Topics covered in this month's webinar include:

• Working Time
• Sickness and Absence
• National Minimum Wage issues
• GDPR

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

Questions in this webinar include:

• What is the likely impact for Northern Ireland employers of the CJEU working time case, Federación de Servicios de Comisiones Obreras, which is CCOU, and that's a Spanish trade union, against Deutsche Bank. And the case reference if you want it, folks, is C55/18.
• What are the obligations around paying employees during phased return to works?
• Which wage deductions are lawful and would not constitute a breach of the NMW?
• What can we expect from a HMRC NMW inspection?
• What is the limit on carryover holiday when someone is returning from sick leave?

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

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

Transcript

Scott: Good morning, everybody. It's Scott Alexander here from Legal-Island with Seamus McGranaghan from O'Reilly Stewart and Rolanda Markey, also from Legal-Island, on the technical stuff. We're going to be dealing with your questions today during the webinar. As with all the other webinars, if you're a subscriber, you can listen back and we'll have the transcript up in a week or so as well if you want to check. And you can go back and see all the other Q&A’s that we've dealt with, I think for well over a year and a half now, that we've dealt with and look up particular subjects under the resource section on the Legal Island website.

Today, we're going to be dealing with a couple of working time issues, sickness/absence, national minimum wage, and hopefully data protection as well. You have the little chat box, comment box on your screen if you want to send any questions in live and please do so. If we don't get around to them today, then they'll be added on to next month's webinar, which will take place on the 5th of July at 11:00 in the morning.

So, good morning, Seamus.

Seamus: Morning.

Recording Working Time and Overtime Hours

Scott: The first question that we're going to deal with is to do with a very recent ECJ case. And the question is:

What is the likely impact for Northern Ireland employers of the CJEU working time case, Federación de Servicios de Comisiones Obreras, which is CCOU, and that's a Spanish trade union, against Deutsche Bank. And the case reference if you want it, folks, is C55/18.

So, Seamus, tell us a bit about the background of that case, why it's so important in Northern Ireland.

Seamus: I mean, I think actually in the podcast, either the last one or the previous one to that, we actually were discussing the CCOO, the trade union, in a different capacity. But they are a trade union in Spain and they brought an action against Deutsche Bank within their National High Court in Spain, and what they did was they made a request to the court. And the request was that the bank should be obliged to record the actual working hours and working time of its employees for any particular day.

Now, this mightn't sound anything new to some of our listeners. A lot of people have a timing system anyway where people maybe clock in and clock out and it's recorded what they're doing during the day. But the bank's position was that the domestic law in Spain only required such time recording systems for overtime work and it didn't impose a general obligation to record all the time by its workers. So the bank were saying that they weren't really interested, that they knew what everybody's general hours were. It was stated in their terms and conditions. But they were recording the overtime that they were working instead, and that that was sufficient under the directive.

But, importantly, the court came back . . . and I'm just going to quote what the court said. They said that in the absence of such a working time recording system, that it wasn't possible to determine objectively or reliably either the number of hours worked by a worker and when that work was done, or the number of hours worked beyond the normal working hours as overtime. So the clear direction from the court under the decision is that you do have to record all of the hours that are worked in the day for each employee.

Now, it doesn't give any guidance as to how an employer should go about doing that. The requirement is that that's what it means. So it does mean that for each member-state within the European Union, that for them to comply with the Working Time Directive, and to bring that into their national laws, that they are required to keep the hours of work that are worked by each member of staff.

So I wanted to sort of maybe just take a step back and look at what law we're talking about here. So we are going back to the Working Time Directive. This was a 1993/104 directive and it was consolidated in 2003 under the amended legislation. And the UK transposed that directive then into what we know as our Working Time Regulations 1998 and our Northern Ireland version of that.

Scott: The Northern Ireland version was consolidated into 2016.

Seamus: That's right.

Scott: It didn't bring into that legislation any of the more recent legislation. It's basically just taken all the other little regs and additions and added them, and so we deal with the 2016 regulations. England, and Wales and Scotland are still the 1998 . . .

Seamus: That's right.

Scott: . . . regulations, but they're pretty similar.

