'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 / Relocation of Employees
• Holiday Entitlement
• Working Time
• Certified Sick Leave
• Holiday Pay
• Whistleblowing
• Health and Safety
• Probation

Questions in this webinar include:

•  If there is the potential for redundancies in Factory A, can the employer transfer employees to Factory B?
• Are you entitled to retract enhanced holiday pay?
• If an employee opts out of the 48hour working week, can an employer be held liable for allowing them to work too many hours?
• Do I have rights while out on certified sick leave?

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

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Transcript

Scott: Good morning, everybody. It's Scott Alexander here. I'm from Legal-Island. I'm here with Seamus McGranaghan from O'Reilly Stewart. We also have Hannah McGrath from the employment team doing some research in case we need it live and we have Lynsey Rainey from the L&D team at Legal-Island as well. It's a big operation here in the middle of Belfast.

So, thank you very much to everybody who sent in some questions. The format is the same. I'll read some questions out to Seamus and we'll have a discussion about those. You can send in some questions live on the little chat box. For those who haven't listened before, you'll be able to listen back. Our subscribers can or if you're on a free trial, you can listen back to the broadcast on our website about an hour after we've completed the broadcast today.

We'll finish at 11:45am. You can also search the website for all the previous podcasts and webinars. We've broken down all the questions. We've got them typed and transcribed and you can search any of the questions. So, we dealt with a number- could be 200 or 300 since we started. This is our anniversary, Seamus.

Seamus: Yes, that's right. Yeah.

Scott: We started a year ago. So, that's a wonderful thing that we're doing here. Now I have man flu, folks. So, if you hear me cough or whatever, please excuse me. I'll try and keep it down as much as we can.

Redundancy / Relocation of Employees ⚓︎

Q: If there is the potential for redundancies in Factory A, can the employer transfer employees to Factory B?

We had three or four questions overnight. I'm going to start with one of those because I thought it was kind first of all interesting one. It kind of ties into one of the relocation things we had last year. It involves, Seamus, two factories. They're about 25-30 miles apart and there are production level differences, I suppose.

It's really a question of if the redundancies have to come in or cutbacks have to come in in one plant, in Plant A, say, does the employer have the right to transfer employees into Plant B where there may be a need to increase production? It's not a reasonable request or if there were redundancies, could somebody say, "Look, I'm not going from A to B," or vice versa?

Seamus: This is similar to the question that we dealt with last month when we were talking about the fire at Primark and the possibility of relocation of employees as a result of that, but this is slightly different in that we're dealing here with a potential redundancy situation in one plant where there isn't the situation in the other plant.

I think the bottom line whenever you come to redundancies is always that you have to look at redeployment. Where there are available positions within the company, I would have thought that absolutely – the employees at risk of redundancy should be provided with notice of those alternative roles.

Scott: So, notwithstanding that it's a in a different plant, it would be deemed to be two separate plants, probably, a bit like the Woolworths cases.

Seamus: Yes.

Scott: So, if you're looking at collective consultation with the trades unions, you would need 20 or more in each of the plants before that would kick in. Even though they wouldn't normally work in both Plant A and Plant B, you should make the offer. Otherwise, it's likely to be unfair selection for redundancy.

Seamus: Yes, absolutely. Where there are positions available within the other plant, for instance, I think a tribunal would frown upon the fact that if those positions hadn't been notified to the employees based on giving them opportunity to make applications or to seek the transfer in order to avoid the redundancy.

I think that's entirely open to the employees to say on a redundancy situation, "No, 25-30 miles is not a possibility for me in terms of travel or in terms of suitability for the role," and they would be entitled in those circumstances to decline and maybe still seek their redundancy payment, their redundancy through the company. Certainly, where there are alternatives, those should be offered as a matter of course.

Scott: It might be slightly different for a different category of employees, I'm thinking about the managers, who could well be required to work from Plant A to Plant B and therefore, there is no redundancy, their place of work is both.

Seamus: Yeah. You may find, for example, that as you go up the sort of hierarchy and chain of command within the company that there will be individuals that are working between both plants. So, from Plant A to Plant B, there might be based there for a few hours each day and maybe travel to the other plant. There may be a few days each week. Or even sometimes it might be that they're predominately based in one plant but there is a clause within the contract that requires them to be mobile and to move around. So, I do think you would have to go back to the contract in those circumstances as well.

