there are four places left at the Titanic, and there's a few places left at the Crowne Plaza. But if you want to get in at the bargain price, get in before next Friday.

Seamus, morning.

Seamus: Morning, Scott. How are you doing?

Scott: I'm doing absolutely splendidly. We have some questions have come in, and there are a number of topical ones that have come in. The first one is about Primark and redundancies and what happens to workers. So, we've all heard about the Primark fire, and they seem to have been doing things very well, engaging with the trade union and the workforce. It appears, anyway, if we believe the press, that they've agreed to pay its workers for a second week following the blaze that gutted that Belfast store. Staff are going to be paid their rostered hours and so on, but there are a number of issues that are then thrown up. And we'll come to other employers at the moment, but just, in general, when it comes to Primark, what are the rights of employees in situations like this where the building has gone, there's been some great trauma?

Redundancy &Workplace Closure

What are the rights of employees in situations like the current situation of the Primark staff, where the organisation is no longer trading due to a major incident that was outside of their control?

Seamus: Yeah. I mean, this is bit of a tragic story, as we all know, and it's complicated by the fact that approximations through media and stuff like that, I think that we're looking at around 400 employees in total, that are employed just within that one building in Primark. So, obviously, a situation where the building is no longer there, and the business isn't trading, but we have employees who have rights, and we have an employer that has obligations here as well. So it is certainly a minefield for both parties. I'm sure it creates a lot of anxiety for the employees in terms of what's going to happen to them, and they're worried about, you know, where's the money going to come from in terms of their bills. Are they going to be paid? How long, really, can Primark sustain a situation like that?

And we know that there's been things going on in the background in terms of Primark looking for alternative options, and things like that, which we'll maybe touch on a bit later on. But initially, the bottom line is that the employees really need to probably go back and look at their contract and find out what their contract is saying. Often within contracts and I'll have to say not all contracts will have this, but a lot of contracts will have a right for the employer to lay off for short time working. And if there is a clause within the contract, it does facilitate the employer to provide a period of layoff.

So, Primark, I think, are doing the right and the decent thing so far as we know. The fire two weeks ago, they put out that they were going to retain the salaries of the employees for that week, and now we're into the second week, and we understand that they're covering that.

But one does wonder what is the longevity to all of this. They have a business that isn't making any money, and they are a big operation. You know, they're a big multinational organization. They have plenty of resources when it comes to that, but, at the same time, you wonder where the line is potentially going to be drawn.

What the employee really has to do is go back and look at the contract. If there isn't the layoff facility or a period within the contract, the employee is entitled to their contractual hours, and the employee could take comfort in the fact that there is the ability for or the right for them to receive those hours, but the risk would be then that the employer would be looking at some sort of redundancy on the basis that the business is no longer there.

So, certainly, it's an anxious time for any employee, but, hopefully, both sides are working I know the trade unions are involved and things like that. So we have a situation, essentially, where if there's a right to layoff, that the employer here could do that. The basics of in and around how that works is that the employer has a right to lay off for four weeks. And after those four weeks, the employee can request a redundancy, or, alternatively, the other situation is where there has been a layoff for 6 weeks in a period of 13 weeks, you know, sort of, looking at an average of it. So there's those two aspects.

Scott: Well, this one here, the employees won't be brought back in.

Seamus: No.

Scott: And then put out and brought back in. And put out like you would get in inclement weather or something like that. And of course, it's a situation where the problem is outside the control of the employer like this fire, so there has to be a big trauma. It can be that the employer decides, "You know what? I don't need that many workers this month I'm going to lay them off and then bring them back in," because they control that. And this one here, there's been a big trauma basically, there's been a big fire, and there's nothing the employer can do about it. So if they've got the right to lay off, they pay them a guaranteed payment. It's less than 30 quid.

Seamus: Yes. And the guaranteed payment is for five days.

Scott: So they get five days so £150, say, that they would get. And after that, there's no payments. You would have to sign on to get some kind of benefits if you're an employee.

Seamus: That would be the option for the employee. So it's not a great situation for the employee at all, and it's a risk for the employer that if their hand is forced with a redundancy, that they're losing their skilled staff and potentially very good members of staff.

