Fit Notes – How much difference will they really make?
The old system of sick notes changed in April, but how much difference will the move to “Fit Notes” really make in most cases.
The essential difference is that a doctor may now suggest ways in which an employee may be helped to return to work, possibly by adopting one of the following:-
- A phased return to work
- Changed hours of work
- Amended duties
- Workplace adaptations
It is important to note that the recommendations are not binding on an employer, though you should be particularly careful in the case of an employee with a disability as the Disability Discrimination Act imposes certain obligations on an employer and these have not changed.
The Department for Work & Pensions (DWP) has produced a 24 page guide for employers which you can view by Googling “fit notes”. The main points are:-
- The employee may be able to return to work/normal duties befor the end of the end of the advice period without needing to see their doctor again
Removing heavy lifting from someone with a back injury or reducing the stressful elements of a job are likely to be practicable in a limited number of cases. - If the doctor’s suggestions are not practicable, you treat the note as if the employee is unfit for work. You pay SSP.
- If you do allow someone to return to work on amended duties you may need to carry out a risk assessment to ensure that you are not incurring an unacceptable insurance risk.
The above is a summary of the key points.
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Bank Holidays – Questions Answered
There are several questions that are asked regularly. Here, we try to answer most of them, especially the ones that concern part time workers or those employers for whom Bank Holidays are normal working days.
1. Can employees be required to work on Bank Holidays?
As there is no statutory to take Bank Holidays everything depends on the terms in the contract. For some businesses, such as care homes, bank holidays are normal working days and are stated as such in the contract.
2. Are employees who are required to work on Bank Holidays entitled to additional pay &/or time off in lieu?
There is no statutory entitlement to either, so everything depends on the terms of the employment contract. However, all employees are entitled to at least 5.6 weeks of annual holiday based on their normal or average hours of work. For a 5 day week worker this equates to 20 days plus the 8 bank holidays. For a part timer working 15 hours per week, it amounts to 5.6 X 15 = 84 hours per year of paid holiday. Think of it as holihours rather than holidays.
3. Is a part time or shift worker entitled to an additional day’s holiday if not scheduled to work on the bank holiday ?
No, depending on the wording of the employment contract, provided that you express the holiday entitlement in terms of 5.6 weeks there will not be an issue of treating part time or shift workers any less favourably than conventional full time day workers.
4. Can employees be required to take leave on a Bank Holiday ?
Yes, where the employment contract provides for it. Even if it does not, The Working Time Regulations provide that an employer can give notice to take leave on particular dates provided that he gives notice twice the length of the holiday period he requires the employee to take.
5. Are employees entitled to time off for Bank Holidays in addition to the statutory minimum annual leave ?
No, provided they are given the minimum 5.6 weeks there is no additional bank holiday entitlement – unless the contract provides for it.
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Giving Evidence at an Employment Tribunal
Everyone hopes that they will never have to appear at an employment tribunal, but however careful you are & however much you follow correct procedures, it can happen to you.
Below we give some helpful tips that should help you should you have to give evidence on your own behalf or for someone else. We have seen people become so nervous when they are giving evidence that they :-
- Lose the ability to think
- Don’t know what they are saying – or where they are
- Speak at great speed – because they want to get it over with don’t they
Tribunal chairmen (or employment judges as they are now called) are used to these problems and will try to put you at ease as far as the situation makes this possible.
So try to remember these tips if it ever happens to you –
1. Expect to be kept waiting and have some reading matter with you – even if it is only your witness statement & the tribunal bundle
2. After taking the oath (or affirming that you will tell the truth) take your time & some slow, deep breaths. Giving evidence is just like public speaking only a bit worse because you are doubly nervous.
3. Listen carefully to each question and decide what you are going to say – before you start speaking! (Many people fall down on this big time)
4. My advice to tribunal witnesses is to always remember the KISS principle (Keep It Short & Simple) Another way of saying that is “Answer the question and stop” if you keep talking you are likely to dig a hole for yourself. This is why the questioner will often look at you after you have answered as if they expect you to say more. DON’T.
5. Take time to understand the question before you start to speak, but not so long that it seems you don’t know what to say. If the question is so convoluted that you don’t understand it, say so & ask for it to be rephrased. This is much better than giving the wrong answer.