Another interesting point may be that if there was a reduction in work in one plant and you had a manager that was basing 50% of their time there that there may be a—rather than redundancy, there may be other options there in terms of maybe a reduction of working hours and things like that just if it wasn't available in totality at the other plant. There are lots of options around there as to what can happen. Certainly, as you go up the management chain, I would suspect that there might be mobility clauses. There might be circumstances that are just not as normal for the day-to-day employees. So, that's definitely worth some thought around that.

Scott: Presumably, you could look at asking people to move and not really look on it as a redundancy situation as well. It's really just a flaw of production, if you like. If you get volunteers, there's no problem at all.

Seamus: No. If the employees are willing to do that and certainly you would have circumstances where perhaps you would have an imbalance between one plant or the other where maybe one plant is very busy and work has maybe dropped off at the other plant. I suppose the reality is you'd be presenting that to the employees to say, look, the work has reduced.

We're taking steps at this point in order to avoid any redundancy and we'd like for volunteers to come forward if you would be willing to work at the other Plant (a) or a period of time, or possibly for an entire transfer. It will not suit every single employee. I think we covered that off last time. It will very much come down to whether there are public transport routes available? Will it work for people in terms of a travelling time? Maybe a further period of travel than what they're used to.

Some employees are very loyal. They want to do their best for their employee they're working for. You may get employees that it will suit and not be a problem. Maybe they have a partner that works at that other end where the plant is based and it wouldn't be a problem travelling every day anyway. So, look, there are those options. The key thing is always that you're keeping your options open and you're presenting these options to the employees.

You don't have to ram it down anybody's throat. You don't have to threaten them with dismissal, but you can put facts to them and ask them if they're willing to do that. It's always about engagement and presentation of that.

Scott: And of course, if there are unions then engage with the unions because they'll be party to the thing as well.

Seamus: Yes.

Scott: If there's a union agreement on flexibility, then you're pretty home and dry really.

Seamus: Absolutely. You would be of the position that if there is a union involved and the company is doing its best to redeploy and keep business going and keep business moving efficiently that the unions wouldn't stand in the way of that.

Holiday Entitlement ⚓︎

Q: Are you entitled to retract enhanced holiday pay?

Scott: Okay. We're going to move on to holidays now. We have a situation here where someone's written in. They have two types of workers - some of them work five days a week, some of them work three days a week. There is an enhanced holiday entitlement for long service.

What seems to have happened is that the ones working three days a week have ended up getting an extra week's holiday. Instead of getting three days, they have been getting five days. This has been going on for quite a while, but in the system, didn't pick it up, but they now have. The question is can you take away those extra days holidays?

In particular, going forward into the next leave year, the ones that were on three days a week will only be getting three days' holiday rather than five. Have they established custom and practice? Is there any difficulty with saying, "Hold on a second, you've been getting too many… we've just found this out. We're going to stop it…"

Seamus: This is an interesting question. It's a very good question, in fact. I quite like it. It excites me in some weird ways. Yes, this is a circumstance where obviously, there has been a mistake made by the employer here. It hasn't been picked up by if we call them part-time employees are getting the same benefits in terms of holidays as the full-time employees. And we have a situation here where there's a bit of an established custom that's happened over a period of three years that this might have been ongoing for.

I think for me, the reality and my advice is whenever I became aware of this question this morning that it took some time to consider it. I think my advice to the client would be it that it is a situation where you would go back to the employees and say – I believe that in these circumstances, the terms and conditions and their contracts of employment advise them that although you get an increment every year in terms of holidays, that is on a pro rata basis for anyone that is not full-time.

So, within the terms and conditions, it's clearly set out. It's clearly what the intention of the company was. My view would be that you would be going back to those employees, you'd be explaining what the situation is and that it has been an oversight. I think in this particular circumstance, the company has taken the right step in terms of they're not seeking to address the oversight in terms of they're not seeking repayment of holidays back or asking people to do additional hours, but I would be saying this has now been found out and it will be rectified.

Now, we're halfway through maybe or longer through the leave year. I think a sensible step is if people have maybe planned holidays and they've planned their leave, I mean, lots of us at this point have looked at the remainder of the year and thought, "Well, these are the days that I need." I probably would, as a goodwill gesture, advise that you would maybe leave the revision to take place from January, if it starts again, or if it's April as it tends to be sometimes.

But I would draw a line under it. I would be clear with the employees that it was a mistake, that you're not seeking to recoup that back but going forward, that the position will be that that would be on a pro rata basis.

Scott: And if the employees were to try and take a claim, it's not that strong, really, is it?

