Questions and Answers

Date:12/1/2011 Posted by: J.N. Ref: #10

I suspended an employee this week and have written to him asking him to attend a disciplinary hearing next week. Today I have received from him a doctors note declaring him 'not fit for work' for four weeks with 'depression'. Does being signed off as sick make him automatically unavailable to attend the hearing?
Fitness to attend work and fitness to attend for a disciplinary interview are not the same thing and can be considered separately - an employee may be unfit for work but fit to engage with a management process.

However to assess this you would really need to ask your employee to attend for an interview with an Occupational Health practitioner if you have access to one. They are qualified to assess whether the employee would be able to properly engage with the hearing and whether their 'depression' would potentially be exacerbated by attending. Often the OH practitioner can contact the employees GP and discuss the possibility that the employee's symptoms will be likely to worsen if the case remains unresolved. In this way sometimes the GP can be persuaded to support the employee attending the hearing. You would need to be guided by the OH report.

If you cannot arrange a report from an Occupational Health practitioner, then you would not be in a position to assess the risk to the employees psychological health of insisting they attend the hearing. This could be costly if at some future point they make a claim against you for psychiatric injury caused by the stress of the procedure (although recent case law has tended to favour the employer in this regard e.g. Johnson vs Unisys).

In my view then your course of action is as follows:
1. Seek guidance from an Occupational Health Practitioner as above
2. If you are unable to do so, or it takes too long, then write to your employee rescheduling the disciplinary hearing for the date of his return to work.
3. If he submits another GP certificate after his current one, you can try writing to him/her suggesting that it would be to everyone's benefit for the hearing to go ahead as it was obviously causing him/her ongoing distress. You can offer them the option of having the hearing away from the office and the right to be accompanied by a work colleague or trade union representative (you could if you so wish extend this to allow a friend / spouse to also attend for support only). You should set a provisional date and invite them to confirm attendance.
4. At the end of the day, if they continue to submit GP certificates and refuse to come to the disciplinary hearing, it would be reasonable to then look at terminating their employment on the grounds of capability (see here for the fair reasons to dismiss).
Date:10/1/2011 Posted by: Kevin Stephenson Ref: #9
This morning a member of our staff reported for work wearing a police tagging device! He is very blasé about this and has been showing his work colleagues - the device is secured round his left ankle. He has not told his supervisor officially about this, however it is not stopping him from attending or completing his work. Management are uncomfortable about this situation and we would really like to get rid of him. What would you advise that we do?
Oh dear - you are in a very unusual situation indeed. Well firstly as he has made it public knowledge that he has been tagged, and as this is normally done as an alternative to incarceration, it would be perfectly reasonable as his employer to satisfy yourselves that what he has done will not have any effect on his work, or his relationship with you as his employer. You should therefore arrange to meet with him quickly to investigate the situation; he will be entitled to be accompanied by a work colleague or trade union representative if he so wishes.

At this meeting you will be asking him what he has done to merit being tagged, in order to assess what impact if any this will have on your employment relationship with him. You will then have to come to a view as to whether his crime has a direct impact on his employment with you, and whether you have lost confidence in him as your employee to fulfil his employment contract with you.

If you feel his situation has no impact on his ability to fulfil his contract of employment and you are happy to have him as your employee, you need do no more. However if the crime he has committed has a material impact on his job role e.g. he has been convicted of a crime related to fraud and he works in a position of trust in your company finance department, then you may wish to consider whether this can continue.

In these circumstances, you should inform him that you wish to meet him again to further consider his position under your Company's disciplinary procedure and outline your concerns to him in writing setting up the hearing and again giving him the right to be represented.

