One of our operators broke his arm in a kayaking accident last weekend. He is unable to perform the assembly duties that are an essential part of his role and has been off sick for the past week. However we do have some clerical duties and other non core jobs that he could take up. Where do I stand if the individual declines these tasks and says he is still unable to work? Can I make this an instruction if I need to?
Whether it is reasonable to require an employee to perform alternative duties whilst temporarily unable to undertake their substantive role will depend on what their contract of employment states, and the nature of the alternative duties.
If the contract allows the company to require other duties of your operator and the alternative duties are reasonable, the operator is suitably qualified/trained to carry them out and they are physically capable to do so, then a requirement to return to work to carry out those tasks would generally be considered a reasonable instruction.
In this scenario, if your operator refuses to carry out the instruction without good reason, that refusal could legitimately give rise to disciplinary action. This would be on account of failure to carry out a reasonable management instruction.
If, however, your operator’s contract states that they are employed solely to carry out the duties of an operator and there is no flexibility in the contract to require alternative duties, the agreement of your operator to carry out the temporary alternative duties would need to be gained. Your operator may be willing to agree to ensure an early return to work, particularly if they are entitled only to statutory sick pay during absence or where company sick pay is not paid if suitable alternative work is refused.
If your operator nonetheless refuses to return, it would not be considered reasonable in this scenario to take disciplinary action in response to that refusal. To do so could give rise to a breach of contract, potentially entitling the employee to resign and claim they have been unfairly constructively dismissed. It is therefore suggested that the contractual position is first established before deciding on your strategy for requiring/requesting your operator to return on amended duties.We have had a difficult start to the year and it's very likely that we will be making around a dozen redundancies this summer. If we don't receive any requests for voluntary redundancy (we don't anticipate any) then my colleague is vociferous that we base the decision on performance/attitude. They say this should be seen as an opportunity to separate the wheat from the chaff. What does the law say?
An employer generally has wide discretion on the selection criteria it chooses to adopt in a redundancy exercise.
Performance is often applied as a redundancy criterion, especially where it is aimed to maintain appropriate skill and knowledge amongst the workforce for the current and future needs of the business. However, for selection criteria to be fair, they must not solely depend on the opinion of the assessor and be capable of independent verification. A criterion of performance should be objectively applied, for example, by reference to previously agreed appraisal documentation. However, a criterion of attitude is often considered to too subjective to be deemed fair, particularly where it forms a significant part of the overall assessment.
Even where appropriate selection criteria are used, the termination of employment by reason of redundancy can still be deemed unfair if it is found that a genuine redundancy situation did not exist or the procedure adopted in implementing that redundancy was unfair. If challenged, it is for the employer to establish that the real reason for the dismissal falls within the statutory definition of redundancy. The background to the redundancy will often be examined by the tribunal in this respect. If it is found that redundancy was not the genuine reason, the dismissal is likely to be deemed to be unfair.
Whilst performance may therefore legitimately be used as a redundancy assessment criterion, usually in conjunction with other objective criteria, it should be ensured that the company can justify the genuineness of the redundancy exercise. The needs of the business as a whole and workflow will often be important evidence in this respect. An exercise designed simply to remove poor performers from the business without there being any genuine redundancy situation is unlikely to withstand the scrutiny of the tribunal if challenged.
60 second guide to: holiday pay
The issues surrounding what should be included in holiday pay keep rumbling on and my firm Eversheds is at the heart of the debate by representing British Gas in the leading case of Lock v British Gas which is due back in court in front of the Court of Appeal in July of this year.
A number of issues are still to be decided, however. The law, as it stands today, is that holiday pay for the first 20 days of each holiday year, being that element governed by the Working Time Directive, should include not only basic salary, but other elements of “normal remuneration”. Where there is no fixed pattern of work, employers have for many years calculated holiday pay based on the last 12 weeks’ pay. These employers are unaffected by these decisions. Where there is a fixed pattern of work employers are required to decide what elements of remuneration fall within the definition of “normal remuneration”
It appears that all types of overtime (including voluntary overtime, although this is yet to be confirmed), if worked frequently and regularly needs to be included in holiday pay as well as commission. Productivity, attendance and performance bonuses (individual and team) are all likely to have to be included in holiday pay. Annual bonuses are less clear cut. If they are based on company performance, rather than individual performance, they are less likely to be included in holiday pay.
The reference period for the calculation of average holiday pay is also subject to further clarification. UK law has traditionally adopted a 12 week reference period, however, recent court decisions have held that it should be a representative normal period. In Lock a 12 month reference period has been suggested.
Many employers are still waiting to see the outcome of the current litigation before deciding what to include in holiday pay. Others have opted to reach an agreement with the workforce with an option to review should the law develop significantly.
