Employees affected by travel chaos
April 19, 2010
It’s only the middle of April, and already British businesses have been affected by a second natural occurrence that has stopped countless employees from being able to work. As with the chaos caused by the heavy snow storms in February, many people are unable to get to work as they are stranded across the globe following the volcanic eruption in Iceland.
So what should employers do in terms of pay if they have employees that cannot return to work after their holidays? Legal advice is that an employee has a responsibility to get to work, and if they cannot, for whatever reason, then they will have to take annual leave out of their entitlement, or unpaid leave. This may seem quite harsh but considering many companies will have to pay overtime or will have another kind of financial penalty from the loss of staff attending work, it is reasonable to take this line and to do differently could set a precedent that could be difficult to go back on in the future.
Some employees may be able to claim for the losses to their pay through their travel insurance, but there seems to be a grey area at the moment over whether the ‘act of God’ clause will lead to many insurers not paying out for stranded travellers’ additional hotel costs, never mind loss of earnings.
Alternative actions could be to see whether employees can have access to work networks whilst stuck abroad (unlikely but possible in some cases) in order for them to be able to work, or if they could make the time up at weekends or evenings when they are back, to avoid losing pay or holidays.
The right to have legal representation at disciplinary?
April 14, 2010
A recent case (R v the Governers of X school and others) highlighted very specific occasions where an employee may have the right to be represented by a legal professional at an employer’s disciplinary hearing.
The case concerned G (represented by R), a teaching assistant at X school who was dismissed for kissing a 15 year old boy after a disciplinary hearing was held. In normal circumstances an employee is only allowed to be accompanied by a colleague or Trade Union official at a disciplinary hearing, however G felt that the school’s failure to allow them legal representation contravened their right to a fair trial under the European Convention on Human Rights (ECHR).
The case went through several stages and ended up at the Court of Appeal, where it was held that G’s right to a fair trial had been breached, and they should have been allowed legal representation. The reason for this is that the outcome of the trial had a direct effect on G’s ability to continue practicing their profession. The school had to give information to the Independent Safeguarding Authority (ISA) which decides whether to add people to a register of those who are unable to work with children. Because the outcome of the disciplinary would inevitably affect the ISA’s decision to add G to this register, it therefore had a direct effect on G’s ability to practice their profession, and so legal representation should have been allowed.
This is a rare case and legal representation would not be allowed in most disciplinary hearings; the right only applies to public sector professionals and is only relevant if the outcome could affect the individual’s future career. However it is worth remembering for future reference if such an instance may come up. If this does happen, it would always be advisable to seek legal advice before agreeing or rejecting a request for legal representation in a disciplinary hearing.
The ‘fit note’ has arrived
April 12, 2010
This month sees the arrival of long-debated new legislation and HR practice around employee sickness absence. The ‘fit note’ has replaced the previous ‘sick note’ from 6th April 2010.
The difference in this new note is that instead of stating that the employee is simply unfit for work full stop, the GP could instead indicate that the employee ‘may be fit for work’, meaning that he/she could be able to carry out some tasks, and with adjustments made by the employer, could attend work.
Adjustments that may be recommended include changes to working hours, different tasks or returning to work over a phased period. It is then up to the employer and employee to decide if this is reasonable. If the employer is not able to make the recommended adjustments, then this should be reviewed again after an agreed period of time.
The employee may decide that they are unable to return to work, even with the GP’s recommendations. The employer will have to meet and discuss this with the employee to see if a solution can be found. The employer may need to get further advice from occupational health.
GPs will still be able to declare an employee ‘unfit for work’ if they cannot recommend any adjustments that will enable the employee to return to work at that time.
Whilst many employers see this change as a really positive step, some are sceptical about how effective this will be in helping to manage employee absence, as many GPs are not trained in occupational health and may suggest adjustments that are not viable in most businesses. It will then be up to employers to demonstrate why the recommendations are not reasonable.