At the hearing you need to take a balanced and reasonable view as to whether what he has done undermines your trust in him to do his substantive job. If so you should consider whether there are other jobs in your organisation he could undertake commensurate with your revised trust in him. If there is not it may be appropriate to bring his contract of employment with you to an end. In terms of fair reasons for dismissal this would relate to any other 'substantial reason' (see answer #2). The acid test at an Employment Tribunal would be how reasonably you have acted under the circumstances.
Date: 6/1/2011 Posted by: Allison Robbins Ref:#8
We have seen in  the media that the flu epidemic appears to be happening again this year, and we want to be prepared for it. We therefore want to develop a clear Company policy on how we should deal with staffing issues. Could you please advise on the key points we should be incorporating into our policy. Thanks.
It is an excellent idea to be proactive in this respect and have a clear policy on swine flu or other similar flu-type epidemics. We would recommend you make reference to the following points (and associated advice) in your policy:

1. Reporting sickness: you may wish to relax any sickness absence trigger points when an individual reports they have (swine) flu during a flu epidemic if this can be verified by a GP fit slip (or even if not verified by the GP if Government guidance is that individuals should refrain from visiting their GP).
2. Difficulty attending work because of the flu epidemic:
a) Public transport is shut down - decide your policy on whether the individual should be paid for that time (you don't have to), whether it can be taken as flexible / annual leave, or whether arrangements can be made to allow them to work from home.
b) The individual reports that a member of their household has flu: decide on your policy as to whether the individual should be advised to attend work as normal and risk spreading the infection to colleagues or stay at home. Generally as you have a duty of care to others in your workforce you may wish to advise the individual to remain at home, however you might want to consider the possibility of them working from home if possible. If you instruct them to remain at home in these circumstances you will need to maintain them on full pay.
c) The employee reports that their child or other dependant has flu and they are unable to arrange care at short-notice: Under these circumstances the employee has a statutory right to a reasonable period of time off (which can be unpaid) to care for dependants. This is limited to sufficient time off to deal with the immediate issue and sort-out longer-term caring arrangements.
d) The employee asks not to attend work because of fear of contracting flu: generally the employee is contractually bound to attend work, and not doing so in these circumstances should be dealt with through the Company disciplinary procedures. However if the company is convinced that the individual has psychological or physical reason whereby they should not attend, then it may decide to agree to a period of annual / unpaid leave, or working from home arrangements with the employee.
3. Cover arrangements during a flu epidemic: if your employee's contract of employment makes allowance for it, then you can require them to work additional hours, or temporarily change their job role. However this needs careful and equitable implementation / training, and it is advisable to consult with your workforce to agree how this can best be achieved. Of course you will need to agree what the pay implications will be for these additional hours / responsibilities.
4. Flu vaccinations: you may decide to pay for flu vaccinations for your employees. While this is admirable, you have no right to insist on your employees having the vaccination, and you cannot take any action against them if they refuse.
5. Letting employees know a colleague has flu: it would not generally be appropriate to divulge the the reasons why an individual is sick. This would be a breach of the Data Protection Act. However it would be possible, as part of the individual's sickness reporting arrangements to ask the individual if they explicitly consent to having the fact they have flu disclosed to their colleagues. This is important to contain the spread of the virus (e.g. those who worked closely with the individual could be sent home), and to allow those who may be at-risk in some way to seek medical advice e.g. pregnant employees.
6. You should also consider: business continuity arrangements in the face of severe staff shortages (it is estimated that absence levels in the event of school closures could run to at least 25%); how you communicate any difficulties to staff and customers / clients; reducing the number of face-to-face meetings and other direct contacts; measures for preventing infection spread (e.g. providing anti-germ hand-wash, enhanced cleaning etc.).

In anticipation of renewed influenza activity this winter, we have just finished a new generic policy on Pandemic Flu which covers all the above points.
Date:5/1/2011 Posted by: Elaine Cox Ref: #7
What legally/legislation wise/health & Safety/working time directive etc. is required in terms & conditions / contract of employment for an employee who will be required to work from home.
Even when an employee is not working in your office or building, you still retain the same duty of care for that employee. Therefore you have a duty to protect the health, safety and welfare of all your employees including homeworkers. You also need to reflect an individual's homeworker status in their contract of employment - no major change is necessary, but obviously their base needs to be their home address, and you need to reference the requirements of homeworking. This would normally be outlined in a simple homeworking policy which could be appended to their contract. Pretty much all other conditions would remain the same as your normal contract unless you have agreed something different e.g. hours of work during the day.

