Miller Samuel

VOLCANO CAUSES ERUPTION OF ANNUAL LEAVE ISSUES

EMPLOYMENT

It’s not often employment lawyers get to write about volcanoes, so when the chance comes along we tend to grab it with both hands. The eruption beneath Iceland's Eyjafjallajoekull glacier has caused significant chaos across the world, leaving thousands of people stranded abroad, unable to get home due to flights being cancelled as a result of the ash cloud sitting above Europe.

This turn of events is now causing disruption to many businesses, as employees have been unable to return to work as planned following periods of annual leave. Employers’ primary concern will be ensuring that their business can continue to function as normal in the face of staffing shortages. However, a second issue employers will have to consider is that of how they deal with any affected employees annual leave entitlement given their extended absence from work.

The current situation does allow for some flexibility in approach on the employers part. The terms of the employee’s contract of employment may dictate what option is most suitable in any particular case. Employers may decide that, given the inconvenience which employees have been put to through no fault of their own, a one off agreement could be entered into that simply sees the employee receive full pay without any deduction from their annual leave entitlement.

However, there is no compulsion on employers to opt for this compassionate option. The situation could be dealt with by notifying the employee that any additional days’ absence will be deducted from their annual leave entitlement for the year. Alternatively, if a view is taken that deducting this unplanned absence from the year’s holiday entitlement is overly harsh or may cause hardship (e.g. because it disrupts future holiday plans), the employee’s additional absence could be classed as unpaid holiday.

There are more creative solutions which employers could adopt in an effort to reach agreement with staff to deal with the situation (e.g. allowing the employee the opportunity to make up lost hours over the coming weeks and months, if business needs allow for this). Such an approach may be more beneficial as it maintains good working relationships with those employees who, given the inconvenience to which they have already been put, may be close to “erupting” themselves!

MILLER SAMUEL SPONSORS

Miller Samuel were proud to sponsor, for a second year,  the top award within the School of the Built and Natural Environment at Glasgow Caledonian University.

Sponsoring the BSC (Hons) in Property Management and Valuation degree programme is an honour and the prize this year was awarded to Gary Armstrong, the top student in legal studies.

The award was presented to Gary by Philip Curle, Head of Miller Samuel's Commercial Property Department on 18th November 2009. 

      

NEW LEGISLATION ANNOUNCED

EMPLOYMENT

April 6th sees the government introduce a number of new pieces of Employment Law: here we set out the 4 main changes which will have the greatest impact for employers.

1: “Fit notes”

A new "Statement of Fitness to Work" will be introduced by the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010. This will be used as a replacement for the traditional sick-line employees’ are required to submit when absent from work due to illness. The new rules recognise that not all illnesses will result in an employee being unable to carry out all of their contractual duties.

The “fit note” will require GPs to indicate whether an employee is “not fit for work” or “may be fit for work taking account of the following advice...” Where the latter indication is given, the GP will then state what measures an employer could introduce to assist an earlier return from absence: phased return, amended duties, altered hours or workplace adaptations. The government believe this will encourage further discussions between doctor and patient and between employee and employer on the potential options which would allow a speedier return to work.

2: The Right to Request Time Off for Training

The Apprenticeships, Skills, Children and Learning Act 2009 will allow employees working for employers with 250 or more employees a right to request unpaid time off to train. This right will be extended to all employees, regardless of the size of their employer, from 6 April 2011. To make a request for time off to train under the new rules, employees will need to have completed six months' employment and the training must be for the purpose of improving both their effectiveness at work and the performance of their employer's business.

The actual procedure which employers will be required to follow in dealing with any request broadly mirrors that which is in place for dealing with an employee’s flexible working application.

3: Employment Tribunal’s power in whistle-blowing claims

From April 6th, where an employee makes an application to the Employment Tribunal which includes a “whistle-blowing” claim, the tribunal will have the power to pass the ET1 (or extracts from it) to the appropriate regulator, who will then be able to investigate the alleged malpractice.

The employee bringing the claim will have to give their consent before any referral can be made. This has led to concerns that a claimant may only provide this consent as a means of gaining an additional "bargaining chip" in settlement negotiations.

4: Additional Paternity Leave and Pay Regulations 2010

These well publicised regulations provide for additional paternity leave and pay to parents of babies born (and adoptive parents notified of a match) on or after 3 April 2011. Eligible employees (usually fathers) will have the right to take up to 26 weeks' paternity leave, if the mother (or primary adopter) returns to work early. Part of the leave will be paid if taken during the mother's (or primary adopter's) paid leave period (at the applicable statutory rate). Businesses will need to ensure their policies are updated by mid-2010 to provide for the forthcoming changes.

Whilst these are the main changes that employers need to be aware of, at Miller Samuel, we do like to be thorough when providing you with information. In light of this, we can report that Section 71 of the Coroners and Justice Act 2009 also comes into force today, introducing new criminal offences of holding someone in slavery or servitude, or requiring a person to perform forced or compulsory labour. The penalty for those found liable will be a fine, up to 14 years' imprisonment, or a combination of the two. However, we are certain that nobody reading this would require our advice in respect of such matters!

As always, if our Employment Unit can be of assistance to you with regards to any of the new legislative changes, please don’t hesitate to get in touch with a member of our team by emailing us or calling 0141 221 1919.