Partner Article

Summertime employment law issues

Summertime doesn’t just bring the prospect of sunshine and holidays – for employers, large or small, it can often pose some seasonal questions that can affect the smooth running of a business through the middle of the year. So, what do you need to ask yourself during the summer months? Michael Ball, Employment Partner at the Manchester office of Gateley, a top 50, national law firm, offers insight.

How can we decide who will be allowed to take holiday if five employees have requested the same week off during the summer?

It’s highly advisable to have in place a policy that states how the holiday requests will be processed, so that employees know beforehand. Generally, the most common practice is to state that allocation of weeks will be on the basis of who makes the request first.

What if the employee phones in sick if their holiday request is rejected?

That obviously casts some doubt on whether the employee is genuinely unwell and incapable of work. The issue should be raised with that member of staff and the suspicions explained.

Usually, whilst absence for less than seven days is self-certified, it may be reasonable in these circumstances to request that the employee provides some proof of sickness.

What is the maximum temperature that the employee can be required to work in?

There is no maximum temperature stipulated. Health and Safety Regulations only require that the temperature is ‘reasonable’. Maybe it’s something to do with our climate, but, in contrast, for winter months there is a minimum temperature set out. So, in work rooms it should normally be at least 16 degrees celsius, unless much of the work involves severe physical effort – in which case, the temperature should be at least 13 degrees celsius.

A message has been left on the answer machine on behalf of Bill who is on holiday in Ibiza. It says: “Got to tell you that Bill is sick today so won’t be able to be on holiday. He is going to have to stay in bed; we think it’s something funny that he’s eaten. Can you change the records there, thanks.“ What should the employer do?

Under the Working Time Regulations 1998, the employee has the right to at least four weeks paid annual leave. If the employee is sick, and so unable to take this leave, they should be given the right to take the holiday at a different time. It’s been held by the European Court of Justice that this applies when an employee falls sick during their holiday. As such, they will be allowed to carry forward the balance of their holiday entitlement to take it at another time.

What if the employee has already taken four weeks paid leave when they report in sick?

How the employer deals with the situation, if the employee has already taken the minimum period of holiday, will depend on the contractual terms and conditions. There will be no statutory requirement for the employer to allow the holiday to be taken at a different time.

How should we treat an employee who gets stuck abroad and so is unable to return to work on time?

It’s always a difficult situation, particularly if the employee has been stranded due to no fault of their own. However, the legal position is that the employee will generally not be entitled to pay should they fail to attend work. However, there’s nothing to prevent an employer reaching an agreement in relation to pay in these situations. This could be on the basis that pay will continue for a short time, if the delay is beyond their control. Alternatively, it may be that the employee has further holidays that they can take, or that their type of work enables them to make up the lost time or carry out work remotely.

Whichever approach is taken, the employee should be required to report in to work on a daily basis, in order to provide an update on their situation and a likely return date.

This was posted in Bdaily's Members' News section by Gateley .