Seamus: Very much so. And Regulation 9 over in the 1998 regulations in England and our 2006 regulations, I mean, the requirement is to keep records which are adequate to show the time that are specified in each piece of the legislation. And essentially what you're looking at is that we now have a disparity in relation to what our domestic or what our law tells us that we have to do in terms of time records as to what the European Court have come back to tell us.

Scott: So if I were an employer in Northern Ireland, and I say, "I'm okay. I'm compliant with the 2016 regulations," which is regulation 11 in Northern Ireland, "to keep adequate records." The point is that what I consider adequate records, in order to reflect what the directive actually says, I should be keeping a record of every hour that's worked by every worker.

Seamus: That's it.

Scott: Whereas anything less than that would not meet the terms of the directive and, therefore, there may be a tendency that I would breach somebody rights to time off or whatever it happens to be under the regulation.

Seamus: That's exactly it. And really, I mean, what we're saying at the minute is that our laws are not in keeping with what the requirements of the directive are. And the usual position would be that it would be up to each member-state and up to each country now to amend their legislation and their laws that are applicable. But that's all well and good. As we all know, we're in this quandary at the minute, that the plain and straightforward view is that our government has told us that we are leaving the European Union.

And it's this question, and the real interesting aspect of it is around well, what's going to happen then? Because my understanding is that what government has said is that any European legislation that has been adopted up to this point will remain law in the UK. But now we have another element of the directive that's saying, well, you have to implement the recording of all of this additional information for some employers as to what the worker is doing on a daily basis in terms of their working hours.

My kind of view in terms of that is I think that this is going to create a bit of a difficulty, you can imagine. I mean, the enforcement itself of the employer to record these hours, the enforcement comes from the Health and Safety Executive. But we all know that the likelihood is that . . . and the way that all the case law is going is that there's protection for the employees and essentially that the employees should be remunerated on holidays and essentially that it should be reflective of their genuine working week as they do. So the law has moved in the favour of the employee in that respect already. And I can't imagine that there's going to be a change in the stance in terms of it.

Scott: No, the law's moved, but it's all through case laws.

Seamus: Yes.

Scott: Or through ECJ cases that have also been looked at domestically, but the legislation hasn't changed at all. So your point about Brexit, presumably, is that, assuming that we come out of the EU, what will be adopted will be the regulations which are inadequate, as opposed to directive, which gives the protections. And that might be . . . I don't know, I'm just putting it out there. But it might be one of the motivations for not amending the legislation, is that if you bring it up to date to reflect the case law, and the additional protections that are in the directives themselves, then that would be adopted by the UK post-Brexit.

Whereas, currently stands anyway, assuming that we come out of the EU, what we'll get is adequate records as opposed to requiring everybody to record every hour.

Seamus: A daily record, yeah.

Scott: We'll go back to normal pay or, sorry, contractual payroll and average pay and so on, because those things are contained as a result of interpretations of the directive as opposed to the Working Time Regulations.

Seamus: That's right.

Scott: And that would be the fear, I think, if you're from a trades union point of view or worker point of view, is you end up with fewer rights post-Brexit as a result of only adopting the regulations rather than directives.

Seamus: The directive, yeah, that's right. And I mean, I think from the commentary that I've that I've read and around this, and this is a fairly recent case, so there's not a huge amount. But what it's saying is that the reality is that as a result of the decision, the normal process would be that the employers are going to find it harder to defend a claim of working time limits and that minimum rest breaks and things like that haven't been complied with. And I think we're already, with the way the case law has moved, we're already on that track. So it'll be interesting to see how that develops.

But the other aspect I know that we had mentioned previously, the Garda Siochána case, and there was this aspect, almost, of it doesn't matter what the domestic law says, we have to enforce the directive.

Scott: Yeah, just apply the domestic legislation is what they were told in that case, yeah. The WRC against Garda Siochána.

Seamus: Yeah. So that's one way of looking at it, but then again, that is coming from the south. They're not planning on leaving Europe at this point. So who knows what's going to happen?

Scott: They also have stronger working time laws as well.

Seamus: Yeah, because we'd mentioned the Kepak case and things like that as well in terms of the decision there. And the decision said, I mean, essentially, it does say that all the working hours should be recorded, and that's the way that things were moving in the south anyway. So it's no great surprise, the decision itself, but it's just the ramifications that it'll have.