6. Try to face the tribunal panel when giving your answer. Also, watch the judge’s pen & make yourself slow down so that he or she can make notes as you speak. If the pen begins to smoke, you are definitely going too fast.
7. If you need to refer to a document in the bundle, say so and take time to find it & refer to it as necessary. There is no merit in relying on memory and being wrong.
8. Understand the difference between closed questions & open ones. A closed question needs only a yes or no answer, whilst an open one requires you to give an explanation or an opinion.
9. Wherever it is possible to do so give a direct answer to the question. If you waffle it may seem as if you are being evasive & this will count against you when the tribunal panel decide whose evidence they prefer.
10. In many cases the decision (whether you win or lose) comes down to whose evidence is preferred. Try to be helpful to the panel. Go along to a tribunal hearing before your own if you can (they are open to the public) as this will give an understanding of what to expect on the day and so help calm those nerves.
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A useful decision from the EAT (Employment Appeal Tribunal)
Should you have staff who fail to take their holiday until the end of your company holiday year, you might well find this decision of the EAT useful. Bear in mind that decisions of the EAT are binding on employment tribunals.
In Lyons v Mitie Security the EAT held that the right to statutory leave is not inalienable. So what does that mean in plain English?
Well, if you have a notice requirement that you have to be given a month’s notice of holiday requests of a week or more & an employee (or several employees) request time in the last month of the holiday year having failed to give that notice, you as employer may say “No”. What is more, you would not be obliged to let them carry the unused leave over to the following holiday year.
All in all, a useful decision – but one to be followed very carefully.
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Effective Recruitment
So many companies seem to regard recruitment as a game of chance in which they might be lucky, but if not, the new recruit will go within the Probationary Period. This is a costly way to do things and means the chances of recruiting the "right" candidate are greatly reduced.
It still surprises me that so many companies do not take up references; do not ask to see the qualifications that candidates claim to have or even to see the original driving licence of someone who will be driving on company business.
If you want to learn how to improve your chances of recruiting successfully, I will be running a full day seminar on Friday 23rd April in collaboration with Robin Hills who has considerable experience of the proccess, including the use of psychometric testing.
Between us we will cover:-
- An overview of the recruitment process
- Job Descriptions and Candidate Profiles
- Reviewing CV's
- Interview preparation
- Types of Question - Open, Closed, Silent, Reflective, Follow-on, Non-verbal, Leading
- Interviews - assessing competencies & attitudes
- Avoiding discrimination - Disability, Sex, Sexual Orientation, Race, Age, Religion or Belief
- Other legal issues - Data Protection, The importance of consistency and records, The right to work in the UK.
The seminar will be limited in numbers to ensure audience involvement and will cost £295.00 per person plus VAT. To register your interest, without commitment at this stage, e-mail your contact details to emplaw@btconnect.com.
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Pregnant Workers and Risk Assessments
The EAT (Employment Appeal Tribunal) has recently given useful guidance on the circumstances under which an employer is under an obligation to conduct a risk assessment for a pregnant worker.
The EAT held that for an employer to be under an obligation to conduct a risk assessment these preconditions must be met:-
- The employee notifies the employer in writing that she is pregnant;
- The work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby;
- The risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.
Bear in mind however that if the conditions are met and a risk assessment is not carried out, the employer will be guilty of discrimination.
In practical terms, this guidance suggests that a risk assessment may not be needed for a clerical worker who is not exposed to "chemical or biological agents". On the other hand, for someone carrying out physically demanding work a risk assessment should be carried out.
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Overtime Working
The TUC has used official statistics as the basis for a claim that in 2009 some five million workers gave away over £27 billion pounds in unpaid overtime.
A number of my clients have implemented short time working during the recession as a perfectly legitimate means of avoiding compulsory redundancies. None of them has tried to extend that to requiring unpaid overtime.
Firstly, whether an employer can require an employee to work overtime is a matter of contract. Unless the contract says something to the effect that overtime working when required, is a condition of employment, then overtime working will be voluntary.
The second distinction is typically between those who are paid on an hourly basis - who are usually paid for overtime. Those who are paid a salary are often told that they are required to work such hours as are required for the proper performance of their duties. This is particularly the case for those in managerial positions.