Seamus: I don't believe so. I think the company is in a much stronger position. It would be similar to the overpayment of wages that these part-time employees have received their enhancement, and an unfair enhancement in a lot of ways because their terms and conditions were clear at the time. It's just been an oversight by the company.

Scott: Okay. Thank you very much. If you are interested in annual leave and all those types of things, we will be having a working time review as part of the Annual Review of Employment Law 2018. That will be taking place in November.

So, here's my little ad. There are 350-odd people who have registered so far. The 8th of November at the Titanic is sold out, but you can register to go on a waiting list. But if you want to join us on the 20th of November at the Crowne Plaza, which used to be the Ramada down at Shaw's Bridge, there's some availability then and we'll be covering a number of issues, including how annual leave is calculated and all those things that we've dealt within in the past.

We had another question that actually came into my phone this morning. There's no point in sending anything to me now, folks. It's on silent. It's on do not disturb. I won't get them but one that did get in before I switched it off is about working time and a concern about the 48-hour limits.

Working Time ⚓︎

Q: If an employee opts out of the 48hour working week, can an employer be held liable for allowing them to work too many hours?

So, in this situation, employees have opted out. They are working more than 48 hours a week but the employer is concerned they may be doing too many hours and is there any kind of guidance or limit on the number of hours that somebody can work in a week lawfully under working time. If anything happened to the employees, would the employer be held liable because they've allowed them to work too many hours?

Seamus: Yeah. The status quo, the general position is, of course, that there is a European time limit in relation to working hours per week, which sits at 48. In the UK here, we have the option that you can, as an employer, you can approach an employee to opt out of the 48 hours. If the employee does wish and is willing to opt out, sometimes it's contained within the contract automatically, but you do want to have something in writing from the employer. If you're looking for formal words, you'll get that online. LRA or Acas provide that as well, but you should have it in writing that the employee is willing to opt out.

The opt-out itself is calculated over a period of 17 weeks. You may have two weeks when someone has gone over and above the 48, but the average of the 17, they're not. But where you do have somebody that has opted out—it's not everybody that can opt out of it. There are certain jobs and rules where legally, you can't do it, particular around if you're driving jobs or you're dealing with heavy-lifting of goods and things like that, and there are other ones where the 48-hour limit doesn't apply in the armed services and things like that as well. It doesn't apply.

But in general, for most employment where you're someone that is doing more than 48 hours, you do need to get the written opt out from them. We all have those employees in the office that are there from the crack of dawn in the morning and don't leave until late at night. Those are the ones that should be red-flagged. Yes, they're great workers. They're great employees. And in some respects, you'll hear a lot of employers saying, "I wish I had more of those types of people."

But you do need to be careful from the other side of the coin in terms of the health and safety. I think there's an important aspect involved with the question here. But the general position is that you can opt out, but just because an employee has opted out of the 48 hours doesn't mean that all the usual aspects in relation to working time don't apply to that.

For instance, you're looking at the likes of the rest breaks applying. You shouldn't be working any more than working seven days without a days' break or alternatively over the fortnight with two consecutive days. Whenever you sort of calculate that out, it's coming out that really you shouldn't be doing any more than about 76 hours per week.

Scott: That's because you need 11 hours between shifts and everybody's entitled to a 20-minute break if they're working six hours or more.

Seamus: Exactly.

Scott: So, when you multiply that out, 13 times 6 minus your breaks is 76 hours. That's on average.

Seamus: That's average.

Scott: You could do a 96-hour week. You could do 100 hours a week, so long as over that period, it's still coming out around whatever it happens to be. If you say I'm not going to do more than 48 hours and you refuse to opt out of that, then the average should be 48. It's not that you could do 52 one week and whatever it is, 46 the next, it's still 48 over a period.

Seamus: It's the average over those 17 weeks. I suppose it's worthwhile mentioning that if the employee says, "I don't want the opt out," the employer shouldn't be forcing them and there shouldn't be any detriment arising to the employee either in relation to that. That's obvious. And sometimes, you will have to take the strong approach with an employee that overworks and say to them, look, you need to take a break here. You need to take the days off or alternatively, you need to go home now and make sure that you have sufficient rest time in terms of your work.

There would be risk, certainly from a health and safety point of view, if you have an employee that is overworking, if we put it that way, then runs into a period of ill health where the employer has ignored that or hasn't taken the appropriate steps maybe to enforce the breaks. I could see a circumstance where personal injury claims would arise. Certainly, if you take a step back and look at it from the further away case, it's not good to have an employee that is going to burn out or an employee that you get to depend upon as a reliable good employee and then they fall sick.