Scott: Okay. You're listening to Seamus McGranaghan and Scott Alexander. I'm from Legal-Island. He's from O'Reilly Stewart. And if you want to send in any questions, do it through the chat box.

Sickness Policy and Phased Return to Works

What are the obligations around paying employees during phased return to works?

The next question that we have is to do with sickness and absence. And it says, "We are reviewing our sickness policy and are addressing phased returns to encourage employees back to work. In order to make this mutually beneficial, we want to ensure that it's financially viable for employers to engage in phased returns, but are unsure what, if any, financial obligations we have." Any comments?

Seamus: Yeah. Well, I mean, I think that, looking at phased returns, I think that phased returns are always of a benefit if you can get the employee back to work with the assistance of a phased return. And it's certainly a positive step, but we tend to come across phased returns more with the footnotes that we receive whenever an employee is intend to come back to work or, alternatively, whenever we receive an occupational health report. Sometimes they can give guidance on phased returns.

But essentially, just to break it down, the phased return itself tends to be an arrangement and agreement whereby the employee has been off on a period of long-term sick leave and they're looking to return to their full duties and hours, but doing it gradually over a longer period. And sometimes this can run from four weeks, sometimes it can run out longer itself. It just depends on the circumstances, how long the employee has been off and also what the circumstances are, what has been the reason for their absence.

But as I said, it can provide a valuable period of readjustment for the employee to come back into work. And certainly to keep morale and to keep good relations, it's certainly something that should be considered and looked at. It's important, I think, to conduct a return-to-work review meeting and to have those discussions during the time that . . . whenever the employee has indicated that they might be fit to return to work. Or the employee might simply be saying, "I'm not fit and I don't see myself being fit and going forward." So it's a good way to try to get the employee back in, but as I said, they're often included within recommendations within the footnote of the occupational health reports. And really, by facilitating the early return, you're allowing the employee to settle back into their normal routine, and generally this has been shown to prove overall well-being.

The question around this one is really about the financial aspect and whether it's mutually beneficial. So just to sort of move on and talk about that aspect of it, the reality is that, in most contracts, there will be an entitlement to SSP and not for contractual sick pay. Where there is only SSP entitlement, if the person's returning back to work on a phased return, it's more than likely that they'll be paid for the hours that they've worked but they'll not receive anything after that. So if they're sort of coming back two days a week to start off with, they'll receive payment for two. And then the question is what happens when the amount of the statutory sick pay is exhausted by two days' work, that they wouldn't receive anything more.

You also need to be careful about what your contract says in case there is a right for contractual sick pay, and really then, at that point, you're working out if I come in to work for two days, am I entitled to the remainder of my pay then, as if I was there on a full-time basis. So it's really important as to what's set out and what's detailed within the contract itself and following that.

Scott: A lot of people use holidays because the holiday accrues during the sickness period, or at least the working time element, going back to the issue that we had in the last question. The working team element accrues during sickness, so people have still got holidays to take. If you're not getting contractual payment, presumably topping it up with holidays is one way to make it affordable and I suppose to use up holidays that are going to have to be taken or carried forward.

Seamus: Yeah. Look, I think it's mutually beneficial there for both the employee and the employer if there is a period whereby, part of the phased return, that they can use their holidays in order to sort of top up their pay and make sure that they're receiving it. As well as, look, one of the other really important points is that sometimes a contract will only provide for statutory sick pay and not for contractual sick pay. But it's important that there's consistency that is applied and that any sort of . . . that supposedly all the employees are treated in an equitable and a consistent manner.

The interesting aspect is that sometimes you'll have an employee who is off on sick and they're coming back on phased return and there's not a great relationship between the employer and the employee and the employer says they're getting SSP and that's it. Other times, where there is a long-standing member of staff, excuse me, that is well-liked and has been loyal, the employer might have a tendency then to pay them more. And it's just keeping that balance in terms of making sure that there's consistency across the board. But other than that, I think that a sensible way to deal with it is to use the holidays to fill the gap.

Scott: There are things that you can get, various protections, you can build in and get some kind of group payment if you like as well, so long as it's not abused. Or you can maybe build it in, over time you get additional holidays or something like that during the return, because you've been there longer you get longer types of holiday pay.