Scott: Yeah. And if an employee wants a redundancy, they end up having to resign, so they'll lose their notice pay as well.

Seamus: That's the risk in it as well. You know, so, really, it's a no-win situation, it appears, from all sides.

Scott: And could they be forcibly redeployed? So Primark is looking at other premises, hopefully somewhere in the city centre. So, you know, it's not going to be a redundancy situation if they can find you a job somewhere in the High Street or around city hall, or something like that. But if it's the other side of the town, that could cause some problems. But there is probably no flexibility clause in the contract. I don't know. There may be. But assuming there isn't, you know, could they be forced to be redeployed?

Seamus: Well, the aspect of it, from what we know, is that there has been media reports that there are available buildings within the city centre that Primark are looking at, and possibly taking an available building. I mean, with all the will in the world it's going to take time for that to happen. I mean, you would imagine that there would have to be at least arrangement put in place for a building. There would have to be a fit-out probably, you know, the statutory bodies in terms of building control and possibly planning permissions and things like that. So it's hard to see an immediate redeployment situation. And I suppose that if there are other Primark stores out there at the minute, there could be some redeployment in terms of some of the employees. But we are talking about a total of 400, and it's hard to imagine that there would be the ability to absorb that, you know, in other places. But, you know, when it comes down to redeployment, I suppose the issue is always that, you know, there's past case law there that tells us that you can't forcibly redeploy the employee, that there could be issues in terms of if the employee has transport. What are the hours going to be? Have they flexibility arrangements already in place? And, you know, will it ultimately suit the employee? And as you say, the employee would have to resign in their position and look to try and claim some sort of constructive dismissal at that point, if it was being forced on them.

And, I mean, I would imagine that there would be a lot of goodwill with the employees and the employer, but it just might get down to the point where someone and, particularly, like, you know, if you're someone that's relying on public transport, and it's just not feasible for them to get to the new redeployed store, I would have thought if it's located within the city centre, that, you know, Belfast hasn't got a massive city centre it is within walking distance, you would have thought that's feasible. But maybe outside of that, it could create problems. Certainly, if it was in another city, a larger city than Belfast, you could certainly, you know, see that might not suit, and it might be impossible for an employee to really be redeployed.

Redundancy, consultation and sick leave

We have advised one employee that they are at risk of redundancy and they have now gone off on sick leave. Can we continue with the consultation process?

Scott: Okay. Well, come to the other businesses that are cut off because of the exclusion, but I've got a question coming here. It says, "We have just told somebody that they are at risk of redundancy. They're the only person at risk. They have now gone off sick. What can we do? Can we keep going with the consultation process? And if so, how can we if they refuse to meet?

Seamus: Well, in a redundancy situation, you know, I suppose that the issue is that they've only been placed at risk of redundancy at the minute. Certainly, there hasn't been a notification to the employee that they've been redundant, this can be a common occurrence, I find, in terms of an employee's advised, and their reaction is that they go off on sick. And the first approach is really to look at what the medical evidence is telling us. You know, is there an issue outside you know, the natural kind of thought process might be that the employee is just going off on sick, doesn't want to be in work anymore, and maybe was put in a sick line for, you know, anxiety, or depression, or something along those lines.

So we need to look and see what the actual reason. It could be that they have a flu, and they're going to be out of work for two weeks, and the more likelihood is that they have as a result of receiving the notification, decided to go off on sick leave. And so, we need to look at what the reason for the absence is, and really make a consideration as to whether or not they have given what the reason for their sickness is, whether it's still feasible or reasonable for them to attend meetings to discuss the redundancy.

Scott: But there's nothing in law that would stop an employer making a sick employee redundant? If that post is gone, the post is gone. So you have to find an alternative way to communicate with them.

Seamus: That's it. I mean, I think the second thing would be maybe to look at getting an occupational health report, or getting the occupational health doctor to give you some information about what would be feasible for the employee in terms of meetings. And it may be that if a meeting isn't possible, that you are deciding to communicate via written communication, only maybe emails, maybe the employee making their representations in writing rather than attending a meeting.

