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HR & EMPLOYMENT LAW Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Do You Have to Grant a Request to Cancel a Holiday Due to the Greek Wildfires?
The recent wildfires in Greece have led to holidaymakers, airlines and package holiday firms cancelling trips to affected regions. The wider heatwave in Europe has also led to holidaymakers rethinking their plans. For businesses, this has raised the question of how you should respond to employees’ requests to postpone a booked period of annual leave. We explain the law in this area.
The legal position is that there’s generally no right for employees to cancel or change annual leave once you’ve agreed to their request. You can choose to let them move their dates and there may be practical benefits to doing so. This will clearly maintain good working relations with the employee and a colleague may be keen to take the freed-up slot. However, this is entirely at your discretion.
If moving the date is going to cause the business difficulties, you’re entitled to refuse the employee’s request. You may have already arranged for someone to cover their absence or the individual may have a lot of holiday entitlement to use up. The new proposed date may not be convenient or may be too short notice – or if the employee doesn’t have a replacement date in mind yet, you may be worried about the uncertainty this creates. There’s no right to take a holiday abroad, so you could require the employee to stick with the date they booked and have a staycation instead.
Cancellations Due to Sickness
There is one exception to this general rule. If an employee falls sick just before or during their holiday, you should let them convert their annual leave (or remaining annual leave) to sickness absence and take the holiday later. They can also potentially carry over the leave for up to 18 months after the end of the holiday year if they can’t take it earlier.
This could raise the prospect of an employee ‘pulling a sickie’ as a way to move, or take extra, annual leave. Some ways to reduce this risk are to:
- Require the employee to provide medical evidence. They’ll need to obtain this anyway if they want to make a claim under their holiday insurance. If they don’t have insurance, you should reimburse any charge they incur for a doctor’s note obtained at your request.
- Have a policy which makes clear the right to reschedule and carry over annual leave due to sickness only applies to the first 4 weeks of leave granted under EU law. Once the employee has used these up, explain they can’t reschedule the remaining 1.6 weeks.
- If you offer contractual sick pay, reserve the right to grant only statutory sick pay when a holiday is converted into sickness absence.
- Remind them that the sickness will be added to their absence record.
- Inform them that they will have to attend a back-to-work interview with their manager.
If you have solid grounds to believe that the employee has misled you, you could take disciplinary action but it will often be difficult to get proof.
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HEALTH & SAFETY Emma Lampka, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Get to Grips with Manual Handling and Improve Your Organisation’s Bottom Line
In 2021/22 there were an estimated 477,000 workers affected by work-related musculoskeletal disorders (MSDs). This represents 1,430 per 100,000 workers and accounted for 27% of all work-related ill health. In 2021/22, work-related MSDs resulted in 24% of all days lost due to work-related ill health. Can you calculate what a 24% absence rate would equate to within your business and how much this would impact your bottom line?
As an employer, you must protect your workers from the risk of injury and ill health from hazardous manual handling tasks in the workplace which, in turn, will help your business by reducing sickness absence and improving productivity.
Understanding Manual Handling
Manual handling means transporting or supporting a load by hand or bodily force. It includes lifting, lowering, pushing, pulling, moving or carrying a load. A load is a movable object, such as a box or package, a person or an animal, or something being pushed or pulled, such as a roll cage or pallet truck.
Manual handling risks can be found across all kinds of workplaces – on farms and building sites, in factories, offices, warehouses, hospitals and while making deliveries. Heavy manual labour, repetitive handling, awkward postures and previous or existing injuries or conditions are all risk factors for developing MSDs. Work may also make worse an injury which was not caused at work, such as a sports injury.
Comply with the Law on Manual Handling
The Management of Health and Safety at Work Regulations 1999 require you to assess the risks to the health and safety of your workers. Where this identifies hazardous manual handling of loads, you should also comply with the Manual Handling Operations Regulations 1992 (the Manual Handling Regulations).
The Manual Handling Regulations set out a clear hierarchy of measures you must follow to prevent and manage the risks from hazardous manual handling:
- Avoid hazardous manual handling operations, ‘so far as reasonably practicable’.