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Time off for Training
Whilst the headlines refer to a Right to Training, the reality is actually much more mundane. As with flexible working, there is simply a right to request time off for training and there are ten grounds on which an employer can legitimately refuse such a request.
The right to request time off for training will come into effect on 6 April 2010 for organisations with 250 or more employees. The right will apply to all organisations with efect from 6 April 2011. this assumes that the outcome of a General Election will not change matters!!
Fuller details will appear on this website very shortly.
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Winter Weather
A client has asked the question that will be on many minds at the moment, namely does he have to pay staff who cannot get to work.
The answer depends very much on the employer's stance in the face of the current blocked roads. If the employer keeps the place of work open then he is not obliged to pay employees who are simply unable to get to work. If he chooses to pay them then that is his choice to make.
However, if the employer decides to close it will be open to any (and all) employee(s) to argue that they would have found a way to get to work and the employer must pay them because he, not the weather, prevented them from working.
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TUPE & Consultation
In the event of a TUPE transfer (TUPE = Transfer of Undertakings, Protection of Employment Regulations) the employer is obliged to inform affected employees (of the proposed transfer) even though no changes whatsoever are contemplated.
Failure to do so will leave the employer liable to a Protective Award of up to 13 weeks pay per affected employee.
As always, it is better and cheaper to get it right.
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Associative Discrimination
This may seem unlikely, but take note. Disability Discrimination may take place even though the employee is not him/her self disabled. If the employee is e.g. selected for redundancy in part because s/he cares for someone who is disabled then that is disability discrimination against the employee.
I have very recently advised a senior person who was made "redundant" in just such circumstances. In case you are wondering, he was not employed by one of my clients!
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Employment Status
A Court of Appeal decision back in October last year dealt (yet again) with the question of employment status. In the case under consideration the "workers" were required to notify the company if they were not going to turn up for work. In essence, it was considered that such a requirement was "wholly inconsistent" with their alleged self employed status.
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Employment Tribunal Statistics
I usually find that statistics are a great cure for insomnia, but you might find some of these interesting. They are from the report for the year 1 April 2008 to 31 March 2009.
Employment Tribunal awards for cases with various jurisdictions were as below:-
Unfair Dismissal - 84,005 4269 7959
Race Discrimination - 1,353,432 5172 32,115
Sex Discrimination - 113,106 7000 11,025
Disability Discrimination - 388,612 7226 27,235
Age Discrimination - 90,031 3000 8,869
The average number of jurisdictions per claim rose very slightly from 1.7 to 1.8. What this means in simple terms is people claiming for Breach of Contract in addition to Unfair Dismissal for example.
If you have not issued contracts to any staff, do remember that this failure will lead to an extra award of between two and four weeks’ pay.
People often ask if they can claim costs or if costs are likely to be awarded against them. Costs are rarely awarded, and usually where one party or the other has been totally unreasonable in some way. For the year in question costs were awarded in only 367 cases – 102 to Claimant and 265 to Respondents (employers).
The figures quoted above clearly do not include the cost of representation at employment tribunal; such costs being payable whether you win or lose. Insurance is available against these costs and is remarkably affordable. Please contact me for further details.
If you would like me to forward a copy of the full report, please ask me to do so by e-mail. You may also want to consider whether you should get out more.
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Short time working - are you making these mistakes?
Important information to protect you from action...
In conversation with an employment solicitor a couple of months ago he happened to mention that he had not included lay off or short time working clauses in employment contracts for the past decade because they had not been needed. This seems rather like saying that you don’t need car insurance until you have an accident.
There is no right to use lay off or short time working unless you have a clause in the contract to this effect. Whilst you still need to consult with staff, this clause gives you a tremendous advantage.
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Dismissal and Pregnant Employees
Understand how to handle underperformance...
Employers often think, mistakenly, that if an employee is pregnant they cannot be disciplined or dismissed. The reality is that it is simply automatically unfair to dismiss an employee for a reason connected with their pregnancy.
As dismissal of a pregnant employee is likely to result in claims of both unfair dismissal and sex discrimination, it is really important to have a paper trail that shows the true reason for dismissal, i.e. conduct or capability.