But ultimately, whether it's a redundancy situation that arises, it needs to be dealt with within the company, and certainly you wouldn't be wanting, by any stretch of the imagination, to be making an employee redundant, without going through a proper process with them. But where you're unable to do that, you're looking at the best alternative arrangements in order to try and facilitate a fair process. You must always remember in any redundancy that you are obliged still to follow the statutory dismissal procedure, and the 1-2-3 procedure. But if you take a look at the Labour Relations Agency practice their code of practice, it does give alternatives as to how the employer can deal with the process where the employee is also on sick leave.

Redeployment and reasonable alternatives

The employer has two sites but there's a big 15-miles difference. Would this be considered to be reasonable alternative employment in a redeployment situation?

Scott: Okay. We've found another question just on this, and I suppose it comes down to, I mean, all those businesses around the exclusion zone at the moment. They can't get into work. It's the same trauma, if you like, which has caused them problems. They may not have the same resources that Primark have and whatever. They may not be unionized. They may not be the same consultation process, but they still have to speak to employees, and it comes down to, do they have contracts that have the right to lay off and so on? And how long it goes on but here's another question here about redeployment. The employer has two sites and is considering closing one of those sites and wants to relocate all the employees to the other site, but there's a big 15-miles difference. Would this be considered to be reasonable alternative employment? A couple of the employees may not have transport, but there are bus routes. And again, it comes down though essentially in this that it may be reasonable, it may not be reasonable, but it depends on the subjective situation and circumstances of each employee. So if one employee is actually closer to the workplace, that may be perfectly reasonable. If the other one is, actually, instead of having a 10-mile commute, has a 25-mile commute, it may not be reasonable if their personal circumstances, or family circumstances, or whatever, mean that they can't actually do the job.

Seamus: Yes. And there could be all sorts of issues in terms of just things that are going on in their personal lives. Maybe they have children that they leave off to school, and the alternative of getting a bus to A, to B, to C to get into work, that that situation just isn't going to work out. So, I mean, it is subjective and it is specific to each employee. Again, I suppose, you are going back to your contract and you're looking to see whether or not you have maybe a mobility clause or some right in terms of movement of the employees as well, but that might not always help you out, you know. And if you end up at a tribunal, the tribunal is going to look to see whether or not, you know, for that specific employee, whether it was reasonable or not.

Scott: Or whether you've ever activated that mobility clause. I mean, if you've got employees that work in both sites, and you close one of the sites, then it's probably not even a redundancy because the place of work could be either, but if you've got somebody who has never left Site 1, and it's close to their home and they walk in, then you offer them a job somewhere else, then you really have to look at what else might make that reasonable?

Seamus: Yes.

Scott: And if it's not reasonable, you have to pay them off and give them redundancy money. You know, there's very little opportunity for unfair dismissal if somebody turns down an alternative job and you've closed the plant, you know.

Seamus: Yes. I mean, where there's alternatives there to the employee and they don't take those up, it's harder for the employee to justify any kind of unfairness with it. But just maybe come back to the other businesses within the exclusion zone in around Primark, I suppose the big distinction for those businesses may be that they just simply will not have the same resources as what Primark does. So, I think, you know, there's a Tesco right next door that I think is excluded off, Tesco, and has a lot of resources, a lot of stores, they may be able to facilitate some redeployment. And again, looking at that coming down to the suitability for each of the employees, I know that there's a smaller Tesco just within Royal Avenue itself, but you wouldn't imagine that it would be able to absorb that many, you know, other employees.

But the likes of, you know, there's a McDonald's that's located just facing it, and then there's a number, I think, of small, sort of, family-run-operated businesses, and the reality for them is that their business is closed, they're not making any money, and there's no work for the employees where the business is closed, and it really does leave a difficult situation for a frustrated employer who wants to run and operate their business, and who ultimately might have to go down a redundancy route with its employees, and lose valuable, skilled employees. And whenever they go to open up again, having to take new employees on, unless those employees come back to work for them.

Scott: That's if they do open up again. I mean, they're going to be closed if this building stands in the exclusion zone. So they're going to be closed 'till after which is probably that many of them make the most profits that keep them going for the rest of the year.

