HR for education

Employers must ensure that term-time workers receive at least their statutory minimum annual leave entitlement. The employer can designate periods during the school holidays to be the term-time worker’s annual leave.

A worker’s entitlement depends on whether or not they fall within the definition of either an “irregular hours” or “part-year worker”. Term-time workers are likely to be part-year workers, including where they are paid in equal instalments throughout the year.

For these workers, entitlement accrues throughout the year, at the rate of 12.07% of hours worked in each pay period. Where the worker is contractually entitled to more than the statutory minimum holiday, holiday accrual should be calculated using a different percentage rate. This is calculated by expressing as a percentage the annual holiday entitlement divided by the number of working weeks in the year.

Employers can choose to pay rolled-up holiday pay for these workers.

Yes, an employer can anonymise witness statements obtained during a grievance or disciplinary procedure. However, while there is no legal requirement to disclose the identity of witnesses, failure to do so undermines the employee’s right to challenge properly the evidence. Employers have an obligation to undertake a fair disciplinary procedure, which will include attempting to obtain reliable, corroborated evidence. The employer should explore the witness’s reasons for wishing to remain anonymous and decide whether or not it should disregard such evidence or consider it as holding less weight than statements from named witnesses.

If anonymous evidence is to be used, the employer should seek to corroborate the evidence and to establish at least one identifiable witness, even if this person is not a direct witness to events, such as a manager who has been provided with information from witnesses. It should consider allowing the employee to formulate written questions to be put to the anonymous witness through the employer. The witness’s answers can then be examined during the disciplinary process.

The employer should make the witness aware that their anonymity cannot be guaranteed. If the matter results in legal proceedings, they may be subject to a witness order requiring their attendance at the tribunal to provide evidence in the proceedings.

Where an employee has exhausted their sick pay, whether they are entitled to payment during their notice period is a complicated question. It depends on the amount of contractual notice when compared to statutory minimum notice. An employee who is to be dismissed on the grounds of ill health is always entitled to receive notice. This will be the greater of the contractual notice period and the statutory minimum notice period.

Section 88(1)(b) of the Employment Rights Act 1996 provides that the employee should be paid full pay for the statutory minimum notice period in cases where they are incapable of work because of being absent on ill health grounds. However, under s.87(4) this right does not apply where the contractual period of notice exceeds the statutory minimum notice period by at least one week. This principle is perhaps best illustrated by way of two examples.

Employee A has been employed for five and a half years when they are dismissed on long-term incapacity grounds. Under their contract of employment they are entitled to receive one month’s notice. In this case, the statutory minimum notice period of five weeks exceeds the contractual notice period of one month, so A must be given five weeks’ notice of termination of employment and, in accordance with s.88(1)(b), they must receive this at the full pay rate.

Meanwhile, employee B has been employed for two years when they are dismissed due to long-term ill health. Under their contract of employment they are entitled to receive four weeks’ notice. In this case, the contractual notice period of four weeks exceeds the statutory minimum notice period of two weeks, so four weeks’ notice of termination of employment must be given. However, as the contractual notice period exceeds the statutory notice period by at least one week, this means that s.87(4) is triggered and there will be no obligation for it to be paid at full pay. If the employee’s entitlement to sick pay has already been exhausted, no pay at all will be due during the four-week notice period.

The Disclosure and Barring Service (DBS) maintains lists of people barred from working with children and vulnerable adults. An employer that knowingly allows a barred individual to work in a “regulated activity” with children or vulnerable adults commits a criminal offence. Where a post amounts to a regulated activity, the employer can apply for an enhanced DBS check, which can include information held on the lists of barred individuals.

Employers, local authorities and employment businesses and agencies are under a duty to pass information about certain individuals to the DBS. The duty to refer information arises where an employee in a regulated activity has resigned or been dismissed, or would or could have been dismissed, because they have harmed, or may harm, a child or vulnerable adult.

The 2006 Act applies to England and Wales and to some extent to Northern Ireland. The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (SI 2007/1351) largely replicates provisions in the Act that do not extend to Northern Ireland. Separate arrangements apply in Scotland.

No, the advice given on a fit note is not binding on the employer. Where a healthcare professional advises on the fit note that the employee may be fit for some work, they will give advice about what the employee can and cannot do at work. The employer should discuss with the employee what changes could be made to help them return to work, but it is ultimately the employer’s decision how to act on the advice, taking into account its wider legal obligations.

If the employer is unable to implement the suggestions on the fit note, it should explain this to the employee and treat the fit note as if the healthcare professional had advised that the employee is “not fit for work”. The employee does not need to return to the healthcare professional to confirm this. Alternatively, the employer could request that the employee return to the healthcare professional for advice on alternative suggestions for adjustments. The employer could also seek specialist occupational health advice.