Seamus: Yeah, and I suppose the other thing to watch out for as well in case that there is some kind of policy available, or there's insurance available via the employer, to avail of that and to check the terms and conditions of it as regards whenever you're maybe having the meeting initially to create and to maybe plan ahead in relation to that so that the employee's given as much support as possible.

Scott: Looks good with other employees if you're supporting people when they come back to work. There are additional benefits as well as additional costs, I think, when you're looking at that.

National Minimum Wage

Which wage deductions are lawful and would not constitute a breach of the NMW?

National minimum wage is the next one we got. What deductions from pay that could potentially bring pay below the national minimum wage, other than tax and national insurance, which are lawful and would not constitute a breach of the national minimum wage? I think this goes back to Iceland and other cases that have been reported in the press. So give us a bit of background and then explain some of those things.

Seamus: Well, we know that the national minimum wage and has been, unfortunately, for . . . I can't remember.

Scott: Twenty years now, 2000s, the regulations?

Seamus: I think that's right. But I mean, the current rates, you know, for 25 and up you're looking at £8.21 an hour, right down to somebody that's under 18, £4.35. And since the introduction of the legislation, HMRC have taken a position whereby they are looking to enforce, they're looking to do inspections to make sure that national minimum wage is being paid.

Where a lot of employers have fallen foul of that is because of deductions sometimes that they're making outside of pay, and also certain requirements, conditions that they put down on employees in order to take up the role almost. So going back to the sort of historic cases there, the Wagamama, we talked about it on the podcast I think last year, that was a staff uniform issue where they said that HRMC did an inspection and they said that Wagamama failed to pay £133,000 over 2,630 staff members because they had a requirement for their front of house team to wear black jeans. They were provided with a branded top but they said, 'We'd like you to wear black jeans.' And then HMRC ruled that that was an expense for the employee and it led to the employee's salary falling below the minimum wage.

There was a similar situation with another retailer, Monsoon, I think, it's a ladies fashion shop. I'm not 100% sure.

Seamus: They said that 1,438 workers had been underpaid by £100,000 and that was because the staff were required to wear the retailer's fashions and they had to purchase that. Now, they got a staff discount in terms of what they bought, but the bottom line was whenever they worked for the employer, they had to wear the clothing that you were able to buy.

Scott: Sold in the shop.

Iceland and the voluntary Christmas savings scheme

Seamus: Yeah, that was sold at the time. The most recent one that has come along, and I suppose . . . look, I have a bit of sympathy here with Iceland. The most recent one is that Iceland Foods, they've had their HMRC inspection, and as a result of their Christmas savings scheme, the Revenue have said that the business has been underpaying staff, approximately £3.5 million per year over a six-year period as well as they're looking at back pay of £21 million.

And the background of this is quite interesting because I know a lot of employers have these sorts of schemes whereby there's a deduction made voluntarily, the employee completes a form and says, "I would like you to deduct monies from my salary and put it away for me in a savings account." The employee can . . . I'm stressing that the employer does that voluntarily, the employer doesn't require them to do it. And the employer then puts the money into an account. Now, interestingly, it seemed to be one of the issues that HMRC was that this was an Iceland account that the money went into. And the two factors were, number one, Iceland deducted it, and second of all, that it went into an Iceland account.

But this was money that was taken almost by request by employees, as a savings, and the money would have been typically withdrawn around Christmas time. And HMRC have come back to say that that's a breach of the national minimum wage. Now, that to me seems very harsh and a little bit draconian. And no surprise now, Sir Malcolm Waller, he's the founder of Iceland, he is somewhat enraged by this. And he's talked about the fact that this was also almost a supporting mechanism for employees in terms of them saving for Christmas and things like that. And he has, funny enough, set up this Campaign for Common Sense when it comes to revenue, looking at these sort of deductions.

And what he said was, he said, there was no obligation to join this scheme or to spend the proceeds even at Iceland. It wasn't that you had to spend the money there. You could take the money out at any time you wanted. And from that point of view, it does seem a little bit harsh.

But they've got hit with a double whammy. They have a second issue, whereby Revenue Customs has said that they want Iceland to refund staff and for shoe purchases that they had to make. Now, the position was that Iceland had said that staff should wear sensible shoes. And the staff that work in the sort of heavy lifting area of it, they're provided with the usual safety boots and all of that. But outside of that they said, "Wear sensible shoes." And Revenue Customs have come back and said that they should make a nominal payment of £20 pounds each to each member of staff about that. So they've been hit twice across the head with it, but it's the way things certainly seem to be moving with HMRC.

