Thursday 17 April 2014

HR Advice Line Frequently Asked Questions

East Midlands Councils provides a HR Advice Line for its Member Local Authorities, to access this service and for advice on Local Government Conditions of Service and Workforce matters please contact our advice line info@emcouncils.gov.uk or call 01664 502 620.

Following the increase in annual leave to 28 days from 1 April 2009 can bank holidays be offered against that?

Yes, on 1 April 2009 the entitlement increased to a minimum of 5.6 weeks for a full time worker (28 days) Bank and public holidays may be included in the 28 days.

An employee has two contracts. We are holding a disciplinary hearing with her as in one contract she is very poor at timekeeping. There are no such problems in her other role. If we take disciplinary action against her, will the warning cover both her contracts? What if the issue was gross misconduct – would the person be dismissed from both jobs or just one?

It is usual for contracts to be treated separately.  However, if the alleged misconduct is relevant to an employee's other job, then you could hold a hearing and make it clear to the employee that the consequences of the hearing would affect both jobs.  The letter asking the employee to attend the hearing should include a statement to this effect, ie that any disciplinary action taken would apply to both jobs. In cases of gross misconduct, these usually signify that the misconduct is so serious that the employment relationship cannot continue often due to a total breakdown in trust and confidence in the employee and a second job would normally be affected.  You could either take the above approach or you could hold the disciplinary hearing for the job in which the employee's misconduct has taken place and if the employee is then dismissed in that job, you could also dismiss him/her in the second job.  The reason for this second dismissal would be "some other substantial reason" due to a breakdown in trust and confidence.

Where can I obtain a copy of the Green Book?

A copy of the Green Book is available to local authorities via the LGE website.

Electronic copies of the agreement can be purchased by non-local authority organisations. Please contact LGconnect on 020 7187 7373 or email info@lge.gov.uk if you wish to order a copy.

Where can I find Frequently Asked Questions about about the Green Book?

Frequently Asked Questions for the Green Book can be found on the LGE website:

http://www.lge.gov.uk/lge/core/page.do?pageId=119177#contents-7

Where can I find Maternity, paternity and adoption leave Frequently Asked Questions?

Maternity, paternity and adoption leave Frequently Asked Questions can be found on the LGE website:

http://www.lge.gov.uk/lge/core/page.do?pageId=126098

If an employee is off sick prior to maternity leave, should her week’s pay to calculate the 9/10ths be based on her reduced sick pay or her normal weekly pay? Also, should pregnancy-related sick leave be separated out?

The calculation should be based on her normal contractual pay, not the reduced amount. For further information refer to the Green Book definition of a week’s pay. To avoid claims of unlawful sex discrimination, all pregnancy-related sick leave, prior to the start of maternity leave should be recorded separately from other sick leave and should not be used for purposes such as sickness absence or capability proceedings or redundancy selection.

Where can I find information on the Modification Order?

The latest information on the Modification Order can be found at the

http://www.lge.gov.uk/lge/core/page.do?pageId=119733

An employee took annual leave and when he came back said he had been ill. Should we count his time off as annual leave or sickness absence?

If an employee falls sick during annual leave, he/she should be considered to be on sick leave from the date of a doctor’s statement. (National Conditions of Service Part 3, paragraph 4.4.

Sick pay entitlement is incorporated into Part 2 of the Green Book. Can authorities move away from this?

Part 2 of the Green Book are key national provisions and therefore cannot be moved away from.  Part 3 of the Green Book can be moved away from subject to locally agreed negotiations.

If an employee goes off sick on 30th September and completes another year’s service on 19th October how is their sick pay calculated?

It is the first day of absence that determines the entitlement to the length of sick pay. Therefore if a period of absence falls across two leave years then sick pay entitlement would be based on the leave year in which the first day of absence occurred.

Where can I find information on the Human Resource implications of Swine flu?

LGE has prepared an advice paper to help authorities manage their people issues during a flu pandemic, which addresses the key workforce issues and provides responses to some frequently asked questions.

