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School's out for summer
With school holidays in full swing, here are a few tips on leave issues common at this time of year and how best to deal with them…
1. Temporary changes to working hours
You may get more requests for temporary changes to working hours over the summer period to juggle child care arrangements.
There is no legal obligation to grant such a request, but if you are willing to do so you should:
(a) adopt a consistent approach to avoid any accusations of favouritism or discrimination;
(b) make clear on what date the arrangements will come to an end and that there is no guarantee that similar requests will be granted in future; and
(c) document the agreed changes in writing (such as any pro-rata reduction in pay and the temporary nature of the arrangement).
As other employees may have to take up an increased workload in order to cover for absent employees, explore whether employees working reduced hours can be partnered in a temporary job-share arrangement.
It is good practice to document the specific reasons for granting or refusing. This is helpful when turning down other requests by enabling you to draw distinctions based on the particular roles and the nature of the requests.
2. Working from home
Some employees may ask you if they can work at home for some of the school holiday period. You may be reluctant to grant such a request if you believe that it is made in the absence of arranging appropriate child care. Any requests to work from home should be made on the basis that it cuts down on travelling time and/or makes child care arrangements easier. An employee should not be both working for you and caring for their child at the same time and this should be made clear at the outset!
3. Time off for dependants
All employees have a right to take a reasonable amount of time off work in order to deal with unexpected emergencies affecting their dependants. The definition of “dependants” covers not just an employee’s children but also his or her spouse/civil partner, parents, and even someone else living in his or her household (but not lodgers or employees).
Employees can take time off where it is necessary to provide assistance themselves or arrange for care if their dependants fall ill, give birth or are injured or assaulted. They can also take time off where it is necessary to deal with unexpected breakdown of arrangements for the care of a dependant. If the ash cloud makes a re-appearance this summer causing the childminder's late return from her own holiday, it would be covered but not if your employee is late back from holiday themselves. It is not intended to take the place of ordinary childcare arrangements and it is entirely separate from the right afforded to employees with children under five to take unpaid parental leave.
4. Other emergency time off
Other emergencies that may occur should be dealt with in accordance with any relevant policy or contractual arrangement you have in place or simply by ad hoc arrangements between you and the employee. If you have a particular problem with employees coming back late from holiday you may want to consider implementing a policy on how such absences will be treated.
5. Malingerers, unauthorised absence and late returners
If there is a clear increase in sickness absence rates on Fridays and Mondays or at the beginning and end of pre-booked annual leave, this can be addressed in part by conducting return to work interviews with those who have been off sick. This should be done as a means of monitoring absence and discouraging non-genuine sickness absence; it should not be viewed a disciplinary meeting. If it transpires from a return to work interview that the sickness absence is not genuine then you should follow your disciplinary procedure.
Other unauthorised absence, such as where people simply come back a day or two late, should also be dealt with as a disciplinary matter.
6. Genuine sickness
There may be instances where employees genuinely fall sick whilst they are on holiday. European case law determined last year that if employees are incapacitated during a period of previously scheduled statutory holiday, they should have the right to re-schedule that holiday for a later date. The case related to the EC Working Time Directive, rather than the UK Working Time Regulations, so the position in relation to sickness-affected holidays of employees in the private sector in the UK is slightly unclear. Consequently, there are a number of options for employers in this position:
(a) refuse to allow employees to re-schedule their holiday on the basis that it is not required under a strict interpretation of the UK Working Time Regulations. However, this position appears increasingly risky in light of the first UK Employment Tribunal decision to address the issue; or
(b) reinstate such amount of its employees' holiday entitlement as is affected by the employee being off sick and even allow that holiday to be carried over into the next leave year.
In order to prevent abuse of permitting re-scheduling of holiday, you can do any of the following:
(i) make clear that holiday will only be re-scheduled if your sickness procedure is followed without variation, e.g. reporting to a manager on the first day of sickness;
(ii) require greater evidence of sickness whilst an employee is on holiday than normally required when at work, for example a doctor’s note rather than self-certification;
(iii) make clear that even if an employee is sick to the point that they are not able to enjoy their holiday they must be “unfit for work” to be able to benefit from contractual sick pay and re-scheduling of their holiday; and
(iv) withhold contractual sick pay and re-scheduling where sickness is self-inflicted such as sunburn, sunstroke or injury due to an extreme sporting activity.