Legal Q & A

Moore head of employment at Osborne Clarke OWA answers questions regarding time
off work for new fathers

Q  One of our employees is an
excited father-to-be. He wants some time off when the baby is born. What are
his options?

A  He has a variety of options.
Obviously, he can use some annual leave. If he has one year’s service, he can
also take unpaid parental leave of up to four weeks. Otherwise, he only has a
right to unpaid leave to assist his partner at the birth itself, and he would
have to return to work soon afterwards. He may be interested to know that the
government is proposing to introduce two weeks’ paid paternity leave in 2003,
at a rate of £100 a week. This may be of assistance when his next child is

Q  One of our managers recently
dismissed an employee in front of his colleagues. He was humiliated by the
experience and has since suffered a nervous
breakdown. I don’t think he
will be able to start a new job for a long time. He has threatened to sue us
for a six-figure sum. Will we have to pay such huge damages?

A  It is unlikely. However, you may
well have to pay compensation for unfair dismissal, but this will be less than
£60,000. How much he gets may depend on how soon he gets an equivalent job. The
employee may also bring a personal injury claim but is unlikely to succeed if
he had no previous psychiatric problems. The House of Lords has recently
considered whether, in these circumstances, an employee should be permitted to
bring a claim for breach of contract – ie, breach of the employer’s contractual
obligation to maintain the employee’s trust and confidence. It decided that
this obligation should not apply in a dismissal. Accordingly, your ex-employee
is unlikely to recover six-figure damages.

Q  I work in the computer
industry. We aim to have a paperless office and I have been asked whether we
can put our staff handbook on the intranet rather than in bulky folders. Can we
do this?

A  There is no reason why not.
Certain terms and conditions of the employees’ contracts of employment should
be set out in writing, but what you propose should cover your obligations. It
sounds a good way to ensure that all staff have easy access to an up-to-date
handbook. You need to be careful, however, when it comes to changing terms
within your intranet handbook which govern, for example, holidays and sick pay
entitlement. Whether – and how – you do this will depend on the contractual
arrangement with each employee.

Q  We employ a night watchman. He
is allowed to sleep during his shift, although he has to wake if the alarm is
raised. We pay him the national minimum wage, but not for the time when he is
asleep. He says that we should pay him for the entire shift. Is he right?

A  Yes. The Scottish EAT has recently
confirmed that those who are on duty at their place of work should receive the
National Minimum Wage even when they are asleep. The only exception to this is
if the worker is given specific time off in which to sleep, so that he is not
on duty during that time. Your employee has to get up when the alarm is raised
and so he is still on duty when he is asleep.

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