Seamus: Absolutely, yeah. So, you know, really for those smaller businesses, and they're not going to have the resources the same as Primark in order to keep paying salaries, specifically if it's their only business and it's closed, and it's not making any money, and it looks to me that they're going to have to go down a redundancy route in terms of it.

Interpersonal disputes and employees keeping records

We have got two employees who don’t get on and one employee has been keeping a diary for nine months. What can we do about this?

Scott: Okay. We'll move on now to another subject. Coming up, coming up exciting stuff we're going to be looking at, is working on the commute, working time, and, therefore, might attract payments and such like? So we'll look at that in a minute, but we had quite a long question here that came in to me by email this week. "We've got two employees, both quite senior, a male and a female. The male is the more senior manager, and they don't get on. The style is quite abrupt, and the female employee raised a complaint previously about this manager, and it was upheld. And he was disciplined. He's tried to work on interpersonal skills."

This was a classic case of where somebody is promoted because they're good at their job, but they really aren't skilled managers, but their new job is to manage and they are not so good. They've had respectful workforce training, they've done various things, and so on, but what's come to light now is that the female employee has been keeping a diary for nine months and is now complained about her boss. And they're saying it's unacceptable the way that it has been going. So a toxic situation at work. I've come across it quite a few times where people keep those records, and the employer is saying, "Look, can we do anything? Can we even discipline this employee for keeping records? We are concerned that they're almost spying on their manager and keeping all those records." So what can they do in this situation, Seamus?

Seamus: Well, my understanding of the question is that the employer has received a notebook from the female member of staff. They've gone through it, and they're not seeing anything in there that would really entitle them to raise disciplinary matters with the male employee. So, you're, sort of, in a difficult situation where you have a couple of potential scenarios arise. One with the female employee wants action taken, she's disgruntled, she's unhappy, and she's presenting her problem to the employer and saying, "I've nine months of records here of difficulties, and I want something done about it," and then you have the option of going to the male employee and telling the male employee that someone has been keeping a record of him for nine months that he hasn't known about, and that they've looked at, and they don't consider that there's anything, sort of, meritorious in terms of disciplinary action. And that male employee is going to be very frustrated and very annoyed and potentially is going to be saying that he'd been harassed in work on the basis that this female employee's been keeping the diary.

So it's a really difficult situation and a strange one for a company to find itself in, and certainly there has been a lot of work that has been done with these two employees. There has been a prior disciplinary. You hope the lessons have been learned from it, and certainly it appears that the male employee hasn't crossed the line. They've both had this respectful workplace training, so the employer has done quite a bit in terms of trying to help and assist the employees. But slightly concerned that, nine months down the line, that the female employee's coming at that point. And I'm not sure if there's being reviews with both employees during the nine months, and that they both have said everything has been fine, or it hasn't been, but I hope it's not a situation where it's just the employer said right, "We've done the respectful training and, therefore, we're done. We don't need anything further."

But I would have concerns, I think, in this scenario about the employer taking action either way. I think the employer's going to you know, it's going to be hurt one way or the other by either it's the male employee or alternatively it's the female employee and potential constructive dismissal from either employee. And I would have felt the best way, in order to try to deal with this, is to look at mediation, and maybe bring it in the Labour Relations Agency to assist in that respect. You know, I've done that in the past. We've talked about that in the past, and it's something that can work very successfully. On the other hand, it can also not work. But I think that to challenge the female employee in terms of the fact that she's had a diary of nine months is going to cause the employer as much problem as it is for them to go to the male employee and make that disclosure as well.

Scott: The good thing about mediation is the two parties here there may be other parties or maybe other employees who come forward and are having problems, but the key thing about mediation is the parties come up with the solutions. Now, they've tried something. This guy's working on his interpersonal skills. It may mean that he needs more training, or some coaching, or maybe even the female employee does, too, but it's really up to them to try and come up with some ideas. And if there are resource implications, they go back to their employer and say, "Look, we think the male employee needs some additional training. Maybe we can do something there." If they don't resolve it, you've got two managers that aren't speaking effectively, and that's not a sustainable situation. If they can't sort it out, something's going to happen. One of them is going to go, at least one of them.

