Posts for August 2009

Swine flu – who pays?

Sick pay Pandemic or not, people off sick with ‘flu are covered by their normal sick pay rules.

Everyone is entitled to statutory sick pay (SSP) but this only applies after three ‘waiting days’ and pays £79.15 a week to anyone earning £95 a week or more. Employers may contract to pay additional sick pay above SSP, but there is no default entitlement – it depends what the contract says. And there’s usually a time limit on sick pay, so an individual’s sick pay will depend not only on the sick pay scheme, but on how much sick pay they have already had.

Medical certificates

There is no need for anyone to visit their GP to get a medical certificate for the first week of absence. Individuals can ’self certify’ for SSP for the first week, and most employer ‘top-up’ schemes follow that pattern. Individuals who are off more than one week will need a medical certificate to keep claiming SSP. They should phone their GP surgery to find out how to get one. Usually it is necessary to be seen by a GP but if there is a real outbreak of mass ‘flu, there may be some temporary change of rules. This would certainly help free up GPs. Let’s hope someone has the sense to do this if needed.

Family commitments

If schools are shut, then parents may be eligible for unpaid “dependants leave” in order to arrange care for the children. If the children get flu this will also apply. This is normally a brief period of unpaid emergency leave – say up to 48 hours. “Dependants leave” applies equally to elderly or other relatives, or members of the household dependant on an individual for care. The time off is to arrange care – there’s no general legal right to time off to look after a relative or dependant. And there is no general legal right to be paid for any of this time. Some employers may agree for annual leave to be used. Others may agree for time to be made up later, but they are not obliged to.

Workplace closed by employer

Anyone working in schools or hospitals is covered by national and local agreements that deal with what to do if the workplace is closed. If the contract provides for flexible working, annual hours, or homeworking, then these provisions will normally apply if the workplace closes.

For ordinary workers on standard contracts, a lot depends on whether the employer has the right to make unpaid layoffs (sending the worker home without pay). If the contract itself does not expressly say that the employer may lay off without pay, then ordinarily any layoff would have to be paid. In an unpaid layoff, the employee is still entitled to statutory “guarantee pay”, paid by the employer. For this, a “layoff” is a day when less than 50% of ordinary work was provided. For the first five days layoff in any 3 month period, employees are entitled to 50% of their normal basic pay subject to a maximum of £21.50 per day. If the government orders a general closure of workplaces, it may be that contracts are ‘frustrated’ by a supervening event. Technically this may mean that there is no obligation on employers to pay during the period of ‘frustration’. Frustration is a technical legal term, and does not simply mean “feeling upset”. We will revisit this, if necessary, in a later blog.

Disabled or vulnerable workers

If an individual has a medical condition that make them more vulnerable to ‘flu, they may be advised by their GP to avoid public places. This may affect them getting to work, or being at work. If the individual is disabled within the meaning of the Disability Discrimination Act (DDA), then the employer will need to consider making “reasonable adjustments” to their duties to take account of their condition. The DDA normally deals with long term adjustments, rather than short term ones. But it would be wise to make appropriate adjustments – for example, if you could arrange for people to work effectively from home, it would be silly not to do so.

Similarly if a pregnant woman is advised to avoid the workplace, you should make appropriate adjustments to her duties. But adjustments should be based on qualified medical advice, not simply on an employee’s self-diagnosis of some particular threat.

Too nervous to come in

Employees who are frightened may decide not to attend work to reduce their risk of infection. If they are not ill (or a vulnerable worker) they are not entitled to be paid or to claim statutory sick pay. Health and Safety Employers may have their own health and safety plans for ‘flu pandemics. These would normally include:

1. Reducing business travel
2. Reducing face to face meetings
3. Reducing attendance at work/commuting by using alternative technology
4. Encouraging workers to take time off as soon as any symptoms showed, rather than struggle in and infect their co-workers
5. Encouraging home working where possible.

We are happy to deal with queries on this subject by email: advice@irenicon.co.uk.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.  

Tel: 08452 303050  Fax: 08452 303060 

Website : www.irenicon.co.uk. 

You can follow Annabel on twitter – http://twitter.com/AnnabelKaye

Bullying is no longer a playground problem

Let me state one thing, I loathe bullying in any form. The idea of a person using their physical, intellectual or a status advantage to humiliate those weaker than them disgusts me. But an excuse (rightly or wrongly) can be made when it occurs in schools – “they are children after all, they don’t know any better”. But what’s the excuse when bullying happens in the workplace? Surely adults should know better than to resort to the type of emotional torture that was once considered to be an issue confined to the playground? Having witnessed work place bullies practice their craft, I can assure you it’s a very real problem, and one that has been ignored for far too long. Thankfully it is an issue that is being increasingly highlighted and one that employers should be on the look out for. Bullying can come in many forms:

• Proficient staff being constantly criticized or given trivial tasks to do.
• Employees being shouted at on a regular basis.
• Staff members being picked on and humiliated in front of others.
• Setting up a person up to fail by overloading them with unfair levels of work or giving deadlines that are unreasonable to attain.
• Showing obvious biases to other employees.
• Attacking members of staff on a personal basis.
• Ridiculing a person and making them the butt of jokes time and again.

Businesses that don’t address the issue of bullying and leave the problem unresolved waste time and money as:

• Staff take more sick days.
• Turnover is higher, leading to extra recruitment and training costs.
• There is a reduced productivity and quality of service amongst employees as morale is lower.

