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Helpdesk

1 November 2011

Your questions answered by our experts: Pay whilst away on a course. Leave entitlement whilst off sick. Forced to take leave after riots.

If you have a question about your workplace rights, call our employment law specialists on 0800 3282673 in the UK or 1800 805272 in the Republic of Ireland or email helpdesk@tssa.org.uk
Hours: Monday to Thursday 8am–6pm Friday 8am–5pm

Boarded-up shop

Pay whilst away on a course?
Q. I have to go on a course next week. The actual training runs from 9am to 4.30pm every day, but as I’m forced to stay at the training centre shouldn’t I be paid for all the time I’m away?

A. In a recent judgment the Employment Appeal Tribunal has clarified the rules around the Working Time and National Minimum Wage Regulations. The position is that if you are just staying overnight you are not working, and so not entitled to be paid. On the other hand, we would argue that if you are set any “homework” to be completed in the evening, then you should be paid for the time doing that, as that is part of the actual course and therefore counts as “work”.

Leave entitlement whilst off sick
Q. I was off sick for the last three months of our leave year, which runs from April to April. I had some outstanding leave which I was unable to take. My boss now says that as I didn’t ask for it during the year I have forfeited it. How could I take leave when I was off sick?

A. Though many employers seem to think otherwise, the Employment Appeal Tribunal recently ruled that if a person is off sick they are presumed not to have been well enough to exercise their “right to enjoy a period of relaxation and leisure”. The EAT also ruled that this right applies without having to make a written request to carry forward leave. As I have said before, this will only apply to your statutory leave. Anything above that depends on your contract. As to what the position might be in the case of a fit employee who fails to make any request for leave during the whole of a leave year, it is suggested that they lose the right to take annual leave, because they will have had every opportunity to exercise the right to take it.

Forced to take leave after riots
Q. The shop I work in had its windows smashed in the recent riots. We had to close for two days while everything was cleaned up and the windows repaired. The manager said that as we couldn’t work we had to take the time off as part of our leave. As I have booked all my leave I refused – now they say I won’t be paid.

A. There are a few issues here. It will depend on your contract, but generally if you had been unable to get to work because there was no public transport or the police had cordoned off the area then you would not have been entitled to payment. As you turned up prepared to work but the employer could not provide it, you are entitled to be paid unless your contract says otherwise. It may be possible for your employer to insist on you taking your contractual leave (any leave granted to you over and above the statutory 28 days), again depending on your contractual arrangements for the allocation of leave. In your case, as you only get the statutory leave anyway, the Working Time Regulations apply – the employer can insist you take leave, but must give twice as much notice as the number of days you have to take. That wasn’t the case here, so you are entitled to be paid for the two days.

Time limit on investigations
Q. I have been suspended while the company carries out an investigation. How long are they allowed to take before they have to conclude the formal investigation?

A. A company has a duty to investigate matters to a degree commensurate with the severity of any possible disciplinary sanctions, so while we would expect an investigation to be concluded as quickly as possible, we would also insist on it being thorough. Therefore the length of the investigation would depend on the individual circumstances.

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