Law at Work - Happy holidays?

IT’S NATURAL at this time of year for our thoughts to turn to sun-kissed beaches or lazy garden barbecues. But holidays from work have become a little more complicated, legally and practically speaking, in recent months for medical and dental practices and their staff.

For example, your practice may have a ‘first come, first served’ policy on who gets time off at a particular time of year. This may apply equally to all staff but those who have school age children or non-Christian employees may argue, reasonably, that their choices of time off are constrained or dictated by concerns other than those of non-parents or staff from a Christian background.

Having a policy on preference for holiday time off which takes account of the fact that some staff cannot book family holidays outwith the school holiday periods, or that being compelled to take holidays during a Christian festival is not the first choice of non-Christian staff, may be sensible for practices to consider.

Another recent holiday-related HR challenge has been the problem of staff stranded abroad by cancellations of flights due to volcanic ash or strikes by airline staff.

The technical legal position is that an employee has an obligation to turn up for work and, if they do not, they are not entitled to be paid – unless their contract provides for paid leave in extreme unforeseen circumstances.

Naturally, a few well–publicised instances where some staff (for example, some teachers in Coventry) had been unable to return to work and allegedly had pay docked by their employer have resulted in bad publicity (and, presumably, poor employee relations) for the employers concerned.

It may be reasonable for staff to be asked to make an effort to return to work as soon as practicable. But if, following a reasonable investigation, it appears that they were excessively delayed beyond their control, it might be reasonable from a staff morale point of view to extend periods of paid leave, grant unpaid extra leave or allow a staff member to make up their ‘lost time’ over a period of some months.

And on another holiday-related topic which we have referred to in previous editions of Summons, the long-running legal saga over whether statutory holidays (flowing from the Working Time Regulations) accrue when the employee is off sick has reached a partial conclusion in the last few months with a few recent decisions of the European Court of Justice (ECJ).

Entitlement to the accrual of WTR holidays during long-term sick leave is now firmly established in law. This means that (in a similar way to maternity leave) holiday accrues to the limit of the regulations when staff are off sick. The annual WTR holiday entitlement is to 28 days (or 5.6 weeks) holiday (pro rata for part timers). The employee is therefore entitled to take the accrued paid leave on their return after sick leave.

The courts have even said that long term-sick staff who have, for example, exhausted their sick pay might agree with their employer to take periods of ‘holiday’ whilst they are still off sick – in order to get holiday pay in the bank – at a time when this might be most welcome. This arrangement has the added benefit to the employer of discharging their obligation to give staff holidays in the current leave year.

In the light of all these developments Law At Work is recommending that practices develop a contractual holiday absence policy which defines how holidays can be requested and how any priorities in allocation of holidays will be exercised.

The policy could also require staff who become sick whilst on holiday to provide rather more substantial evidence of their incapacity than would be provided for in the normal sick leave scenario. Only on production of this evidence would sick pay be paid. Making clear the obligations on staff in these situations before they go off may allay fears of abuse of the system.

Similarly, given the possibility that staff may be delayed in their return by volcanic ash and/or airline staff strikes, it makes sense to anticipate what will happen if, through no fault of their own, staff are stranded abroad and cannot get to work on time. A written policy which stipulates what rights, benefits and obligations staff have in these extreme situations would go a long way to reassuring staff who are delayed – whilst emphasising that taking advantage of an ‘Act of God’ and consciously choosing to avoid getting home on time will not be tolerated.

Have a great holiday – but mind how you go!

Ian Watson is training services manager at Law At Work

Law At Work is MDDUS preferred supplier of employment law and health and safety services. For more information and contact details please visit www.lawatwork.co.uk