Seamus: Well, that's it. And I mean, I suppose it's we know that in Northern Ireland we don't have our right, any rights for protected discussions where they do in England. And just for the listeners I'm sure that they're aware, but that's where the employer in England can approach the employee and say, "We're having difficulties. Things are not working out. Can we talk about the potential of you exiting with some sort of package available to you?"

And the risk is here that if you approach an employee in that respect that the employee says, "Well, you know, you've made a decision to terminate my employment, and this is constructive dismissal, and I'm out of here, and here's a claim after that." And I've brought, and I've also defended those claims, and they're difficult, and the tribunal really just want to get down to hearing the evidence about it. But it may be that through a mediator rather than the employer taking that step, that the mediator can ultimately say, like, "You know, if this isn't the situation that's going to be resolved, what do you want? What can the company do here? And because there's not grounds to dismiss your colleague, what is it that you want here?" And really put it on the table for both employees.

But it is a difficult situation. It's one that does create problems. But for me, certainly through any mediation, yes, it's down to the two employees, and, in addition to that, any mediators that I've worked with in the past always say that there has to be involvement from the company in terms of it as well, and, you know, the employees take the ownership, but the employer has to be there to provide the resources and to, you know, give as much assistance as they can.

Working time and accessing emails outside of working hours

Our employees regularly access emails through their personal devices from home outside of their normal working hours.

Scott: Okay. If you've just tuned in, you're listening to Scott Alexander from Legal-Island, and I'm interviewing Seamus McGranaghan from O'Reilly Stewart. We've dealt with redundancies and layoffs and all those kinds of issues in relation to the Primark situation and the big blaze, and the surrounding area, and the exclusion zone, and so on, and we're also there just been looking at interpersonal disputes.

We're moving on to another area now, Seamus, which is very topical. In fact, it's been all over the BBC, and LinkedIn, and CIPD at the moment, and it's to do with working time. Now, the question here states, "Our employees regularly access emails through their personal devices from home outside of their normal working hours. I understand there is a recent Irish decision, it's a Labour Court decision of Kepak against Grainne O'Hara, and it's around working time and emails outside of office hours.

Now, in that case, my understanding, Seamus, is that the employee was awarded €7,500 because the employer didn't keep records, and it was deemed that she had, by answering emails and dealing with emails in the evening, been working outside her working hours. So the first question here is, if an employee works outside contractual working hours, for example, on the daily commute, evening or weekends, answering emails, might this constitute working time under the working time regulations or the directive?

Seamus: I think, just what we can take from the Kepak case, and certainly it's an Irish decision, but what we can take from it is that, yes, it's the simple answer to that. This was a case around an employee that had complained that the volume of the work that she was expected to undertake and claimed that she was having to record all her activities and engagement with her customers, that that was in excess of the 48-hour working statutory minimum, sorry, maximum. That's me as a bad employer there. But yes, the maximum there. And what she'd done was she had actually provided all the emails that she was receiving and that she was responding to in the evenings.

Scott: And they showed that she was working outside working hours.

Seamus: Yes. And I suppose the important point of that case was that she had the evidence, she was able to provide it, and the employer was at a bit of a loose end and embarrassed by the fact that it was not up to speed in terms of the work that the employee was carrying out, and its records of that work itself. And the court had essentially found that the respondent hadn't kept records of the claimant's working time as required under the act.

Now, there is a whole set of different regulations in the South and they're open to inspections in terms of an inspector coming in and asking to see records of working time, making sure that people are getting their adequate breaks and things like that. So, certainly, there's more of an onus in the south for employers to do that, but they were punished on the fact that they hadn't kept those records, they weren't aware what the hours were.

And I suppose, like, what we have to take from that case is that if we are working on emails outside of the office, whether it is a quick two-minute email in the evening or it's something more serious that we're doing, lots of us have remote access into our system. Most people . . . majority of people might have their emails on their phone. Could be very tempting to do the work, but I suppose where you have a situation where an employee feels that the work is excessive, and they are keeping a record of it and it's not hard to keep a record of it, because the email, it's tangible, you can print it out, you can show it, that the risk is that, yes, you are moving on past the statutory limit.