In respect of the other deductions that I think that you need to watch out for, a number of years ago I remember attending . . . and I'll always remember, it was Olive Treehouse round in Fountain Street in Belfast with a client. This client worked in hospitality, and hospitality does seem to be one of the industries that are particularly hit with inspections and with penalty notices and with fines that come out of it.

But my client had a number of foreign national workers that worked in the hotel and he had a staff quarters within the hotel where, essentially, where they lived. And he made deductions for lodgings and for food and because they got meals as well, he made those deductions every week from their salary. HMRC looked at that and they considered that as a result of the deductions that they were falling under the national minimum wage at the time.

So I think you should be looking at, really, any deductions that you're making from staff members. Key ones and interesting ones for me are always, again, hospitality industry where maybe salaries are topped up via tips and where the employers are accused of not actually making the full salary. And the other things are the deductions that employers can make for maybe errors or mistakes that are made by employers.

I remember going back to my day, working, taking maybe dud notes or counterfeit notes and the employer saying, "That will be deducted from your salary." Or, you know, if you work in a . . . because some of these companies have breakages whereby if you knock over the £6,000 worth of China cups that have just come into your shop or something along those lines, that again, there's this threat of, "We're going to deduct this from your salary." Classic one is drive-offs at petrol stations where staff have made errors where they shouldn't have started pumps and things like that.

Again, I think you have to look at the contractual provisions of that. But even if there is a contractual right for recovery, you need to go back to what the national minimum wage position is, and if you're paying less than that, Revenue are not going to be happy about it.

What can we expect from a HMRC NMW inspection?

Scott: Okay, thank you very much, Seamus. I see there's a couple of working time questions have come in the chat box. Hopefully we'll get back to those in a moment, but first of all, we had another HMRC question which is actually about the inspections. "We've been informed by HMRC, they're coming in to conduct a national minimum wage inspection. What can we expect and how can we prepare?"

Seamus: Okay, well . . .

Scott: At least they told them.

Seamus: Yeah, well, that's a good heads-up, I mean, to take a frank and honest approach. I've never really had to legally be involved in an inspection that's taking place. That's probably more of what an accountant would do. And certainly . . .

Scott: And you've got good clients, so they . . .

Seamus: Well, they tend to be, although it doesn't be a bad time whenever sometimes clients make errors and you can get some work out of them then. But yeah, I mean, look, the basics are that Revenue Customs have far-ranging powers, and very broad powers, when it comes to carrying out inspections. And they do carry out inspections, as I said previously there, particularly in relation around national minimum wage.

And just to get some figures there, we knew this question was coming and I'd looked at some research on it. And this was figures from 2014, which was five years ago, and certainly things have moved on since then. But over the UK, they conducted 1,450 investigations in 2014. And of those, almost 50% of them, they found that there were errors in relation to payment of the national minimum wage and in 450 of the cases, they issued notices of under payment.

So I'll come to the underpayment in a minute, or the notices of underpayment, but since then what I can tell you is that HMRC have tripled the number of people that they have working for them in order to conduct prosecutions. So you could say this is a good money-making exercise for HMRC, but they will have a position that they have to safeguard and promote the legislation to ensure that people are receiving their entitlements. As I say, they do conduct these investigations. A compliance officer is the officer that will conduct the investigation and they can arrive at your premises at any time in order to do that.

If you're given a notice of an appointment for that to happen, I think that's a good starting point because at least you can try to get . . . make sure your affairs are in order and that's that. But they don't need to give notice. They can arrive at any time. And they don't need to give you any reasons as to why they're doing the inspection, they can just arrive and say, "I want to do an inspection."

They generally do act in response to complaints that they've received. So whether that is a member of staff or, you know, a member of staff has said, "I'm getting paid X amount of pounds," and they've told somebody and somebody else makes a complaint, but they will even inspect if there's an anonymous complaint made as well. I mean, the person doesn't have to provide their name or their details.

