Q & A

Legal questions and answers

Q With the World Cup imminent, I am worried that some employees are going
to take days off sick to watch the England games, or come to work drunk. Is
there anything I can do?

A You will have to look at your sickness and disciplinary policies
very carefully to see what the position is on ‘sick’ days. If you only require
an individual to self-certify on the first days of sickness, you are going to
have to accept their word that they were sick or challenge them over it.
Realistically, challenging them is going to be extremely difficult unless
someone has seen them in the pub watching a match.

You could set out your policy in advance, that absence from work during the
World Cup period will require a doctor’s certificate (any cost involved in
obtaining one should be at the employer’s expense). Failure to produce one
could then result in disciplinary action for unauthorised absence.

If employees turn up to work drunk or return to work following the game,
this will be a misconduct issue.

If you suspect the individual has an addiction problem from his or her
history, or from facts arising during the disciplinary process, then it may not
be appropriate to continue to treat the matter as a disciplinary issue, but to
apply a substance dependency policy if you have one.

Q I have had an employee off sick for 18 months. He has just asked to
take holiday and wants to be paid. Do I have to pay him?

A A recent case now means employees off on long-term sick leave are
entitled to be paid in full for their statutory holiday entitlement. Whether or
not they are also entitled to be paid for the contractual element of their
entitlement will depend on what their contract says, although it is possible to
stop contractual holiday accruing while the employee is off sick.

Under the Working Time Regulations, statutory holiday must be taken in the
year in which it accrues, otherwise it is lost. So this case does not open the
door to claims covering a number of years if an employee has not already asked
to take holiday. Also, the individual off sick must still request holiday in
the normal way either under the contract, or the Regulations, whichever is

Q Do I have to give my employees a paid day off for the Queen’s Jubilee
Bank Holiday?

A Two years ago there was an extra day’s Bank Holiday for the
Millennium celebrations and this year there is an extra day on 4 June, but the
status of these days is the cause of some confusion. There is no general
entitlement under English law to be paid for time off on Bank Holidays and the
position is governed by the employee’s employment contract.

If the contract allows for all Bank Holidays to be paid, then the extra ones
will be included as and when they are announced.

If, however, the contract names the Bank Holidays, for example, Christmas
Day, Boxing Day, etc, or gives the number of Bank Holidays that the employee is
entitled to, then there is no right to be paid for ‘extra’ Bank Holidays, so
check your contracts carefully.

David Green is head of the employment and pensions unit at Charles

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