October 16

Common pitfalls when dealing with maternity….

According to the Office for National Statistics the autumn is the most popular season to give birth!

To ensure you are up to date with the full range of maternity rights women are entitled to and some of the pitfalls employers fall into……the following is worth a read…

Maternity leave

Recent figures show that most women on maternity leave will want to return to work after their leave – three-quarters of women with children now work, a 50% rise in more than 40 years. However, despite the introduction of the Equality Act 2010 which specifically protects pregnancy and maternity, the law is still quite complicated for both employers and new mums to navigate and frequently things go wrong.

Pay rises

Women on maternity leave should always be considered for pay rises even though they are not working. Any pay rise should be backdated to the beginning of their maternity leave, irrespective of the period the pay rise covers.

If the woman earns more than statutory maternity pay (SMP), the pay rise will not affect her salary after her first six weeks of leave, as the amount she is entitled to is capped after this point. However, any pay rise will result in an increase in pay for her first six weeks of leave, which is calculated at 90% of her earnings unless she usually earns less than SMP.

Redundancy consultation and selection

There is a myth that women on maternity leave cannot be selected for redundancy – this is not correct, although they obviously cannot be selected because they are on maternity leave. If a redundancy situation affects an employee on maternity leave they must be consulted about the proposed redundancy even though they are not at work. Although the woman may choose not to take part in discussions, she should at least be given the option.

If selection criteria are used, those on maternity leave must not be disadvantaged. For instance, if there are no recent appraisals or sales figures to consider, choose a time period when there is data available for everyone or look at alternative selection processes.

An employee on maternity leave should not be given preferential treatment which could lead to her male colleague being made redundant. For example, in a recent case an employer discriminated against a male employee when treating a woman on maternity leave more favourably.

Redundancy – alternative roles

If a woman on maternity leave is selected for redundancy then she does have enhanced rights – the employer must make positive efforts to find her similar roles elsewhere in the organisation, not just give her a link to the vacancies on the website. If there are vacancies that are suitable for her then she must be placed in this role without the need for competitive interview, ahead of other colleagues.

Bonuses

If a bonus is awarded to employees for a period where the woman has been on maternity leave for part of that period, then case law says an employer can pro-rate the bonus and pay it only for the time she was working. However, if the bonus is in respect of work done before the maternity leave, then this should be paid in full.

Reasons for dismissal

If a woman is dismissed while pregnant or on maternity leave then she is automatically entitled to written reasons for dismissal, without having to ask for them or without having to have a qualifying period of two years’ employment before she is entitled to them.

Keeping in touch days (KIT days)

An employee may work for up to 10 KIT days during her maternity leave without bringing her leave to an end or losing her SMP. The KIT days have to be agreed with the employer, the employee cannot insist upon them. Any work done on a day during maternity leave will count as a whole KIT day even if it is only for an hour or so.

Be very clear about how much an employee will be paid for working a keeping-in-touch day during her maternity leave, and whether her statutory maternity pay will be paid in addition to payment for the KIT day or offset against it.

Pay rise that coincides with pregnancy or maternity leave

Ensure that employees are not denied a pay rise that they would have received had they not been on maternity leave. Recalculate SMP entitlement by applying the increased level of pay to the whole of the SMP calculation period and bear in mind this recalculation will have to be done even when the pay review comes after the end of the paid period of maternity leave.

Be aware that a pay rise may result in an employee becoming entitled to SMP. Inform employees of the pay increase and pay any amount owing promptly. Keep records of any changes made in the payment of maternity pay.

Knowing what rights women have while on maternity leave is important to ensure the business is supporting and rewarding employees in accordance with the law. This is not only good for their people, but also for the employer’s reputation and for attracting and retaining the best talent.

If you need any help at all email me at nicola.goodridge@goodhr.co.uk.

October 1

Employees too sick to come to the office yet well enough to work from home…..sound familiar?!