It's also worthwhile looking at the contract, because a lot of contracts for senior managers and things like that, will say that you're just simply required to work the hours that it takes you to complete the role, or alternatively, it'll say that you're paid for so many hours, and the work you do after that, that you're not paid for. And a lot of us in jobs, as well, don't raise a complaint and accept the fact that there's work to do in the evenings.

Scott: Well, sometimes it's in your own benefit. So we were chatting earlier, when you do some stuff in the evening, as do I, or if I go on holiday, I'll clear out all the rubbish emails, none of the ones from customers, by the way. I give all the ones I don't need, and if something needs action straight away, I might pass it on to a colleague. And that means that when I come back from holiday, I know that I don't have thousands of emails sitting on there.

Again, it just makes my holiday better than if I spend half an hour a day clearing out my mailbox, you know. I don't claim that as working, and I'm not going to take a claim over it, but you know, in the Kepak case what happened, was that she was saying that she couldn't get through it. They said she should be able to get through in the normal working hours. So implicit in that is that if they think she's being inefficient, and they could be fined, as they were. There was award of €7,500, they should have been taking action against this employee because she's not managing to get through the work efficiently.

Seamus: Yeah. I mean, that's, I suppose, well, it could be the positive and the negative out of the case, I suppose, but, you know, it's the risk that you have an employee who's very diligent, and takes their time going through the work, but gets it spot-on, gets it right, and someone that is efficient makes the odd mistake, but still gets the job done and does it well. So, you know, there is, kind of, the balance that's needed in relation to that, but, ultimately, what the company here, Kepak, were saying about the employee, Grainne O'Hara, was that, you know, she wasn't efficient, she wasn't getting the job done, she had been trained, she should have been able to get the work that was required done within her working hours.

And we all know those employees that can manage that, could do it very well, and there's others of us that are distracted by the general office going-ons, and people calling at the door, and the list that you set out that morning to get done, you just don't get it done because there may be something that's happened during the day that . . .

Scott: It's more interesting.

Seamus: Yes. Or you get a call from a client that something else needs urgently done. So, I mean, you do need to be careful, and you don't want to get in a situation, I don't think, with an employee where you are badgering them in terms of their productivity. And we know that in certain types of jobs that you can look at all sorts of graphs and charts in terms of how efficient and productive the employees are, but, ultimately, I think if you're going to come and say, you know, "She's slow at the work. She wasn't getting through the work," you have to have the evidence to back that up.

And second of all, there should have been a process then in order to either give her training to improve on that, or disciplining her for not doing the work and maybe I don't know, sitting on the internet for half the day instead. They hadn't done that. They'd no evidence of it, and the court penalized them accordingly.

Scott: Okay. So, should employers actively monitor, even within the Northern Ireland or the UK in general?

Seamus: I mean, I think the lesson from the Kepak case there is that, yes, I mean, it appears that employers should be on top of what hours the employees are working. And even from just a standard point of view of being a caring and from a welfare element for employers, you know, you want to be on top of what hours the employee is putting in. If you're seeing an employee coming in in the mornings, and they're tired, they're looking burned out, you know, you need to know whether that is because they're partying in the nights, or, alternatively, is it because they have too much in their plate in terms of work?

Again, it's a balance because there could be other personal issues that are going on. They could have young children that are keeping them up at night, but an employer should be aware of workloads and if is mismanagement where you have one employee that has a heavy workload, and an employee that's doing the same job, but maybe has 50% of that workload, that's for the employer to manage. And you would be thinking along the lines of if there were health implications arose, or health and safety concerns that arose in respect to the employee, that you could end up with a very dangerous personal injury claim or something along those lines.

Scott: Yeah. I mean, there's some famous cases, and that happened in Sutherland, and so on, where the employer puts in place some kind of protective plan. They say, "Okay, your workload's too much. We know you can't get through. We'll give you some assistance," whatever that happens to be. The big danger, really, is that the employer doesn't follow through on whatever that action plan is.

Seamus: Exactly. No. That's happening in Sutherland case where there was undertakings by the employer to assist the employee, and there was failings on it, and it was almost a double slap in the face, and you're penalised accordingly for that. So, absolutely, the employer should be aware of the workloads, even from a management point of view, knowing what the employees are doing, because there could also be incentives and rewards for those employees, as well, that maybe are, you know, taking on the additional work, happy to do it, and it's aiding and helping the business, but you just don't want to get to a tipping point where you're putting an employee's health and safety at risk.