I think the way this works and the advice and everything else from medical professionals is that if you overwork, you will burn out, you will get sick, and then that just costs the company more at the end of the day if they have a sick pay scheme or if they have to bring somebody in to replace that person.

Bottom line, I think you're probably looking to answer the question in around a maximum of 76 hours. Again, over the average of 17 weeks, making sure the employee has the appropriate rest breaks, appropriate time off, and then also making sure that there aren't any issues arising in terms of the employees.

Although, where you're seeing red flags arise in terms of the employee, maybe like yourself, Scott, with this bad cold coming or something along those lines, if there are red flags happenings, that you're stepping in and dealing with it as the employer because I think it could come back to bite.

Scott: So, what you're saying is I should sue Legal-Island because I've got this bad cough.

Seamus: No, definitely not.

Scott: It's work-related injury. That's good. We'll stick with the sick leave issues.

Certified Sick Leave ⚓︎

Q: Do I have rights while out on certified sick leave?

This question here—I am currently out—so, this is coming from an employee, which we don't get that very often, but we can twist that around if you like. I am currently out on certified work-related stress. However, within one week, I received a letter from the HR department and this week, I received an email from the company director looking to meet me or take a call.

This contact is making me more anxious and I thought being out on certified sick leave would protect me from being contacted. In essence, I feel under pressure, as if I should make a commitment as to when I will return to work. Do I have rights while out on certified sick leave?

Seamus: I think this is a real question where balance needs to be applied. We don't know what the reason for the absence is here. You can imagine if it was along the lines of work-related stress, it could be a personal problem, maybe the sick line doesn't tell the employer very much.

Scott: Well, this person is saying it is work-related stress. So, let's take it on face value that they're being genuine.

Seamus: Yes.

Scott: There's a problem at work and they're out on sick and put in the sick line and the employer is saying, "I want to see you."

Seamus: Yeah. There is a right for the employer to keep in touch with the employee. I think it's wrong for the employer to get a sick line that says work-related stress and to sit back and do nothing and hope the employee is going to recover, that the issue is going to disappear into the air and they'll be back and everything will be hunky-dory again. I think that's just not going to happen.

But I think the employee has to accept and should expect that the employer will make contact with them, particularly if they're putting in that there's work-related stress, it's the duty of care of the employer to find out what is the reason for the stress and what can be done in order to rectify that.

Scott: And most of the time when I come across this, the first you know as an employer that there's work-related stress is when the sick line comes in. So, they've never mentioned it. There's no other indication. It just comes in and the doctor has written work-related stress on the fit note.

Seamus: It could be something as minor as there's a bad conversation happening between two employees or a manager of employees or there could be a longstanding bullying issue that's just built up and the employee can't handle it anymore to stay in work and often in those circumstances, it's not brought to their attention.

They haven't adopted the grievance policy and procedure or anything like that. There does have to be a realisation from the employee that certainly, if they put a sick line in from that, the red flag is up for the employer, the employer is going to take steps to try and find out what is wrong, how can we rectify it? How can we get this employee back to work?

Saying that, the employer should not be overstepping their mark and certainly the employees shouldn't be feeling harassed or worse than that, that their period of recovery is going to be lengthened by the actions of the employer. A lot of these circumstances that arise, really the best thing is to try to get contact with the employee, find out what the problem is, find out what's going on and take the next necessarily steps from there.

It may be that you will get an employee that will bury their head in the sand and sometimes genuinely enough, they won't feel fit enough to engage and you'll maybe get—I've had clients that have had calls from the employee's GP ringing them up to say, "You're harassing them, you're making this worse for them. Please don't contact them," or you'll get a letter from the GP or something along those lines.

For me, I think probably the advice in these circumstances where you would have an employee that is resistant to making contact, that you have to weigh up what is the issue here. It may be that it isn't a work-related stress matter, that it's something personal and they do just need a bit of time in order to get things sorted out in their private life. Where it's work-related stress, I would be stepping in to try to resolve that.

Scott: You would step in more quickly. The bottom line is maybe to go back to this person who sent the thing in, if they're listening, how can you solve a work-related stress issue if you don't go into work or meet your employer?

Seamus: Precisely.

Scott: It's not going to go away.

Seamus: It's not going to resolve.

