Maternity leave, sexual harrassment, holiday pay after sick leave. One of Osborne Clarke’s employment law specialists Victoria Parry answers some often asked questions on these topics.
This month we focus on a couple of issues which ra couple of issues which rank amongst the most commonly asked questions in the current climate,
Question: Three weeks from now, an employee of our company is due to return to work following maternity leave. She has requested to return to work part time or in a job-sharing role, rather than the full time role she occupied previously. What are my obligations as an employer?
You are required to give serious consideration to her request by investigating the possibility of finding her a suitable part-time role. This means you have to consider whether your employee can do her former job (or a comparable job) on fewer hours, say, by delegating a number of the job's responsibilities to another role or by employing another person to share the job. If you are able to employ her part-time, you must ensure you do not pay her less pro rata than she earned when she worked full-time. You may not treat her less favourably in any respect than you would treat any full time worker.
You may refuse her request for part-time work if there are good business reasons for doing so. However, if you do not believe the employee's job can be performed on fewer hours, you should consider other flexible-working options. For example, you could allow her to work the same number of hours but according to a timetable more convenient to her, or you could allow her to work from home. If you fail to give due consideration to any of these options and deny your employee's request outright, you risk her making a claim for indirect sex discrimination in the Employment Tribunal, for which there is no maximum compensation award.
Question: Following an allegation of sexual harassment against one of our employees, we are undertaking internal investigations and interviewing several employees. Will we be obliged to disclose these interviews to the employee in question during the disciplinary process?
In any disciplinary process undertaken an employee should have a chance to state his case and should therefore know sufficiently what has been said against him in order to do this. Where possible, any interviews with other employees, made in the course of the investigation, should be disclosed to the employee in question.
However, in cases of a sensitive nature, such as sexual harassment, it is understandable that some employees may wish to provide statements confidentially. It is possible for statements to be anonymised or redacted in order to conceal the identity of the witnesses. By doing this you can still maintain your promise of confidentiality to those making the statements, whilst at the same time fulfilling your obligation of holding sufficient investigation and acting fairly and reasonably in the circumstances.
Question: We have an employee who has been off sick for a considerable length of time. He is now claiming holiday pay. Do we have to pay this to him?
An employee on long-term sick leave can claim 4 weeks holiday pay under the Working Time Regulations even where they have been absent from work throughout the leave year in question.
The employee in question will have been accruing holiday entitlement even though he has been on sick leave. You will have to pay him his entitlement of 4 weeks paid holiday per annum, even if his contractual sick pay has run out.
This is applicable as long as the employee continues to be employed. It is necessary to bear in mind that if you take the decision to terminate your employee’s employment, you may be liable to make notice payments as well as liability for a potential claim for unfair dismissal or a claim under the Disability Discrimination Act.