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Toilet clock off lands employers in tribunal

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With the summer holiday season over and children back to school, employers are being urged to check where they stand following a spate of recent tribunals covering a mix of potential pitfalls, including holiday pay for employees on long term sick leave; clocking employees use of the toilet and redundancy treatment of mothers returning from maternity leave. First under the spotlight are companies who make employees clock out and back in again when they go to the toilet, a practice which will shortly be reviewed by an Employment Tribunal. Said employment law expert Alex Dean of Gepp & Sons solicitors in Chelmsford: "This practice raises a number of issues. For example, deductions for loo breaks could result in workers' pay falling below the minimum wage, and employees who are pregnant or who suffer from certain medical conditions might claim that they are being discriminated against because they have to go to the toilet more frequently than others." Another recent case has confirmed that an employee who is on long term sick leave is still entitled to holiday. This follows last year's cases, Stringer v HMRC and Ainsworth v Commissioners of Inland Revenue which decided that where an employee is absent due to illness, they are entitled to payment in lieu of any holiday that they are unable to take or carry forward. Logically the rule applies whether the employee is sick for a week or for a year, as was shown when TAP Freight was recently ordered to pay an ex-employee £4,000 to cover holiday entitlement that the employee was entitled to whilst on long term sick leave. Added Alex Dean: "If an employer sacks an employee who has been on long term sick leave because it is finally decided that the employee is unable to return to work, the employee may be entitled to a large sum for accrued holiday pay. Similarly, when an employee returns to work after long term sick leave, they may be entitled to a lengthy period of holiday carried forward, or to payment in lieu." The case of Denysenko v Credit Suisse from earlier this year serves as a reminder to employers and their HR departments of how not to deal with a redundancy situation when an employee returns from maternity leave. Oksana Denysenko was employed by Credit Suisse and when she returned to work after maternity leave, she was told that she must share her responsibilities with the person who had been doing her work in her absence. Seven months later she was told that there was no need for two people to do the job and she was made redundant. During the redundancy consultation the Bank raised doubts about Ms Denysenko's ability "to put in the hours"; the Tribunal found that this indicated that they were making unfair assumptions about her fitness for the job because of her role as a mother. The Tribunal also found that it was unfair of the company to select Ms Denysenko for redundancy rather than her replacement, as the replacement was only offered the job because of the gap created by the maternity leave. "In short, if an employer takes on someone temporarily to cover maternity leave, they cannot retain the replacement and sack the original employee without laying themselves open to accusations of discrimination and unfair dismissal," commented Alex Dean. • For additional information please contact: Alexandra Dean of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.

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