But you know, there's potentially measures that the employer can do in order to assist the employee in those circumstances where maybe they have a genuinely hard-working employee, they have concerns about the amount of work that they're doing, and they maybe want to look at, you know, all those sorts of softer skills and softer things that they can bring into an office environment, to maybe help the employees, because if it is a stressful place of work, you know, you're going to end up with a lot of employees out on sick leave and things like that.

Scott: So, it's about trying to figure out in your own workplace what kind of works. There are lessons from others now. It's about individuals, but presumably in the Kepak case, there were other employees who were managing, they were saying, to get through all the work. Well, there must be lessons, how do you manage it? And Miss O'Hara did not manage it in that circumstance.

So, how do some people cope? There may be coping mechanisms. There may be assistance or maybe mindfulness training. There may be any number of things, flexible working, whatever that happens to be, get a buddy system, but a lot of it really comes down just to good management, one-to-one meetings with your employees so you can check whether they're okay every week, or every month, or whatever that is, and you don't let the build-up happen. Building up relationships between managers and employees is probably the best way forward, really.

Seamus: Yeah, because, ultimately, where that's going to go to is a breakdown in the working relationship, and it's either going to . . . the person's going to go out on sick or their motivation is going to fall through the floor because they've just had enough. So it is interesting. You do see when the city centre here at lunchtime, people carrying yoga mats and, you know, doing different things that their employers have facilitated in their offices for them to help them unwind and de-stress and things like that. And I think that the evidence of all of that suggests that it does assist in productivity and in decreasing stress.

Suspension and Holiday Pay

Are employees entitled to paid annual leave that was booked while suspended from work?

Scott: Probably helps with some retention of staff, as well, you would imagine. Anyway another thing came in, it was an employee wrote to us on the website. So you can still come in through the chat box, or you can email me or Claire in the L&D department, or indeed you can go on the website and you can leave a message there. And this one came through, and it says, "I have been suspended. Do I still get paid my annual leave? I was suspended for three months. The investigation went no further. I had five nights annual leave, booked during the suspension I did not go away as I was no fit mind to do so. My manager says I am not entitled to reclaim these nights. Can you please advise?"

Seamus: Well, just in relation to the first aspect of the question, which was, "If I'm suspended, do I still get paid my annual leave?" Suspension, just to be clear about it, you know, it's not a penalisation in any way. It's usually on a precautionary basis, and usually to facilitate the investigation or if the continued presence of the employee would put the business at risk. So, on suspension, the employee retains all of their normal rights, so they're entitled to full pay, and they would continue to accrue their annual leave.

It's an interesting question that if you have annual leave booked during a period of suspension, what happens then? And I think that this is really what this question in the second part of it is we have this aspect where was five-days annual leave booked, and the employee, because of the suspension, didn't feel like they were in a fit state to take their annual leave. And then they came back to work and the employer says, "Well, no, you've missed that now."

So, there is definitely a difficulty in that scenario. Where an employee has booked leave, they're entitled to take the leave if it's been approved, and where there's a suspension in place, you'd be expecting that. This is an unusual aspect where there's been a suspension of three months, it is very lengthy suspension.

But, saying that, you would expect that the annual leave would be flagged up by HR, or it would be on the system, and that there would be a conversation with the employee in around that. So, you know, if there was a suspension in place, the employee had booked annual leave, that you'd be saying, "You booked the leave. You're entitled to it, and your suspension will be lifted for those five days, and it will be reinstated when you come back," because remember during that period of suspension, the letter to the employee suspending them will normally say, "You remain an employee. We're entitled to contact you through normal working hours."

Scott: And you have to come in at short notice, or whatever, because you're still working for us." So, that wouldn't have happened, or there's probably a reasonable shout here for the employee. The difficulty is they haven't lost any money, they didn't take their leave, and really, in law, presumably, there isn't a case for action for an unlawful deduction from wages until they go to take the next bit of leave and they don't get paid.