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News: Tips and the National Minimum Wage
A reminder that new rules came into force on the 1st October making it illegal for employers to use tips to make up pay to the level of the national minimum wage.
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News: Default Retirement Age
The government has now asked businesses and individuals to submit their views on the default retirement age (currently 65) and the impact of raising or removing it.
We know that employers have sometimes tolerated poor performance or conduct on the grounds that an employee was approaching retirement age. It does seem highly likely though that the default retirement age will be either raised or removed altogether so we would suggest that you look closely if you have any performance issues involving older employees.
Bear in mind that you need to give at least six months notice of your intention to retire someone on their reaching age 65.
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News: Long Term Sickness Absence
It has always been Employment Practice & Laws practice to advise prompt action in dealing with staff on prolonged sickness absence, whilst making appropriate allowance in situations where there is a genuine disability.
In recent weeks however two Employment Practice & Law cases have made it even more desirable (from the employer’s viewpoint) to act swiftly. Until now, some employers have taken the stance that they could leave a sick employee “on the books” indefinitely because they did not cost anything. This came from the provisions of the Working Time Regulations which prevented holiday accrued, but not used at the end of the holiday year from being carried forward. That is no longer the case however.
The first Employment Practice & Law case to have changed the situation is Stringer & Others v HM Revenue & Customs – a case which was referred to the European Court of Justice (ECJ).
THE ECJ in dealing with Stringer and a German case it was considering at the same time has held “that the right to paid annual leave continues to accrue during sick leave and, on termination of the employment relationship, a worker who has been on sick leave and unable to take paid annual leave is entitled to a payment in lieu.”
The Sting in the Tail is that workers on long term sick leave will be able to bring a claim for lost holiday pay under the provisions of the Employment Rights Act 1996
rather than under the Working Time Regulations – thus allowing them to claim outstanding holiday pay as a breach of contract and to go back up to six years.
The second case, again from the ECJ, is Pereda v Madrid Movilidad SA. The ECJ ruled that “workers who fall sick while on holiday should be allowed to reschedule their leave, even if it meant within the next leave year.”
The significance of the second Employment Practice & Law case is that it potentially opens the door for those who might try to abuse the system. It is easy to envisage a situation in which a long foreign holiday is booked and the employee subsequently claims that he/she was ill for a lengthy part of the holiday – and wants to take again that part of the holiday during which he/she was sick.
In the face of these developments Employment Practice & Law will be looking at revision of sickness notification procedures as case law develops further. For advise or services relating to this news article please contact Employment Practice & Law.
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News: Train to Gain Funding
Did you know that there is a Government funded scheme which can provide considerable financial support towards the cost of Leadership and Management Development?
For businesses with between five and 249 employees, funding can be provided for up to seven managers. The scheme allows each manager to receive up to £1,500 worth of training, development and coaching in various areas including HR Management .
Of each £1,500 the first £500 is paid from the scheme. A further amount up to £500 is then available on a matched basis i.e. pound for pound. This means that with 7 managers in the scheme, the company can receive £10,500 worth of training at a cost to the company of only £,500.
If you are interested in the scheme, please contact Employment Practice and Law via our Contact Form or call 05601155920 and we will be happy to provide further details.
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News: Disciplinary procedure changes from 6 April 2009
On 6 April 2009, the statutory dismissal and disciplinary procedures (SDDPs) will be repealed in England, Wales and Scotland. This will mean that you no longer have to follow them when you take disciplinary action against an employee within your business.
If you have to deal with a disciplinary issue or dismissal to which the statutory procedures no longer apply, you will still have to follow a fair and reasonable procedure.
It will be expected of your business to follow the good-practice advice set out in the revised Acas code of practice on disciplinary and grievance procedures. If you fail to do so and the issue ends up at an employment tribunal, the tribunal could increase the employee's compensation by up to 25 per cent.
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News: Employment Legislation changes
In February the limit on the maximum compensatory award for unfair dismissal was increased to £63,000. A number of other limits were also raised such as the statutory ceiling on a week’s pay for redundancy payment purposes, which went up to £330 per week. Do remember that there is no upper limit on awards which are made in respect of discrimination claims.
If you have any concerns upon how you stand regarding your status within the law please call Employment Practice and Law on 05601155920 or complete our Contact Form as we can offer you an initial FREE consultation