While these costs can greatly impact upon employers and small businesses in particular, many companies don’t consider the potential legal ramifications involved such as financial penalties and loss of reputation. It’s clear that businesses can no longer turn a blind eye to work place bullying. Those that do are breaking the law and as a business can you afford to pay the price?

Life's a beach

With the UK experiencing a heat wave, we look at some issues when it gets too hot. Although a trip to the beach seems a very tempting option, it's not practical as a lifestyle choice for most people!

As we head into August and the weather in the UK is expected to turn warmer, managing temperatures in the workplace can become an issue. Did you know that natural water losses from a body in warm weather can be a couple of pints per hour? Although a trip to the beach is a tempting option, it’s hardly practical so here are some top tips for managing heat in the workplace:

1. provide a ready supply of cool water (free of charge) to avoid dehydration
2. use blinds/screens to block direct sunlight on workstations/people where possible
3. encourage/allow more frequent breaks
4. use fans (where safety permits)
5. check staff fridges and food storage areas are clean and cool to avoid food poisoning outbreaks
6. agree change of working hours to cooler times (if the work permits)
7. relax of dress code/uniform code
8. arrange working at home (if home is cooler)

For many years there have been 'minimum temperature' rules in place for most indoor workplaces (16°C), although there was never any maximum one. The current basic rule about workplace temperature is that "the temperature in all workplaces inside buildings shall be reasonable".

The 1999 guidance from the Health and Safety Executive (HSE) mentions 30°C as an upper limit for thermal comfort, but duration and nature of activity are both factors in deciding where the limit of reasonableness lies. High temperatures often bring high tempers, and bullying and harassment claims can soar with the temperature.

Some people are calling in sick and heading for the beach. Your normal absence management procedures will apply to this. A newly acquired sun tan will be a great giveaway! As long as the workplace is open and offering an appropriate working arrangement, there is no reason for you to pay staff to be on the beach unless they have booked leave.

Risk Assessments

If your work processes normally involve the generation of heat (or working in cold environments), then your risk assessments should deal explicitly with temperature issues.

Pregnant and disabled workers

Your risk assessments should also take account of pregnant women and disabled workers whose disabilities might impair their ability to control their own body temperature, or put them at unusual risk of damage through heat. You may need to make this assessment now if your workplace is not air conditioned.

Journey to and from work

The journey to work itself can be just as hot and hazardous to those at particular risk, and you should find out how pregnant or disabled heat affected staff are travelling to work. Adjusting start and finish times may help if they want to do this.

Outside workers

For people working outside, topics like sunburn also become an issue, and the provision of shade (where practicable), hats, long sleeved uniforms and sunscreen should be considered.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 www.irenicon.co.uk

Pay and bonuses

The ‘old world’ of pay and benefits systems has led us to a place that does not seem very comfortable. There is still consistent underpayment of women.

Massive equal pay claims are expected to imperil sections of the public sector and lead to cuts in services. Bonus schemes have rewarded individuals who bankrupted their company (and, in some cases, the country). An industry of job evaluation has been established as a defensive necessity for employers, but many employees still feel a burning sense of unfairness about their pay.

What are we trying to achieve? The legal context is perilously limited as a starting place, as it is simply concerned with eliminating oppressively small wages (with National Minimum Wage), and manifest discrimination on the ‘equality’ grounds. But there is little legal imperative to “fair” pay, once the hurdle of unlawfully discriminatory differentials is overcome.

It may be lawful to single out workers who do not have the benefit of specific legal protections, but it will tend to undermine feelings of fairness. For example, those who never take ‘sickies’ are functionally working harder than those who do. They may argue they are being ‘discriminated against’ if they are salaried, since they work more hours for the same pay.

They may have no legal redress, but is your organisation paying the price some other way? Workers can use subterfuge to restore a sense of ‘equity’ if they feel they are being unfairly treated, but this is never to the employer’s benefit. Minimum and hourly wage structures tend to reward work by the hour, but perhaps the reality of the new world of work is to be found in piecework rates. This may be a useful approach for some jobs, but for many it is not easy to measure the “piece”.

You could argue that if I am twice as productive, I should I get twice the hourly rate. But if the organisation has not established a clear expression of “value” in the jobs, and a way of measuring outputs, then what constitutes ‘productive’ will not be clear and reward structures will be adrift. Bonus schemes come in a wonderful variety of shapes and sizes, but what is a bit startling is the number that seem to reward undesirable behaviour or outcomes.

Some schemes focus on individual achievement, and although some competition between members of a workgroup can help to get everyone to up their game, sometimes the outcome is corrosive not productive. And so many bonus schemes appear to result in women being paid substantially less. There is no reason why we should not arrive at individual bonus schemes that are gender neutral and encourage the type of performance the business needs, but many fail to do that. Structuring short term and long term reward systems is becoming trickier.

Pension funding is becoming ever more difficult, so are employees going to need two jobs to earn enough to fund daily life and save for a pension? Existing working time maxima apply on a ‘per job’ basis (except for the under 18s), so two jobs may be a way for some workers to earn enough. But this raises questions about the long term health implications for the workers, and quality implications for the organisation’s customers. The European law-making process seems determined to regulate and control and reduce variation, in the interests of protecting workers from exploitation. At what point, though, is a worker being protected not from exploitation, but from work itself?