Scott: It's going to build up. I've seen so many employees over the years who take time off, legitimately because they can't cope. They need a pressure valve and the longer they're off, the more it builds up because 24 hours a day, they've got nothing to do but think about the problem.

Then it kicks in—there's a realisation after a period—this organisation has been working without me. I am completely dispensable. Then it hits your ego and you go off and it's so much more difficult to get back to work. If you've been off even four to six weeks with stress-related things because genuinely, people start worrying about things.

So, my advice to this person that—to get your similar is trying to engage as quickly as you can because it's not going to go away. It's not going to get any easier just by taking time off. You've had a little break. If it is related to work, you've got to get in there and explain why. There are many different ways that that can be resolved through coaching, counselling, mediation, all kinds of stuff would assist this person to hopefully get back to work without it being threatening.

Seamus: Yeah. No. Absolutely. I think the other pattern that I see arising is that you will have an employee that is disgruntled, is suffering from work-related stress, takes time off, maybe takes two weeks off, comes back to work, everything is good for maybe another two weeks and then there's another episode and there's another period of absence and nothing gets resolved and then you're into this pattern of time off happening all the time.

You're just not getting the contractual benefits from the employee of them coming to work and doing the job that you want them to do from that point of view. Sticky plasters tend to not work in these circumstances. I think where I don't want to come very much from the employer's mindset because I know that we've had this question from an employee.

But from the employer's point of view, if you have an employee that is not playing ball with you, isn't engaging, your only step may be that you're going to get an occupational health appointment set up and have the employee evaluated by the medical practitioner. And maybe one of the questions that you'll ask the doctor to address is, "Is this person fit and able to attend the meeting with me?"

Scott: Because it's a meeting. You're not asking them back to work. It's a meeting.

Seamus: Exactly.

Scott: And you would move more quickly as well, I think, if somebody's saying it's work-related stress, you've got to solve the thing. But you don't have to wait six months because you get paid six months. You can take action and manage your absence.

Certainly, from my experience, you might come across where the occupational health report will record the fact that there is a stress at work and the doctor will record that it's not going to get better until it's addressed and dealt with. They tell the employee that, but when the employee sees that in black and white sometimes a penny drops and they think, "Okay, look, I am going to have to face up to this and have it dealt with."

Sometimes, that's your only option. Alternatively, you can get engaged with the GP. But the worry is always with a GP report that it's just not as independent as the occupational health report. And I suppose just from the employee's point of view in terms of being straight down the line with them as well, there are circumstances sometimes within the contract, it does provide the right for the employer to seek their medical notes and records.

They'll always have to consent to that, but it's just a step in case they get that and they're very surprised and they think that. I would get calls from some employees saying, "I can't believe they're asking for my GP notes and records. That's such an invasion of my privacy." But it may be that the occupational health doctor has said, "I need to see the notes and records," to see what's going on here. It's just a warning to the employee as well to maybe expect that if this was to drag on for longer than it should.

Holiday Pay ⚓︎

Q: If an employee resigns receiving PILON, is the employer obliged to pay holiday pay?

Scott: Okay. We're going to move on, kind of back and forward as well, at the same time. We've got a holiday pay question but it's based on contracts. We have an employee who is leaving the public sector and is being paid three months in lieu of notice plus pension entitlement for the notice period. He had a without prejudice meeting to agree this—we'll maybe discuss the lawfulness of without prejudice meetings in Northern Ireland—but anyway he had a without prejudice meeting to agree this and he handed in his notice.

However, the written terms that he has been offered do not clarify whether he will be paid any annual leave entitlement for the three-month period. Do we also have to pay holiday pay that would have been accrued or do we not have to pay it, as he will not have worked the three months' notice period because he's been a PILON, a payment in lieu of notice?

Seamus: Yeah. Again, this is a question that both Hannah and myself come across regularly, particularly around the termination of employment, whether that is that someone has put forward a resignation and the employer is saying, "I don't want you hanging around for your notice period," or you're working through some sort of termination agreement and compromise agreement in terms of that as well. It's something that comes up fairly regularly. It really is a contractual question. You must go back and look at the contract of employment.

Number one, I suppose, on that is does the contract permit and provide for the employer to pay in lieu of notice. If it doesn't, there isn't an automatic right for the employer to enforce that on the employee and the employee is entitled to say I have a notice period and I want to work it.

Scott: Even they're sent on garden leave, so they're sitting at home tending the garden, they would accrue leave during that period.