Scott: And you mentioned before, hospitality, they often pick various sectors, and will focus in on it. The equivalent down south is WRC. And they were looking at horse racing last year, I think it was. They pick different sectors and say, "We're focusing on you and getting you up to speed." And I think the ones that would maybe have more migrant labour that might be exploited and so on, those would be the kind of things. They've been looking at car washes, I think, recently, the HMRC, and things like that to make sure that people are being paid. Some of those places you're getting £1 an hour and things like that. [inaudible 00:28:28].

Seamus: Yeah, certainly from my experience it tends to be sort of cash-based businesses. And we all know with contactless now, it's a good way for HMRC to investigate and manage, but cash-based businesses are always an issue for them to check. And I suppose they're open to risk particularly within those industries.

But just to give you an idea of the powers that they have, as I said, their powers are very broad, they have various powers, but essentially they can require the employer to produce unexplained records about minimum wage. They can require the supply of further explanation. So if they do an inspection and they're not happy, they can absolutely say to you, "We require explanations here as to where the deficiencies are or where the problems are in respect to minimum wage." They can enter your premises at any time . . . well, any reasonable time, in order to interview you, anyone that works for you, or those that you engage. So you would imagine that the likes of the accountants as well, the bookkeepers, the account admin assistants and things like that, all those people could be interviewed by the officer.

And they can require those individuals to attend for interviews at their premises also, so they can invite you down to their premises, similar to the one I went to at Olive Tree House that time. And they can take away wage records, so despite GDPR and all those sorts of things, they have the power to take those records away and copy them. I think that the legislation does provide that they have to return them back within seven days or something like that, but they can take them away and copy them.

Importantly, it's a criminal offence to obstruct a compliance officer or to neglect to provide them any information. And really importantly, if after the inspection, they believe that there's been a failure to pay at least national minimum wage, they can serve this notice of underpayment. And with that, they can require you to pay a fine and also the monies that have been underpaid back also to the employees. And often that fine can be double what, in fact, the underpayment is. So if your underpayment was 10 grand, your fine could be 20 grand, but the fines are unlimited.

Really key thing is that if there's a notice of underpayment issued, HMRC publish the notice. So it's this idea of naming and shaming. I think we were talking and you were saying that as part of what Legal-Island does, that they will put these . . .

Scott: Yeah, we put it in our five year reviews whenever the name and shame stuff come out. We highlight if there's any Northern Ireland ones for people because, yeah, it's important that people are paid correctly.

Seamus: Yeah, absolutely. And I think in terms of . . . it's really a matter of having your house in order. If you get an announced or an unannounced inspection, they don't mess around. They want the records. And I think certainly if you have a . . . if you're working out of a Sage package or if your accountants are taking care of all of your sort of tax and national insurance deductions and payment of the wages, it should be a very straightforward process. But my impression is that they tend to sort of target those cash-based businesses or those particular industries where they know that there's risks in order to highlight them.

But as we talked about in the previous one, from those sorts of smaller industries and where the hours may be sort of fairly regular, it can move right the way up through to large retailer, restaurateurs, all the big businesses that we come across every day of the week.

Scott: Okay. We've got a question there on the chat box. "In relation to the Working Time Regulations, what is working time and what is not? For example, where an employee has a permanent workplace, but is asked to go to another office in the jurisdiction for the day, is it considered working time from when they leave home to the alternative office? Or is it just considered time travel to work?"

It might depend on the contract, I suppose, and indeed where the location is. So whether it's further away from where they would normally go, because you wouldn't normally count travel to and from work as working time, unless you're in a Tyco situation where you have no fixed place of work.

Seamus: Yeah. So if you are working as an ad hoc delivery driver and you wake up, or the night before you get a message to say, "We need you to be in Newry in the morning at 7:00," if that is your industry and that's what you're doing, then that could very much be your working time itself.

Scott: And the working time would start when you leave the house in circumstance because you've no fixed abode.

Seamus: You've nowhere to go to. You're not going from A to B, so to speak.

Scott: Yeah, but if your office is based in Antrim and they asked you to go to Newry, then you wouldn't necessarily be paid from leaving the house.

Seamus: No.

Scott: And I think that was the issue in Tyco.

Seamus: In Tyco, yeah.

Scott: You don't get paid to go to work. You get paid when you arrive and work.

Seamus: When you arrive at work, yes. So, I mean, it's looking at it and looking at each of the different circumstances, really.

