Legal Ease

The European Court of Justice (ECJ) has ruled that an employee can claim back their annual leave entitlement if they are sick during a holiday period. This decision applies to employees who become sick before and during booked holiday. This decision could prove problematic for employers, in particular for employers that have shut-down periods. If an employee is sick during a shutdown period, an employer will be required to accommodate additional holiday time outside the shut-down period.
To minimise abuse of this decision we advise employers to review their Sick Absence Policy and Sick Pay Schemes and amend accordingly. Your policy should be clear as to what steps an employee must follow to report themselves as sick, should they become sick either before they go on holiday or whilst on holiday and wish to reclaim the holiday time. For example, do they follow your normal notification procedure? Should they gain a sick note even though they have not been sick for 7 calendar days? Do you only pay Statutory Sick Pay for this type of sickness? Do you follow up with a return to work interview immediately after the employee returns from sick absence?
Having amended your Polices, you should ensure that you communicate the changes to your employees. With any contractual changes it is always advisable to ask employees to sign that they have read, understood and agree to comply with the change.

BELT & BRACES IMMIGRATION POLICY
As reported in last months Legal-Ease The Attorney General (AG) has recently been fined £5,000 for employing a worker illegally as her housekeeper did not have permission to work in the UK. Illegal working covers those:
· without permission to live in the UK
· who do not have their right to undertake the work in question
· who exceed any stipulated limitations on them working
· whose visas have expired
In order to minimise your risk, employers should have a robust Immigration Policy in place which is applicable to all employees and prospective employees. The Policy should contain a number of points, this includes carrying out the required document checks before the commencement of employment – many employers leave it until the new employee’s first day and quite often later which increases the risk of the checks being missed. Checks must be repeated at least every 12 months for employees who have limited rights to work in the UK. These should be diarised to ensure they are not missed.
The UK Border Agency’s website http://www.ukba.homeoffice.gov.uk/ will provide you with a list of the documents which are acceptable for immigration clearance.
Any offer of employment must state that the offer is subject to the prospective employee being able to evidence their right to work legally in the UK. It should also state that if satisfactory evidence is not provided, the offer of employment will be withdrawn. The job offer should include a paragraph similar to the following:
“It is a conditional term of this job offer that an employee of this Company has permission under UK immigration law to undertake this employment and where applicable, continue to hold valid and appropriate UK immigration clearance or leave to remain working in the UK.
You must produce original documentary evidence of your right to undertake this employment prior to your start date. The onus is on you to produce the evidence and if this is not received prior to your start date, the Company reserves the right to withdraw this job offer. Should your immigration, for any reason, be revoked the Company reserves the right to terminate your contract of employment.”