Seamus: Yes.

Scott: In this case here, this chap seems to have gone straight away. His contract terminates, say, I don't know what today's date is, the 5th of October instead of the 5th of January next year and he's no longer working. Therefore, in that situation, the contract ends. He's not entitled to any holiday pay unless there's something in the contract.

Seamus: In the contract.

Scott: Key thing is the contract.

Seamus: Exactly. So, it would be typical and I think fair where you have someone that has agreed . . . I mean, it seems to me that this person has agreed to take the PILON. A lot of employees automatically do agree because they think, "Well, I don't have to work it, and I'm still getting paid for it." Maybe whenever they get home and they're three weeks down the line and have spent the money already as it tends to happen too and there's no job in sight, that they then start to think about, "What about my other benefits here? What about my holidays? What about my gym membership?" You know, all those additional perks.

Scott: The car allowance and all that kind of stuff.

Seamus: Yes, exactly. That will come in to play. Again, you're going to have to go back to the contract and look at the wording on the contract to find out whether benefits will accrue during that. Some of the contracts are blind to it and don't say anything about it. Some of them have good provisions in.

Often, the company car one is always an issue where someone will say—we had a query this week about this where someone said, "You're wanting to PILON me out, I'm happy to do that, but I need the car, and can we come to some kind of agreement? Maybe I'm not taking it for the 12 weeks, but can I have it for 6? Because if you pull the car, I have no transport." Again, you're going back to the contract to look to say, "Where are we in relation to it?"

Scott: But the pay in lieu of notice, it kind of infers in that phrase or implies rather that you get whatever you would have had had you worked your notice, had you worked that period. That would include all contractual benefits generally. But again, it just comes back to what's in the contract and what's been agreed. This one here, whether they've got the right or not, they seem to have had a meeting to discuss it and have some kind of agreement and then they're saying, "Oh, we forgot about this." What about this issue, Seamus, on the without prejudice meeting? How valid are those?

Whistleblowing ⚓︎

Q: Can you clarify the law in NI regarding without prejudice conservations?

Seamus: Yeah. Well, maybe just before that, I'd maybe just mention that I suppose, my advice tends to be in those circumstances where you have the holiday issues arising, it's maybe a little tricky from the employer's side, but often, I will say the employer's instructions are, "I don't want to pay the holidays. We've paid PILON and we don't want to do it." Often, my advice will just be, "Well, don't pay it and wait to see if the employee comes back and makes the request. If the employee makes the request, let's give it some consideration then at that point."

Often, you'll find the employee doesn't come back because it's not something that will automatically register with them until they're having a pint down in the pub and person beside them says, "Did you not get your holidays?"

Scott: Your paid holidays, yeah.

Seamus: "I know a great lawyer," and all that kind of stuff. Sometimes it works, sometimes it doesn't, but certainly, as a starting position, maybe it's best that it's not paid. In terms of these prejudice discussions, the bottom line is in Northern Ireland the without prejudice discussions don't apply. We have a situation in England where you can have these . . .

Scott: Protected…

Seamus: Protected and permitted discussions between an employer and employer where they can come to your arrangements in terms of terminating the employment and the employee can't make a claim to say there was a decision already made because the law in England and Wales has now changed to permit that to happen. It's a very good way in order to try and resolve often very sticky and difficult issues that have been maybe festering for a long period of time and where you just know, as the employer, that this is going to end up in a tribunal.

It's a way of cutting through all of that and making a very easy exit for the employee and surely for the employer that it's going to go no further. But we don't have the benefit of that in Northern Ireland. I've done many a case and we've done our best in terms of trying to run cases whereby there have been discussions that have taken place where a manager has just been so annoyed with the employee they've brought them in and said, "Look, this is not working out. Can we come to some sort of an arrangement?" The employee is not happy with the situation and takes the view of, "Well, you've already decided that I'm going, so it's constructive dismissal and I'm going to take my chances here in tribunal."

As we all know, no matter how reasonable and sensible you try to be at times, sometimes other people are of the view they want their day and they want to sit down with a panel and they want to be able to tell their story. So, just to be clear about it, Northern Ireland, no protected discussions. Certainly, there's ways of facilitating to get to a place where you can have a discussion. Look, we all have done compromise agreements. They have to come from somewhere, but you just need to tread very, very carefully with it.

Scott: Yeah.

Seamus: Take advice . . .

