The Royal Wedding – Holiday Entitlement

Question:

Has it been made official that the 29 April 2011 is an additional Bank Holiday? Can I officially inform all of our employees?

Answer:

It has been announced that 29 April 2011 will be a public holiday in England, Wales and Northern Ireland. Scotland has yet to announce whether they will adopt the extra day. There may not be an entitlement for employees to receive the extra bank holiday though; it all depends on the wording of the holiday entitlement section in the contract of employment. Therefore you may want to consider this point before officially informing all staff of the additional bank holiday.

Question:

With the Government declaring the 29 April 2011 a public holiday for the Royal Wedding are organisations obliged to give all staff the additional holiday even if the contracts of employment only state that employees will receive eight public holidays?

Answer:

Whether or not there is a legal obligation to pay employees for bank and public holidays will depend on the wording of the employee’s contract of employment. Where the contract specifically provides for eight bank holidays there will be no obligation on an employer to increase this to reflect the additional bank holiday on the 29 April 2011.

If the organisation is open on this day and staff wish to take the day off, then they can elect to book a days annual leave. This request should be considered in line with business needs on a first come first served basis. If the business closes on this day and staff do not want to take this day as one of the eight days that they are entitled to then the employer can give notice to insist they take the leave. The notice required will be twice the amount as the leave required to take eg two days notice to take one day off (unless their contract requires greater notice to be served).

Employers can of course decide to be generous and give the additional bank holiday in 2011 even if the contract does not provide for it.

Accommodating Fit Note Suggestions

Question:

An employee brought in a fitness for work note stating that he or she “may be fit for work” if the employer can accommodate reduced working hours. If the business is not able to do so, is the employee fit for work or not?

Answer:

If you are unable to accommodate the GP’s suggestions, then the fit note automatically defaults to a sick note, signing the employee as unfit. The Department for Work and Pensions guidance states: "If it is not possible for you to provide the support for your employee to return to work, you and your employee should use the Statement as if the doctor had advised not fit for work."

In the above circumstances, you should encourage the employee to go back to her GP if she feels capable of doing the full job on her normal contracted hours or some other arrangement, which you may be able to accommodate in order to facilitate her return to work.

Annual Leave During Maternity Leave

Question:

An employee has requested to take annual leave during her maternity leave period. Should she be allowed to do this?

Answer:

Ideally, an employee should be informed prior to taking her maternity leave that she will need to use up her holiday entitlement during the annual leave year, whether this is before or after the maternity leave. This is because her entitlement will not carry over, even if the maternity leave period carries into a new annual leave year. This is commonly done by organising annual leave to be taken at either end of the maternity leave period, at the employee’s convenience.

Where an employee wishes to use her holiday entitlement during her maternity leave, there is a risk that she will also be able to claim her holiday again after her maternity leave period, even if this is after the relevant leave year, due to the implications of the Gomez case (as annual leave is for rest and recuperation, in contrast to maternity leave, which is to care for a baby). Whilst this risk is reduced by the fact the employee is the one requesting the leave, it is a situation best avoided. As a last resort, in the special circumstances of an employee requesting annual leave during her maternity leave period where she has not been informed of the risk of losing her annual leave entitlement, or is unable to take holiday because it coincides with the annual leave period, it may be advisable for the employer (as a one-off) to allow the employee to carry over her annual leave to the next leave year.

Raising a Grievance After Resigning

Question:

An employee who resigned a month ago, two weeks later, has submitted a grievance. Is it still the case that grievances can be responded to by post without the requirement of a formal hearing if someone has left the company?

Answer:

Legally, since the repeal of the statutory discipline and grievance procedures in April 2009, there has been no such thing as a post-employment grievance where the actions that the employee is complaining about have taken place after 5 April 2009. The Acas code of practice which replaced the old law does not apply. Despite this, best practice is still to deal with complaints raised post-employment in accordance with the Acas Code in order to deal with any issues that may be legitimate, to gather evidence to form a defence where they are not, and to show that the employer is a reasonable one in all of the circumstances.

The Royal Wedding – Holiday Entitlement

Accommodating Fit Note Suggestions

Annual Leave During Maternity Leave

Raising a Grievance After Resigning

HR Topics

...your questions answered