Your policy on homeworking needs to make provision for:
1. A risk assessment of the home premises of the homeworker - you will find more information on risk assessment here. The Health and Safety Executive also produce guidance here. A sample risk assessment form can be found here.
2. Ensuring their environment is appropriate and they have all the necessary equipment / tools / substances / storage areas (including locked storage if necessary) required to do the job. This must be checked regularly, and appropriate safety / protective equipment must be provided as well as the training to operate it safely. First aid requirements should also be considered and a first-aid kit supplied if necessary as well as a fire extinguisher. The homeworker should also maintain an accident log and be aware of how to report accidents / incidents which occured in the home.
3. If the homeworker is a new or expectant mother there are specific risk assessments required in relation to the unborn or newly born baby. The Company should also be satisfied that an employee with caring responsibilities has adequate care arrangements in place for dependants who may be at home during working hours.
4. Whether any homeworking allowance is payable to cover the costs of electricity, heating etc. and if so how much this is and how it is payable e.g. monthly, annually etc. Up to £3.00 per week can currently be claimed tax free without the need to demonstrate what has been spent. You should also explain how other expenses such as travel, phone expenses, broadband etc can be claimed.
5. Arrangements for supervision of the homeworker, frequency of meetings with their supervisor / colleagues, availability during the day and how they can access company training opportunities in the same way as their office based colleagues. Also how workload and output can be monitored and measured.
6. A statement to the effect that the homeworking policy will not discriminate on grounds of age, disability, gender / gender reassignment, marriage / civil partnership, pregnancy / maternity, race, religion or belief, sex, or sexual orientation
7. That the Company expects the individual homeworker to ensure that homeworking is within the terms of their tenancy / mortgage agreement, and that they have appropriate insurance (the Company may wish to insure its equipment separately).
8. What happens to the equipment etc if the homeworking arrangement comes to an end, or the individual leaves the company.

Date:4/1/2011 Posted by: Helen Badger Ref: #6
We are a small non-unionised manufacturing organisation which has grown fairly rapidly and we now employ nearly 100 full and part-time employees. Recently we have come under pressure from a trade union to "recognise" it. The union has been actively canvassing our staff to join, and we believe that a fair number may have done so. What are the implications of recognising, and what if we decide not to do so?
If you recognise the trade union, then they will have legal rights which you will need to grant. These include allowing union officials and learning representatives time off to carry out their union duties, giving TU members time off to take part in union activities, providing information for collective bargaining purposes, and consulting with them on health & safety, redundancy and business transfer issues. You can opt to voluntarily recognise the union if you feel that sufficient of your employees want this (usually measured by numbers who have joined), and you are satisfied that the union is independent and would conduct itself in a way which would not be harmful to your business. Of course you do not have to voluntarily recognise the union, however the union involved may then seek to attain statutory recognition (this procedure applies to employers with 21 or more employees).

To invoke this the TU concerned will need to write to you requesting recognition. If you refuse they can apply to the Central Arbitration Committee (CAC) - a permanent independent body with certain statutory powers, for recognition for a particular group or unit of staff. The CAC will look at any applications against a number of criteria, many of which relate to the strength of support for recognition among the workers concerned. If more than 50% of the workforce want recognition it is likely to be granted. If less than 50% are TU members, then CAC are likely to hold a secret ballot to ascertain the amount of support the TU has. If 40% or more of the workers take part in the ballot and the majority vote yes then statutory recognition will be granted. Once granted you will need to bargain with the union in relation to pay, holidays and hours of work for at least 3 years. After that you can apply to CAC to de-recognise the union.
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