Scott: Take advice. Go through a lawyer, you get some protection there, you get legal privilege there perhaps or you can go through the Labour Relations Agency and there'll be issues through there as well. We can discuss those as well. I haven't had many questions on the chat box, folks, but if you want to send them in, you can. You're listening to me. I'm Scott Alexander from Legal-Island and I am chatting to Seamus McGranaghan from O'Reilly Stewart.

Q: What are your thoughts on an ethics online reporting system?

The next question we have here, I suppose a bit esoteric—I know that whistleblowing should not be the method of reporting a personal complaint of harassment. What are your thoughts on ethics online reporting system, whereby employees can report, for example, harassment anonymously?

Seamus: Well, this is, again, interesting. We don't know what the circumstances are for certain individuals in terms of why they wouldn't want to bring a grievance. Maybe they feel they'll be putting their head above the parapet. Maybe they feel that there would be repercussions for them if they were to highlight things. I mean, whistleblowing, we have our public interest disclosure order in 1996, which is this legislation which covers off on it.

Often, if you need to be careful in terms of whistleblowing because often, where you have a client that says, "No, I blew the whistle," and when you actually take them through the terms of the legislation, it can be difficult to define. There's all those things like good faith and everything else when it comes to that.

A simple way for an employee, maybe, to bring something to the attention of their employer without putting their head above the parapet can be through reporting it anonymously. I'm not a huge fan—if I'm giving advice to employers, I'm not a huge fan of the anonymous complaint or anonymous notifications that come through. They're difficult for an employer to handle and it can be very difficult to get to grips with what the complaint is about. You have nobody to go back to question and ask about, "What did you mean about that?"

You have nobody to go back and report your outcome to either whenever you get it, but I'm not saying they're not helpful. Certainly, I've had a number of circumstances where matters have been brought anonymously. They've been investigated by the company and from the company's point of view, they're very thankful that it was brought forward because it has identified problems and issues.

Scott: It can be difficult because you don't know the motivation of the individual. You could be doing it out of revenge because somebody slept with your spouse and therefore, "I'm going get them." You have no idea because it's anonymous.

Seamus: Definitely, there's that attitude that happens. I think for an employee, you really have to think carefully about it. Is an anonymous complaint this way or the reporting of it online? Is it really going to address your concerns? Is it really going to be worthwhile for you to put that in? You could call it a lot of things in terms of—there are good reasons why so many wouldn't want to be putting their name forward in terms of it, but are you going to get the desired result out of it? Is it worthwhile bringing it? If it's something to say, "Well, I've got it off my chest," it's probably not the way to do it.

Scott: Just somebody on the chat box pointed out it's a global reporting system. There are whistleblowing organisations. I can't remember what PCAW (Public Concern at Work) has changed its name to. There are local ones as well.

Seamus: There are.

Scott: If there's an individual and you've got an issue—if there's a crime going on in an organisation, it's a bad thing and it's a good thing for an employee to raise it to get rid of that criminality, if you like, but it may be best to take advice from the union, from a lawyer, from one of those organisations that helps whistleblowing before they then put in their complaint or do something.

It's better maybe to get advice—from an employee's point of view, if they're dismissed, there's no limit on the compensation, but you're still out of the job and you've got to win your case. They are very complex because you've got to show some causal effect here that you lost your job because you were raising this whistleblowing because of it.

Seamus: That's it. The other concern I have with it is it doesn't resolve the underlying issues. It creates that phantom zone of mistrust. The employer doesn't know who's made the complaint. The employee is not satisfied that their complaint has been addressed and dealt with and that's a waste of time. It festers a toxicity to it that I don't think is helpful.

But saying that, look, we all know the various types of websites you can go on, even if you're looking for employment and you come across a company and you Google it and you see the websites with the various types of reporting that is done internally by its employees onto these websites and you think, "Is this a good company to go and work for or not?" That has to have a huge impact for the employer in terms of those.

Scott: You don't have control over that anyway.

Seamus: No. Absolutely.

Health and Safety ⚓︎

Q: If an employee works from home, what are the legal obligations for employers?

Scott: Okay. Health and safety, a couple of questions here—I am seeking legal obligations for UK employers wherein an employee requests to work at home full-time and this is granted. In the UK are things like desks, furniture, internet, etc., obliged to be paid for by the employer even in the circumstances where this home working arrangement is at the request of the employee? Secondly, what about liability and normal health and safety obligations that arise in our workplace? Does the employer need to ensure that the home is a safe workplace or face liability if something goes wrong?