So, if, at the end of the year, they're shy for five days, they may well have a claim saying, "Hold on a second. I was not able to take my leave during that period, not just because I was sick." Then you could turn around and say, "Well, but they weren't really sick."

“Where was you sick line and they were suspended, but they're saying they had no fit state of mind to take the holiday." I doubt there were sick lines going on in the next period, and, therefore, they were just suspended and taking their wages during that period. Now is a stressful thing, and no action was taken against this employee, and it is stressful. But if they haven't put in a sick line, and they haven't taken their holidays, but they could have taken their holidays, I don't know where that claim is going to go, but there's nothing much can happen 'till the end of the year.

Seamus: Yeah. It's the fly on the ointment there whenever I looked at this question really of, they said there were in no state of mind to take the leave. And I understand that, and I think that's probably fair enough. But strictly speaking, if you're going by the book, the employee should have a sick line in because they knew that they have their sick leave coming up and they have put a sick line in for the five days.

So, it's a tricky situation here in terms of this one, but I think the bottom line is, is the employee going to bring a claim for unlawful deduction of wages over five days. And you know, some might, but I would have thought it's unusual, and, obviously, for the employee to claim breach of contract, they'd have to resign from their employment first of all, and then claim, and probably constructive dismissal and the breach of contract for the five days, which would seem to be disproportionate.

Social media posts as evidence of employees behaviour

Can employers rely on evidence obtained from social media to verify an employee's dishonest behaviour?

Scott: It would be a difficult claim to sustain, I would think. Okay, we take one last area here, and all the questions coming in the chat box. We've a couple of minutes left just before we do. Social media. "Can employers rely on evidence obtained from social media to verify an employee's dishonest behaviour?" So I don't know what the dishonest behaviour happens to be here, but something spotted on Facebook with contraband, or maybe their dishonesty is just that they say they were sick and they're not, they're skydiving, or whatever.

Seamus: Yeah. Well, I think, where the evidence available, you know, I think that it's available, and it can be used. I think that the employer needs to be careful about how they have obtained that evidence. And you know, the employee might automatically say, "Well, look, this is a breach of my privacy. This is my Facebook account. How is that being accessed?" But say, for instance they had a friend in work - not a very good friend of theirs, if they told on them, but, say they have a friend in work that has brought this to the attention of management and has provided them with the evidence, I think the employer is absolutely entitled to raise that with the employee. It's always a difficult one. Employers need to be careful with their sick leave and then they see the person.

Scott: Well, assuming it's not the kind of things we're chatting about where its stress and such like, where you would go off to get some kind of relief from that stress, and a holiday is a good thing. But if it's a physical thing, then it might be. I suppose, the other key thing here, going back to the Kepak case, is if you're going to use those social media posts, you should print them off. You should save them and print those off so you have the evidence if the person was doing something later on, if it comes to light.

Seamus: That's important, and it brings to mind, I had two cases, one in relation to where political comments were made in around July time a number of years ago, and the employer wanted to take disciplinary action against the employee, and the employee had very clearly on their Facebook page, linked in where they worked, and said, you know, the details of the employer. And on that basis, the employer was saying, "Well, look, they've made these comments here of a political nature, and they have brought our business into a potential disrepute."

I'd another one where there was a young lady, and she said there was pictures of illegal materials that were around her, and these photographs weren't taken in work. They weren't even taken during a time whenever she would have been in work. But again, on her Facebook page, she had linked the fact that she worked for this business, and it was very clear what the items were around her, and it was clear that, you know, given the type of business that my client was running and the type of client that would have used the business, that they wouldn't have been pleased at all in terms of these photographs. And they again, they took disciplinary action against the employee. But again, the key thing there was that it was on the Facebook page that this is where the employee worked.

Scott: So, Facebook is public, and if you link it with the workplace, then you can certainly take some kind of action.

Okay, we're going to leave it there, everybody, and I thank you very much for listening. Thank you very much to Seamus McGranaghan. Just a last reminder that the next webinar is on the 5th of October. You can listen back to this stream in about an hour or so on our website and get all the other things, and the early bird for the annual review if you're wanting to come along this year. Finishes next Friday, so get your bookings in by next Friday if you want to see us in November. Thanks very much, everybody. Goodbye.