The advice recognises that local government employees are public servants and the majority will want to do what they can to assist in any emergency, but takes into account the need to ensure that employee issues, such as illness/absence, travel and fear of infection, are handled supportively and sensitively, but sensibly and reasonably. Employees will be expected to carry out their work wherever possible during the period of any pandemic, with the aim of achieving a balance between ensuring the provision of critical services to users, and supporting employees who could have flu or need to care for dependants with flu.  

http://www.lge.gov.uk/lge/core/page.do?pageId=1184678

A question has been asked by a permanent member of staff who has been temporarily promoted to another post within the Council if there is a maximum period of time they can undertake the temporary promotion before it becomes their permanent post?

There isn't a set period within legislation or in the national conditions. The longer the person is in the role, the more they could potentially argue that it is their substantive post, however, anything up to a year or possibly two should be ok.  A tribunal will look at each case on its merits and the case brought would be potentially one of unfair deduction from wages, unfair constructive dismissal or possibly discrimination if there are other comparators.  Fixed term workers regulations could still potentially apply in that the person could ask the authority to make the temporary promotion permanent after 4 years.  The authority would need to provide an objective justification. 

An employee is going to have fertility treatment. What time off are we required to provide?

Fertility treatment is not covered in statutory employment regulations and there are no specific allowances in the national conditions of service.  NJC guidance (circular 7/00) states that authorities are recommended to make reasonable time-off arrangements for employees undergoing fertility treatment.  Good practice would be to allow the person time off for appointments as for any other medical/hospital appointment. If the person undergoes IVF, then they would be able to self-certify as sickness absence and if necessary be covered by a doctor’s certificate.  Any sickness leave connecting to fertility treatment counts as sickness, not pregnancy-related.  Some employers only allow leave for NHS appointments. However access to NHS fertility treatment varies according to health authority. It is fairer for all employees to have the same access to leave for fertility treatment, regardless of whether the treatment is provided by the NHS or privately.  The timing of some treatments is critical. This needs to be recognised in procedures for granting leave.  While the treatment may only directly require the attendance of one person, authorities may like to consider allowing the partner/nominated carer leave to attend.  Examples of policies covering fertility treatment:

  • Scottish Power – Maximum of 10 days paid leave in any 1 leave year for employees with at least 12 months continuous service
  • Asda – Up to 5 days’ paid leave to cover time spent in hospital and for recuperation.  A male* employee is entitled to 1.5 days’ paid leave to support a partner undergoing fertility treatment.*This should cover women as well in same-sex relationships.
  • Royal & Sun Alliance, Scottish Widows, and the National Radiological Protection Board all provide 10 days per year paid time off for fertility treatment.

An employee wants time off to attend tribunals as a lay member – what are the employee’s entitlements?

Under the Employment Rights Act, employees are entitled to reasonable time off to for public duties.  Tribunals are included in the act as falling within this category.  The Act does not require time off to be paid.  However, the Green Book does entitle local government employees to paid time off for public duties.  In determining what is reasonable, the authority should take into account the time the employee has already taken, the impact on the service of the employee’s absence etc.  One suggestion would be to allow the time as a trial period to see what impact the arrangement has. 

Where can I find information on the Working Time Directive?

Information on the Working Time Directive can be found on the Business Innovation and Skills website:

http://www.bis.gov.uk/policies/employment-matters/rights/working-time

What is the policy for staff unable to attend work due to adverse weather conditions and associated travel disruption?

If  staff are unable to attend work because of the travel disruption caused adverse weather conditions,  this should be treated as part of the employee's paid annual leave or, if necessary, unpaid leave. It may be reasonable to consider other options available which are used in situations when adverse weather conditions affect employees' ability to attend work, eg that employees could make-up these lost hours at another time, but only if the amount of hours lost are not too significant. 
 
As usual, fairness and consistency in how staff are treated is important, including making reasonable adjustments for staff who may be more severely affected because of disability.

What is the National advice on Industrial Action?

The LGE have issued an Industrial Action guide which will enable local authorities to assess the impact and implications of an industrial dispute, and to decide upon the appropriate response within the joint context of employment legislation and good industrial relations practice. Please click on the link below:

http://www.lge.gov.uk/lge/core/page.do?pageId=119711 and also view the recent circular Strike Guidance Circular 10Nov11.pdf