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Childcare Counsel - sick pay and employment law changes

Our resident legal agony aunt, Caroline Robins, principal associate at Eversheds, answers your questions on matters relating to employment law

I’ve just taken over a nursery and learnt employees are obliged to take holiday when they are sick because the nursery does not pay sick pay. Is this legal?

No. As a minimum, eligible workers are legally entitled to statutory sick pay (SSP) when they are sick. They may also be entitled to a higher amount of sick pay, depending on the terms of their contract. Requiring workers to take holiday when they are sick is likely to be deemed a breach of the Working Time Regulations 1998.

Sometimes employees choose to take holiday during sick leave, particularly where the sick pay is less than the holiday pay. As long as this is their choice and it is not imposed by the nursery, this is lawful. However, the nursery will need to take account of health and safety implications in determining whether to allow this practice.

I’ve heard there are some significant employment law changes this year…

2018 will see a number of areas of development in employment law, including significant data protection changes [see article, right], extension of workers’ rights (and pay entitlement), tax changes on termination payments and further legal clarifications regarding worker status. Further, now that Employment Tribunal fees have been abolished, employers are likely to see an increase in employees enforcing their rights.

The national minimum wage will continue to rise. NMW compliance continues to be closely monitored by HMRC and the risk of penalties for default is now higher than ever. Even nurseries paying above the NMW level can find that their pay arrangements fall foul of the regulations, especially if they operate annualised hours contracts or four-weekly pay arrangements.

From May, the GDPR will implement significantly tighter controls over data storage and use. Employers will need to ensure that appropriate practices and procedures are in place and that these extend to payroll and benefits providers to whom they outsource data. Significantly higher financial penalties will apply for non-compliance and nurseries should therefore consider what personal data is retained, why and how transparency of approach can be achieved and maintained.

On another note, look out for a number of key court cases that are anticipated to be determined during 2018, including in relation to employment status and gender equality over shared parental leave and pay.

  • To ask Caroline a question, email hannah.crown@markallengroup.com