Monthly Archives: July 2009

HR and the disciplinary process

The combination of employment law and HR “best practice”’ can have an interesting effect on an organisation.

At best, valuing the people underpins a successful and motivated organisation, and employment law compliance is not a challenge or an obstacle so much as a natural part of a bigger process of the enterprise’s success.
HR practitioners often dread employment tribunals – concerned about the time they take and, the costs. Yet line managers are often charmingly indifferent to the niceties of procedure and process in both grievance and discipline scenarios, which will radically affect the likely outcome of a tribunal case. It is natural for the ‘specialist’ to want to guide the process to ensure a technically good performance.

HR can be wonderful supporters, and sometimes even challengers, of the internal processes. But things can get out of hand in some organisations, and HR can shift from supporting the process to owning and then controlling it. This has the effect of disempowering managers, who then increasingly view disciplinary issues as “something HR handles”. A bad experience with an HR predecessor can leave line managers unwilling to report problems to HR, since they expect to be required to jump through needless hoops while their problems remain unsolved.

Line managers need support. So do staff. But where HR’s ‘welfare’ role is not kept clearly separate from the ‘enforcement’ role. Marking and keeping clear boundaries is essential.

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Accruing holiday

Workers continue to accrue statutory holiday when they are absent … on holiday, on sick leave, on maternity leave, for whatever reason … so long as the employment contract is still in place.

Extended sick leave

Recently, the House of Lords (in HMRC v Stringer) has decided that an individual whose employment ended after a substantial period of sick leave was entitled to be paid for accrued but untaken WTR holiday, even if it went back earlier than the start of the holiday year.   This is a dynamic area of employment law, and you should check before calculating the final payment of anyone dismissed during a long term absence.

Sickness on pre-booked leave

Some employers have agreements that provide for sickness to ‘trump’ holiday and for annual leave to be refunded.  Most employers do not.   The default is – that the holiday had been booked and taken, and whether the individual was sick made no difference.  It can surely only be a question of time before someone challenges this, and says they need their full statutory holiday entitlement some other time when they are not ill!

Maternity leave

Individuals on all forms of family absence continue to accrue leave while they are off.

Women on maternity leave must be permitted to take their annual holiday entitlement in a period other than their maternity leave, or to carry it forward into a later year (or payment if they do not return).

Holiday is pay

Accrued statutory holiday is pay and thus cannot be forfeit when an individual is summarily dismissed for gross misconduct.  Additional contractual pay can be treated differently. 

Any non-payment of holiday pay can be claimed via a tribunal as a non payment of wages.

Reducing holidays

Any reduction in contractual holiday can only be made with consent.  Agreements attempting to reduce holiday below the statutory minimum have no effect.  Employees can still insist upon their basic paid holiday.

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Holidays and accruals

@ copyright Clive Seymour

Lounging about on the beach


Holiday pay has changed a lot on the last few years. .

Minimum holiday entitlement is covered by the Working Time Regulations (“WTR”).    Since 1 April 2009, annual entitlement for a five day a week worker is 28 days (5.6 working weeks) including bank and public holidays.

Even woman on a year’s maternity leave are still accruing holiday pay – since statutory holiday is accruing as long as a contract of employment exists – not just when work is being done.   Anyone on long term sick leave may be in a similar..

Some employers pay  holiday than the statutory minimum.  The “extra” can be made subject to any non-discriminatory rules or conditions the employer wants to impose, but the ‘statutory’ element  comes with some conditions that cannot be altered.

Part time workers

Part timers now get an allowance (pro rata) for bank holidays as part of their “5.6 working weeks”, even if they wouldn’t be working on that day anyway.

Temps and trainees

Temporary workers and trainees accrue WTR holiday (unless the trainee is on work experience placement from a college or on a sandwich course).

School age workers

Children below school leaving age (who have jobs such as paperboys) do not accrue WTR holiday – up to that point their ‘time off’ rights are covered by the Children and Young Persons Act 1933.

Employer’s duty

It is the employer’s job to ensure the worker takes their leave entitlement during the year.  The general rule is that statutory  leave is used during the holiday year and may not be carried forward (or substituted for by money except when leaving  during a holiday year).

So by early summer, the smart employer is having a look at who has booked which holiday – so we don’t end up with everyone wanting the last few weeks of the holiday year.

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Where faith and sexual orientation collide

Stonewall have produced an interesting report with case studies and guidance.  It is easy to forget the poor line manager or HR manager trying to deal with these conflicts.  It is one thing to set up a set of legal entitlements to equality and it is another to make this work in the workplace where people have differing views.

What are your views? How do we deal with issues of faith and orientation in the workplace?

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Strictly ageism?

Is the BBC systematically removing older women whilst retaining older men? Is this age discrimination at work?
What do you think?

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Where religions collide

Christian teacher claims Tower Hamlets pupils as young as 8 discriminate against other religions. We really need to try to find a way to teach tolerance and mutual respect to our Citizens. How are we going to do this?

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Dignity at Work

In the modern workplace, we seem to have very mixed values in terms of what it is acceptable to say to whom (and when). Organisations often try to play safe by adopting a form of political correctness (PC) that can have bizarre and uncomfortable results.

Recently a school in Dartford barred a traditional Morris Dancing group from blacking their faces (as has been part of the tradition for hundreds of years) on the grounds this might ’cause offence’. This hyper-sensitivity on the part of others is a long way from the concept of ‘dignity’, since the arbitrary nature of the judgement (often by individuals with a hazy grasp of the idea of diversity and respect) can offend one group whilst patronizing another.

There are genuine problems in the workplace with racist and sexist terms and abuse. But banning the use of the word “black”, or banning one tradition in order to avoid some imagined offense, is not the way to go.

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Filed under bullying at work, employment law