Legal questions and answers

David Marshland tackles readers questions

Q I have some part-timers who are employed as cleaners for about 10 hours a week. Unlike full-timers, they are not given the chance to join a medical expenses plan. Should they be allowed to join?

A If there are some full-time cleaners who are offered membership then yes, they should be offered membership, as a minimum on a pro rata basis so far as the premium costs are concerned. It would not be possible to offer benefits on a pro rata basis. New regulations were introduced last July setting out the general principle that a part-timer has the right not to be treated less favourably than his or her full-time comparator in respect of terms and conditions of employment.

Q I have full-time and part-time staff doing the same work. The part-timers deal with peak weekend work and this work has now gone. Can I select the part-timers for redundancy or must I make my selection across the board?

A Employers must be able to justify selection for redundancy on an objective basis and not select part-timer employees just because they are part-timers. In this situation the selection of the part-timers may be objectively justified. But you should still go through the proper redundancy selection procedure and not just assume that selecting the part-timer employees is the only option.

Q Our company does not provide any rest room facilities for employees. Is there any legal requirement to do so?

A Yes, there are regulations which require suitable and sufficient rest facilities at readily accessible places. This means a room or area and must include: an area protecting a non-smoker from tobacco smoke; suitable facilities for pregnant or nursing mothers to rest in and; where workers regularly eat meals at work, facilities for workers to eat meals. The regulations can be enforced by HSE inspectors.

Q We have an insurer who is refusing to release a report to us and one of our employees in relation to our refusal to admit a PHI claim. The report was obtained by the insurer for the purpose of the claim. The insurer is saying it cannot disclose the report under Access to Medical Reports Act 1988. Is this correct?

A No. The report is not covered by the Act, as it was not prepared by a practitioner responsible for the care of the employee or for insurance purposes (the definition in the Act requires that the employee has entered into an insurance contract and the contract is with the employer, which is usual). There is nothing to stop the insurer disclosing the report and it obviously has something to hide.

Q Under the Working Time regulations do holidays accrue during additional maternity leave?

A There is an argument that holidays do continue to accrue under the regulations (and not the contract). A holiday entitlement of 20 days a year does not exclude those on maternity leave. Credit should be given for contractual leave and bank holidays taken during a holiday year that includes a period of maternity leave.

By David Marshland of WM Mercer’s Employment Law Consultancy

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