UK: Employment Law: Common Conundrums

Last Updated: 24 January 2008
Article by Linky Trott
Sickness Absences

I have a number of employees who have short term intermittent sickness absence on a Friday before a bank holiday Monday etc. At what point can I or should I start addressing this as a disciplinary matter?

There are a number of different formulations for identifying short term intermittent sickness absence, the most common of which is the 'Bradford Score'. This is designed to highlight and manage frequent short term absences and is based on a calculation over a rolling period of the number of times a person is absent multiplied by the number of times a person is absent multiplied by the total number of days of absence. An example would be an employee who was off in January for two days, in February for one day and in March for 6 days. The total number of absences is 3 and the total number of days of absence is 9. Their Bradford score therefore would be 3 x 3 x 10 = 90.

Each organisation can set its own 'trigger' points on the Bradford scale to identify at which point formal action is taken to manage this absence and if necessary to instigate disciplinary proceedings. This could be set by reference to a review of a previous year's sickness absence records for each employee on the basis of the Bradford scale and setting the organisations' 'average' point.

Depending upon the size of the organisation, a more informal approach can be adopted such as simply working out the average of your workforce's sickness and using that average as a benchmark against which employees are monitored. It is also to be recommended in this circumstance to look for and identify patterns such as a day of sickness immediately following or preceding a weekend or bank holiday.

The important thing to remember is to set an average and a 'trigger' point against which all employees are monitored equally.

Holiday Entitlement

I have heard the minimum entitlement to holiday is or has gone up?What is the current position, how does it affect part time workers and what is the best way to calculate holiday for part timers who may usually work Mondays and would therefore get the benefit of more bank holidays?

As from 1 October 2007 all workers (not just employees) are entitled to 4.8 weeks holiday a year including bank holidays. For a full time employee working Monday to Friday this equates to 24 days holiday a year including bank holidays.

This is due to rise to 5.6 weeks a year including bank holidays as from 1 April 2009. That would equate to 28 days holiday a year including bank holidays for full time staff.

It is a common misconception that employees are automatically entitled to take bank holidays off. The fact is however that most employers do shut over bank holidays and therefore it is traditional that most employees do not work over bank holidays. However, the employer so wishes.

The easiest way to address holiday for part time workers is to articulate holiday entitlement for all employees on the basis of the number of days holiday including bank holidays and to provide that they are not required to work bank holidays but that for each bank holiday taken a day will be deducted from their holiday entitlement.

For a full time employee therefore who would usually get 20 days holiday plus bank holidays, they would be told that they get 28 days holiday including bank holidays and that they will not be required to work bank holidays but that bank holidays off will be deducted from their holiday entitlement. On the face of it, this makes no difference for full timers. The difference however is that it makes it easy and fairer to pro rata holidays for part timers. Under this system, if you have a part timer who works Monday, Wednesday and Friday, if they are told that they are entitled to pro rata entitlement of 12 days holiday (3/5th of the 20) plus bank holidays, because they usually work on Mondays and Fridays when bank holidays fall, they could end up having more pro rata holiday (12 days plus 6 or 7 Mondays and Fridays which are bank holidays). If however they are told that they are entitled to 3/5th of 28 days inclusive of bank holidays and that if they take a bank holiday it will be from their holiday entitlement, they will always be entitled to the same number of days whenever the bank holidays fall ie: 17 days.

In summary, articulate holidays by the number of days including bank holidays, tell employees that they are not required to work bank holidays but that it will be deducted from their holiday entitlement and then pro rata all part time employees entitlement by reference to the number of days they work a week.

Stress And Depression

We have an employee who has been off work for 6 months with stress and depression. What are the main areas to consider?

The management of long term sickness absence can be problematic. Lack of capability on the grounds of ill health however can be a fair reason for a dismissal as long as a fair procedure has been adopted in treating that reason as a reason for the dismissal.

The complication with long term sickness absences is the application of the Disability Discrimination Act 1995 and if the employee can establish that they have a physical or mental impairment that substantially affects their day to day activities such as walking, talking, concentrating etc (not just their work activities such as operating technical machinery) which has lasted or is likely to last for 12 months or more, they are likely to be able to establish that they are suffering from a disability. In those circumstances, there is an extra obligation on the employer to consider all reasonable adjustments that could be made to the disabled employees working conditions or arrangements (moving department, working part time or different hours) to avoid an accusation of disability discrimination on dismissal. If there are no reasonable adjustments that can be made then an employer can dismiss and avoid claims for unfair dismissal and/or disability discrimination.

One issue that should not be overlooked however, is whether or not an employee has the benefit of a permanent health insurance policy provided by the employer. If so, dismissing the employee (whether incapable, disabled or not), depending on the wording of the policy, is likely to deprive the employee from a right to claim under the policy as such policies usually require the employee to continue to be employed. A dismissal in those circumstances therefore could expose the company to a substantial claim for breach of contract and therefore no dismissal should be made until the options under a PHI policy have been fully explored.

Expenses Discrepancy

An employee has resigned and they are due to be paid their final salary instalment this month.We have discovered however that some of their expenses on the company credit card were for personal expenditure. Can we deduct that sum from their final salary?

There is a technical answer and a practical answer. Technically, section 13 of the Employment Rights Act 1996 provides that it amounts to an unlawful deduction of wages to simply deduct the personal expenses from his salary where there is no prior written agreement from the employee consenting to such deductions. The fact remains however that the personal expenses are owed to the company by the employee and therefore employer against the employee for recovery of those sums. Accordingly parties usually take a pragmatic approach and agree that the deductions can be made.

Note: section 13 would not apply to prevent deductions in some circumstances including an employer recovering an accidental overpayment of wages or overpayment of business expenses.

Statutary Grievance Procedure

Which of these is a grievance?

  • A letter from an employee informing her line manager that she is raising a grievance about the company's failure to pay her a bonus;
  • An e-mail from a female employee to her indirect line manager complaining about not getting a pay rise because she was off last year having a baby;
  • A letter of resignation complaining of bullying; or
  • A letter from a solicitor acting for an employee who was dismissed for gross misconduct and who says that his dismissal was unfair.

The answer is that all of them are technically grievances and therefore all of them should be dealt with under the statutory grievance procedure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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