Q: Does the employer need to ensure that the home is a safe workplace or face liability if something goes wrong?

Seamus: We've seen the rise in terms of home working and certainly, look, there's clear benefit in relation to both the employee and the employer in terms of the right for home working. It helps the employee. It improves productivity. You have a happier employee as the employer. The bottom line is that the employer is required to protect the health and safety and the welfare of homeworkers who are employees in the same way that they are obliged to do it if they come into the office.

So, a risk assessment—and I'm probably answering the second part of the question first here—a risk assessment should be carried out of the work activities and appropriate measures taken to reduce any sort of associated risks for that.

Scott: I'm going to anticipate that the employer doesn't have to pay for the desks and the tables and whatever. What they do have to ensure is if somebody is being allowed to work from home, they have adequate materials and desks and equipment that won't injure themselves. You need a proper desk. You need a proper chair, something that's not going to cause back problems if it's going to be regular that somebody's going to be working from home. So, if you're going to allow it, you have to make sure they've got the equipment. I suppose it then comes down to who's getting the benefit here.

Seamus: We were having a quick chat before and Lynsey was saying that it's a 15-minute job in terms of going to someone's house and checking that you're satisfied with the desk and the chair that they're working at and that it's not going to cause any difficulties.

In respect of payments in terms of internet and things like that, you do come across that and certainly I've come across contracts where the employer will pay for the broadband line at home, but for a lot of people, I think the sensible and reasonable way of looking at it is that the employee sees it's getting a benefit and the employee sees they are being permitted to work from home.

It's to their own assistance in terms of maybe their childcare and all sorts of issues. The vast majority of employees will say, "I've got a broadband line already and I'm just going to feed off that." They'll take a sensible view in relation to it.

Scott: But their employer—if you're looking at safety and certainly access to the system, you'd need a VPN, a virtual private network in order to cover yourself from a GDPR...

Seamus: GDPR and everything has changed. Absolutely. There's definitely more of an onus to make sure that everything is protected in terms of that. But most of the time, that can be fairly easily done without overcomplicating. Obviously, where you have employees that are maybe doing more of a physical role and they're able to do that from home, you need to be careful. There's specific guidance in and around the likes of providing protective equipment.

Scott: Peace workers and stuff like that as well.

Seamus: Yes, you know, in terms of that. Most of that can be dealt with, I think, on a fairly sensible basis. It is an interesting one in terms of—it's something Hannah have I have both come across a fair bit is policies and procedures for home working.

What we find is a lot of employers will be very hesitant to have a policy and procedure on home working because they're almost afraid that if they have a policy and procedure that everyone is going to make an application I'm going to benefit from. For me, it's always better to have the policy and procedure in place and everybody's working off the policy and procedure and it's applied uniformly across the board.

Probation ⚓︎

Q: Can you get rid of an employee during probation without warning or reason or do you have objectives, support and cautions?

Scott: Okay. We'll take one last question and then we'll have to go, folks. It comes up quite a lot and it's on probation, which is the most searched for item on our website, believe it or not. Quickly, if you don't mind, Seamus—can you get rid of an employee during probation without warning or reason or do you have objectives, support and cautions?

Seamus: I know we don't have much time left in relation to this one, but I think gone are the days where you can just pull the employee and say, "Look, they're on a probationary period. They don't have their qualifying statutory period of 52 weeks. I can just dismiss the employee if I want." My advice is always that you follow the standard three-stage procedure here in terms of the disciplinary process and put the issues to the employee in writing, bring them in the meeting to discuss it, and issue them with the right of appeal.

There are far too many ways for the employee now to be able to bring claims where they don't require the statutory continuous period of employment in order to do that. We ought to be aware of the whistleblowing claims, the health and safety claims, the discrimination claims that arise and if you bring somebody in, just dismiss them, and don't give them a reason for it, you can expect that they are going to throw wild allegations against you.

So, in short, my opinion or not is you go through a process in terms of dealing with it and it protects the company. You're saving yourself a lot of hassle and a lot of money by dealing with it that way.

Scott: Okay. Thank you very much to Seamus McGranaghan and everybody at O'Reilly Stewart. We hope to see you the next time, which will be on the second of November, same time, 11:00. Just a reminder, you can hear this back on the website in about an hour or so. We'll be transcribing all the questions and breaking them up. If I don't see you beforehand, I hope to see you on the annual review on the 8th of November or indeed on the 20th of November at the Crowne Plaza. I hope to see you soon, folks. Take care.