- Assess the risk of injury to workers from any hazardous manual handling that can’t be avoided.
- Reduce the risk of injury to workers from hazardous manual handling to as low as reasonably practicable.
1. Avoid
Some examples you should employ to avoid manual handling are:
- Provide mechanical aids to undertake the lifting activity.
- Bulk delivery to be delivered at point of use.
2. Assess
Where you cannot avoid manual handling, you must conduct an assessment of the risks to workers from manual handling taking into special consideration young workers and pregnant employees, due to the inherent additional risks manual handling may pose to these particular employees.
When assessing the risk you must consider the Load, the Individual doing the task, the Task being carried out and the Environment in which the activity is being carried out (an easy way to remember this is using the TILE acronym).
3. Reduce
Where you are unable to avoid manual handling activities and you have conducted a suitable and sufficient risk assessment, you should reduce the risk of injury to workers from hazardous manual handling as low as is reasonably practicable.
Examples of ways to reduce the risk are:
- Reduce the weight of the item to be moved.
- Implement a team (‘two-person’ lift) if required.
- Provide manual handling training for your employees to prove good techniques for lifting and handling.
- Ensure your employees meet their statutory requirements by making them aware of their duties:
- Follow the safe systems of work that are in place for their health and safety.
- Use properly any equipment provided for their health and safety.
- Co-operate with you on health and safety matters.
- Inform you if things change or they identify hazardous handling activities.
- Take care to make sure their activities do not put others at risk.
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PAYROLL Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Understand Negative Earnings and How this Affects Both Employer and Employee
HMRC have recently published guidance on negative earnings, explaining what you should do if an employee is in the position of having negative earnings.
What are Negative Earnings?
A negative earnings situation arises when an employee has to pay back some or all of the earnings from their employment to their employer or ex-employer. This will most frequently arise if the employment contract contains a ‘clawback’ provision, for example, requiring the employee to repay a signing-on bonus if they do not stay in the employment for a prescribed period of time.
A repayment by the employee is classed as negative earnings if:
- The original payment of earnings from the employer to the employee was correct and did not result from an error, such as an overpayment of wages.
- The payment from the employee to the employer arose ‘out of the employment’. This will be the case where the employment contract requires the employee to repay the money if certain circumstances occur.
Your Actions as the Employer
If you receive a repayment from an employee or ex-employee which counts as negative earnings, you should not change the tax and National Insurance deducted when the payment was originally made. At the time that the payment was made, it was made correctly; there was no overpayment or error at that time. As a result, there is no relief for the National Insurance deducted from the payment or for the associated employer’s National Insurance as these were correctly calculated and paid at the time. Likewise, income tax cannot be repaid via PAYE.
In this situation, you should tell your employee that:
- You cannot amend your previous payroll records because they represent a correct record of the payment at that time.
- You cannot adjust the employee’s payroll record for the year in which the repayment is made.
The employee may, however, be due, a tax refund as the repayment will reduce their total earnings for the tax year. However, you will need to advise your employee to contact HMRC.
It is important to note that the rules for dealing with negative earnings are different to those for dealing with an overpayment made in error to an employee and which the employee has paid back. In the case of an overpayment, the tax and National Insurance position must be corrected when the overpayment is repaid.
Understand the Employee Position
If an employee has negative earnings, for example, because they have repaid a bonus to their employer or to a former employer, they will need to check the impact that this has on their overall earnings for the tax year and whether they are due a tax repayment for that year. If they are, they will need to claim this back from HMRC rather than from their employer or ex-employer.
If the employee is within self-assessment, the position will be corrected when they file their self-assessment return for the year, so that they pay tax on the correct amount of their earnings for the tax year taking the repayment into account. If the employee does not need to complete a self-assessment return, they can write to HMRC to claim a tax refund.
If the repayment is large and exceeds the employee’s earnings for the year, the employee will have a loss. This can be set against any other earnings they have for the year or carried back and set against the earnings of the previous year. Relief for the loss and any associated tax refund must be claimed either via the employee’s self-assessment tax return or by writing to HMRC.