Scott: But certainly, I mean, if somebody had to do an extra two hours either side of the day . . . So yesterday, I went to Dublin to [inaudible 00:33:50] 6:00 in the morning, folks, dreadful, and I didn't get back 'till 7:00. I suppose that, that would count as working time, less time it might take me to get to Antrim and back, had I been going to Antrim that day.

Seamus: Yeah. I mean, you can take a reasonable view of it and look at it across the board. Absolutely. And I mean, a lot of employers do work on the basis to say . . . they might say, "Look, Scott, you've put in the hard graft yesterday, you work a half day today and then go home." A lot of employers do take a view like that.

But again, back to the point that we first started with about record . . .

Scott: Off the record…

Seamus: . . . around recording your time, absolutely.

Holiday leave accrued on sick leave

What is the limit on carryover holiday when someone is returning from sick leave?

Scott: Another question just come in here. "An employee who has been offered long-term sick leave for several years is due to return to work. He has accrued approximately 80 weeks of annual leave, or has he?" Hold on a second, we'll deal with that one. "Can we apply statutory entitlement of 20 days, or must we apply the contractual entitlement of 25 days per annum," which is actually 28 in statute. So where does that lie? There's a limit on what's carried over if someone's sick, though. I think that's one of the . . .

Seamus: Yeah, I mean, it's like I said. And you tend to be, at maybe going back to 18 months or somewhere along the lines of it, and that there's only the statutory entitlement that you're carrying, if it's 20 days, rather than whatever the contract says. So the entitlement itself will only apply to the 20 days' holidays.

Scott: So you'll be looking there, in this situation, probably somewhere in the region of 30 days plus whatever's accrued this year will be the entitlement in that one. But I think that caller there, you maybe want to get in touch with Seamus to discuss the specific or that particular ones.

Seamus: Yeah, but it's good news for that caller in the sense of it's not 80 days.

Scott: Well, it shouldn't be 80 days. That's subject to whatever industrial tribunals in Northern Ireland have taken a slightly different view when it comes to overtime payment. So perhaps you should take some legal advice on that one because it might save you an awful lot of money, caller.

Data Protection and Interview notes

How long should we keep interview notes after the recruitment process?

Let's move on to another question, which is data protection. I see another couple of things coming in on the chat box. "I was on a selection interview training course and was advised that we should be keeping interview notes for up to 12 months. We have been told in the work not to keep notes and have incorporated a score sheet system where we summarise each candidate and the reasons for successful/unsuccessful at interview. Would this be sufficient, or do you recommend keeping each interviewer's notes?"

Seamus: Well, in terms of the first part of the question, where they say that they've been advised to keep the interview notes for up to 12 months, I think guidance tends to be that it's 6 to 12 months. Obviously, look, out of any recruitment process, there's the potential of an employment tribunal claim. So you should be sort of keeping that within the time frames as to what might happen. Six to 12 months tends to be the guidelines in relation to it.

As regards this aspect of not retaining the notes but maybe putting together a pro forma sheet outside of the notes then destroying the notes, and I am uneasy with that, I have to say. Ultimately, if you end up with a claim situation, it could look problematic and look a little bit suspicious as to why you don't have the notes. And even if you say, "Well, I was told to destroy the notes," there might be a question as to why we are told to destroy the notes. And it just raises that suspicion of, you know, the notes form part of the process. They're the record of what of what the panel or what the individual person maybe found impressive or the responses that were given.

And for me, it just tinges a process whenever the notes are not available. It automatically puts the suspicious antenna up and you're thinking to yourself, "Well, what's the problem here?" If you have the notes and the notes are clear and you provide them, it answers the questions that are being asked. If you don't have the notes, it allows the whole content to be filled by . . . there's a problem here, that the notes aren't there.

But just in general under GDPR, just when you're coming to recruitment, the advice very much is that whenever you're setting up a recruitment process, that you should be issuing an information notice or a privacy notice or processing notice, whatever you like to call it, but the notice must provide the applicant with certain information. And that should be what the purpose for which the data will be processed, the legal basis for processing, and the period of retention. And there should be a policy and procedure in place, set out how long the recruitment data will be retained. That should be clear from the outset.