If one of your staff members phones in sick, they can self-certify for up to seven days. What this means in practice is there is no need for a doctor’s note, but you can ask them to fill out a form on their return to work explaining the reason why they were off.

If an employee is sick for longer than seven consecutive days, including non-working days, they will need a doctor’s note, also called a fit note. This will either say whether an employee is “fit to work” or “not fit to work”.

A sick employee is therefore one who is not working as a result of either self-certification or GP-certificated sickness. The starting point must be that a sick employee is someone who cannot carry out the duties of their work – if a person is too ill to attend the place of work then they are too ill to work per se.

Working from home is a privilege and not a right….

There is a tendency for employees to take the odd day or two as ‘working from home’ whilst they have a simple cold or possibly a more spurious excuse! This must be addressed within the workplace. Working from home is a privilege and not a right and it is not down to the employee to decide unilaterally that they are going to work from home for a day! An employee working from home must be for a genuine reason, must be agreed in advance and must be as productive via email and phone and as available as if they were in the office.

Genuine reasons to work from home…

However, there may be circumstances when it is appropriate to work from home when sick – for example, it may be possible to feel too ill to get into the workplace but feel fit enough to sit in front of a computer and work.

A blanket policy that states that if you are too sick to come in then you do not work may be the way forward for some employers in certain industries where home working is impossible. Some companies may be able to take a more flexible approach and judge each case individually – for example if someone has broken a limb they may be able to work from home, whereas if someone is seriously ill with a virus or off with mental illness they are likely to be advised not to work whether at home or in the office.

In the age of technology it is understandable that some people within reason will wish to keep on top of their work. In these instances, where the employer has sanctioned working from home, a note will be made that they were working from home with approval and whilst sick and thus lower productivity may be expected. It is never the employee’s sole decision that they shall work from home for health reasons!

On the basis that the employer has imposed a clear policy that working from home is not just a ‘given’ at the whim of an employee, when might you want to work from home whilst off sick?

There are three main reasons why you might work from home whilst off sick:

• The fit note provides options for you to continue working in a different capacity (ie. from home) instead of going off sick entirely.
• Working from home may be used as part of a rehabilitation programme and as a preliminary step towards you returning to work after an accident or illness.
• As part of a ‘reasonable adjustment’ under the Equality Act 2010 when it has been agreed that working from home is necessary.

What are the responsibilities of employer and employee when working from home whilst off sick?

The employer’s and employee’s obligations under health and safety legislation continue to apply even if you are working from home. Both employer and employee should ensure that working from home meets the law with regard to the workstation and its positioning in the home.

The employer also needs to consider whether the employee shall be sufficiently productive to attract full pay or whether working from home will be on a part time basis and salary is made up using SSP or any company sick pay scheme. All these aspects should be discussed before commencing home working.

If you are working from home during a period of illness, you should be monitored and supervised and a plan should be drawn up aimed at increasing your attendance at work (if this forms part of the rehabilitation programme). Your employer will need to cover the cost of supplies such as printing, broadband, paper, telephone charges.

Presenteeism…..how to deal with employees who insist on working when signed off sick?

Employees may still be signed off sick by their GP but want to return to work whether for financial reasons (if there is no company sick pay) or simply because they are conscientious and keen to keep on top of their workload.

Office workers are easy to regulate. However, regular home workers may be more difficult to monitor. If you find they are working while they are signed off, either through their own volition or through the tacit consent of a manager, you may want to ensure this stops until they are fully recovered and speak to both employee and manager to make it clear they should not be working.

For both office and home workers you may wish to specify that, if they are signed off by a doctor they are off sick and should not work under any circumstances – whether from home or from the office. From an insurance perspective if you continue to allow an employee to work while signed off it could represent a breach of your duty of care as an employer and could make you liable for further damage an employee suffers if they continue to work whilst sick.

If you want any advice at all please email me at nicola.goodridge@goodhr.co.uk.