You can't do that!! Demystifying more common HR mythsIn this second article our resident guest blogger, Mara Thorne puts the record straight about three more common HR myths of employment law and management practice about what employers can and cannot do, this time looking at bank holidays, dismissal during sickness absence and misconduct during the notice period.

1.   Everybody is entitled to the 8 bank holidays off work with pay

The entitlement to paid holidays in the UK is to 5.6 weeks in a full holiday year.  The entitlement under the EU rules is to 4 weeks.  For somebody who works from Mondays to Fridays, that equates to 28 days as opposed to 20 days.  The difference, logic suggests, is accounted for by the 8 bank holidays normally observed in the UK.  In England and Wales these are: New Year’s Day, Good Friday, Easter Monday, May Day, Spring Bank Holiday, Summer Bank Holiday, Christmas Day and Boxing Day.  The specific days are slightly different in Scotland, although there are still 8 in total.

This leads some people to conclude that everybody is entitled to take those 8 days off work as paid holiday.  In fact this is not the case.  The right is to 5.6 weeks off in a year, it is not to any specific days off.  There are many businesses that do not close on bank holidays at all, or at least not on all of them.  Alternatively, it may be that at certain particularly busy times of the year you need to operate round the clock, and thus need your employees to work on certain bank holidays.  This being the case, you are entitled to require your employees to work as normal on those days – although there is the risk that practicing Christians might argue religious discrimination if they are denied the right to time off on Good Friday, Easter Monday, and Christmas Day and Boxing Day, so be prepared to be flexible in such cases.  If employees work on a bank holiday you are obliged to let them take another day off to compensate, so that their total entitlement is not compromised.

If your business is closed on bank holidays, then you can oblige your employees to take those days off out of their total holiday entitlement, which for full time employees will be 28 days (provided that your contract of employment is worded correctly in this respect. For help with contracts of employment, get in touch.  The remainder will be available for them to take at other times of their choosing, subject to your consent, and/or at other times specified by you, for example, if you operate a shut down at certain times of the year such as between Christmas and the New Year.

But the real confusion tends to arise with part time employees who work fewer than 5 days per week.  Their total holiday entitlement is calculated on the basis of the number of days per week they work, multiplied by 5.6 and rounded up as necessary to the nearest half day (or the nearest hour if you calculate holidays in hours). Somebody who does not work 5 days per week will be entitled to only the proportion of the bank holidays that is commensurate with the proportion of a full week they work.  For this reason it is misleading to express holiday entitlement as “four weeks plus the 8 bank holidays” in your contracts of employment.

To find out how to calculate holiday entitlement for your part-time employees working fewer than 5 days per week, contact the team @GoldHR.

2.   You can’t dismiss somebody for being genuinely ill

It is generally understood that employers can dismiss somebody who claims to be off sick when in fact they are “malingering” and are not genuinely unfit for work.  This sort of behaviour is dishonest, and any kind of dishonesty undermines the trust and confidence that needs to exist between employer and employee for the employment relationship to be viable.  Dishonesty is generally classed as gross misconduct, and if an employer discovers that an employee claiming to be off sick is actually fit and healthy and has just decided to take time off for some other reason, following a proper investigation and consideration of any mitigating circumstances, summary dismissal (i.e. without notice or pay in lieu of notice) is likely to be fair and justified.

But what about dismissing somebody who is genuinely ill?  Many employers feel very uncomfortable about doing this.  Being unwell is not misconduct and is not the employee’s fault.  It almost feels wrong to take such drastic action.

However, one of the five potentially fair reasons for dismissal is “capability”, i.e. whether the person can do the job for which they are employed.  If the person is not fit enough to do the job, and is unlikely to be fit enough in the foreseeable future (or ever), then the time will come when any employer will have to cut their losses.  Some employers are more patient than others.

You would however be right to be cautious about dismissing a person who is off sick.  There are pitfalls you need to avoid, and measures you need to take first.  You should always seek medical evidence in such situations (for which the employee’s consent is needed), to ensure that you are in full possession of the facts and particularly the prognosis, before making the decision to dismiss.  You need to find out whether the illness constitutes a disability – if it does, you will need to consider whether there are any reasonable adjustments you can make which would enable the person to return to work.  In cases where the person is unable to do their original job, you should also consider whether there are any other jobs they could do. For example, if a driver develops a medical condition which prevents them from driving, there may be a desk job they can do instead.

However, if the condition is not a disability and there is no reasonable prospect of them returning to work, or if it is a disability but there are no reasonable adjustments you can make that would enable the person to return to work, or if you have no other roles you could offer them, then my advice is to act swiftly to terminate the contract with notice, on the grounds of lack of capability.

3.  You can’t discipline somebody during their notice period

In my past corporate life, I often heard about people who started taking liberties with timekeeping, attendance, or work duties once they had handed in their notice.  Stories would reach me about field-based sales people who appeared not to be visiting clients during their notice period, or who were failing to submit their weekly activity reports, for example.  These employees seemed to think that because they had resigned, they were somehow “bullet-proof”, and their managers tended to put up with their behaviour because the person was leaving anyway, so there was nothing they could do about it.

My answer to that is: oh yes there is!  Just because somebody is in their notice period does not mean you have to put up with unacceptable conduct.  While they remain employed and in receipt of a salary, they are still bound by all the normal rules of conduct, and they can be disciplined just like everybody else.  They can even be dismissed if their conduct warrants it, and as most people would not want the stigma of dismissal to tarnish their reputation, they are likely to pull their socks up if it is made clear to them that you will not tolerate any nonsense.

When somebody tenders their resignation, it is good practice to acknowledge it in a letter covering the practicalities of their departure (termination date, last working day, arrangements regarding holiday pay, etc.), and at the same time taking the opportunity to remind them:

  • that while they remain employed they are still expected to abide by all the rules and requirements of the company
  • that they should return all company property including data, and remove any personal items before they leave on their last working day
  • that after they have left they will remain bound by their obligation of confidentiality in perpetuity
  • if their contract contains any post-termination restrictions, reminding them of those.

The tone of the letter should not be threatening or unpleasant, but these firm messages should minimize the risk of unprofessional behaviour during the notice period.  If you need help drafting these types of letters, we can help, so get in touch today.

There are some things employers really cannot do, but there are others which can be done, as long as they are done properly.  The starting point for all of this is the employment contract and policy documentation – getting these right is crucial.  Thereafter, you need to act firmly, fairly and decisively, and follow the appropriate procedures, step by step.

If in doubt about what you can do and how to go about it, talk to the team @GoldHR!