And the employer is going to need to retain some candidate data in relation to potential claims. That doesn't mean it needs to retain everything. But you destroy what's not going to be needed, but my view would be that you're not leaving yourself in a problematic situation. Now if there is a claim, that you don't have the backup, you don't have your notes, you don't have your order trail, you don't have the paperwork to establish what exactly went on, it leaves you in a difficult position.

Sometimes employers do retain information of unsuccessful candidates for sort of future recruitment exercises. And that's okay, provided that you're notifying the applicants that you're doing that and that they're either given the ability to consent or to object to that. And if they object, then you're obviously having to destroy. But the bottom line is, you're retaining the minimum data required for the retention period that you've set out, and that should be it. But ultimately, answer to the question is I would be keeping the notes. I don't understand why you'd be destroying them.

Scott: Yeah, there's nothing wrong with having a summary of conclusions, but you want to keep the notes to back them up. I'm sure the Equality Commission, if they came and there'd been a number of complaints in an organisation and they hadn't kept any notes, then they would be arguing that the tribunal should infer that there's been discrimination taking place. And of course, there's no limit on the awards in discrimination bans that we discussed last week, or last month, have just gone up.

Just on the chat box there, to the person who says, "Why don't the questions appear in this box," they appear at the box at my end here. So we can read all the questions out but you don't see all the other questions. They're all anonymised at our end. But if you do have any questions, send them in. I'm not sure we'll have time to deal with any more this week, bar one, which is kind of related to data protection but it's also to do with disciplinary warnings.

Expired Disciplinary Warnings

Should expired disciplinary warnings be completely erased?

So, Seamus, should expired disciplinary warnings be completely erased and not used, as case law has suggested, for reasons other than disciplinary purposes? Or could we use them for example for redundancy selection?

Seamus: Again, interesting question and I'll keep this brief in light of our timing here. And again, GDPR factors into this as well, but the main piece of case law really that you're looking at, it's Airbus UK Limited versus Webb, situation where a worker was given a final written warning. It expired. Three weeks later, there was an incident, essentially all staff were caught watching TV . . .

Scott: Watching TV.

Seamus: . . . in a room. All the staff were given final written warnings except Mr. Webb, who was dismissed because they said he had a final written warning and even though it had expired, the fact that it expired just by three weeks, they wanted to include it. And the EAT in England made findings in relation to that, and essentially they gave some guidance. I think ultimately Mr. Webb was . . .

Scott: He was dismissed, wasn't he?

Seamus: He was dismissed, but they gave some guidance in relation to it. And essentially what they were saying is, if your policy says that it's 12 months, at the end of the 12 months, the warning is done. Now, whether or not you should be erasing warnings that are on file, if they're expired, in my view, they're expired. If it's by one day, they're expired. And I think that you would be in difficulties with the tribunal in that respect, always conscious of the fact that general guidance is that if it's a sort of fresh-written warning and things like that, you're looking at six months for it. More serious offences, you're looking maybe at 12 months or longer.

And the EAT did set out in this case that there were circumstances where an employer could keep it under review, depending on the seriousness of it. We just wanted to flag up in terms of removing the records and destroying them from the file. Ultimately, I think that that is the right thing to do but you can't timetable a redundancy and you don't know when that's going to happen, but just to flag it up, the . . . regulations provide that you have to keep the documentation for two years. So you're providing documentation under your consultation process, that anything that you've had for two years. So I think there's a right within the legislation there to retain the documentation for two years, but after that, I think that you should be moving to remove it. And I think it's a better position that you do destroy it, because there can be the tendency then to look at it and it does . . .

Scott: Take it into account.

Seamus: . . . it does colour your judgment, yes.

Scott: I remember when I first started out in HR, I had to write disciplinary policy for the Council and the management didn't want anything removed. And so I ended up coming up with an idea of where it would be disregarded for disciplinary purposes for a period and then not expunged for longer period. I can't even remember what it was, but it was and I agree, it's live, it's disregarded, and then it's expunged.

Seamus: Yeah.

Scott: Time's up, I'm afraid, folks. It flies when you're having fun. So thank you very much to Seamus McGranaghan from O'Reilly Stewart. Thank you very much to you for listening and to for working all the technical stuff here. Seamus and I and Rolanda will be back on July the 5th. Hopefully you'll tune in, tell your friends. The more the merrier.