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  • Overview

    Each month Thomson Snell & Passmore will be answering frequently asked questions from across the practice. Taking the lead this month, is Susanna Gilmartin a partner from our Employment team who has answered two common issues facing both businesses and individuals.

    Employment issues for Businesses

    Q: I recently refused an employee’s request to take holiday. On the first day that they requested to take off as holiday, they called in sick. How can I deal with this?

    A: Take care not to immediately make assumptions, if you have doubts about whether the employee is genuinely ill. Your starting position should be to give them the benefit of the doubt that their illness is genuine.

    We would however suggest that you make some initial enquiries - for example check social media platforms like Twitter or Facebook feeds and speak to colleagues at work as this may flush out the true position.

    If you acquire evidence that he is on holiday then on his return to work, invite him to an investigatory meeting. If the evidence suggests that the employee has been lying, then you may be entitled to discipline and dismiss – dishonesty is likely to amount to gross misconduct as would be obtaining financial advantage (payment of salary) by deception. Take care to follow your company’s disciplinary procedure and the ACAS Code of Practice.

    If the employee is able to produce a fit for work note covering his absence then you will have to accept that they were sick.

    Employment issues for Individuals

    Q: I am pregnant and I recently read that as my baby will be born after 5 April 2015 my husband and I can share my maternity leave and maternity pay to care for our child. If we want to do this, what do we need to do?

    A: In order for you both to be eligible to take Shared Parental Leave (SPL) you will have to have been employed continuously for at least 26 weeks by the end of the 15th week before your due date and will need to be employed by the same employer while you take SPL. Your husband will need to be able to show that during the 66 weeks before your baby is due he has been working for at least 26 weeks and earned at least £30 a week on average in 13 of the 66 weeks.

    You will be required to take your 2 weeks’ compulsory maternity leave after the birth of your child and your husband will still be entitled to take his 2 weeks’ paternity leave but after your 2 weeks’ compulsory maternity leave, you and your husband could opt into SPL and share the balance of your statutory maternity leave and maternity pay.

    To opt-in, you and your husband will need to submit a notice of entitlement and declaration of intention to take SPL with your respective employers at least 8 weeks before the start of a period of SPL.

    If you would like to find out more about topics above, or would like to discuss an employment issue in more detail please contact Susanna Gilmartin on 01322 422540, or another member of the employment team on 01892 510000.

    Article first published in Times of Tunbridge Wells on Wednesday 4th March 2015.

  • Related Services

    Elderly & Vulnerable Clients

    Our team of specialist lawyers has a wealth of knowledge and experience in providing advice on the law as it affects the elderly and vulnerable. We pride ourselves on offering sympathetic and practical advice to our clients.


    We act for businesses of all shapes and sizes and in many different sectors. Our advice covers all aspects of the employment relationship, helping to settle disputes, defending employment tribunal claims and providing immigration compliance audits.

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