FAQ's

Under the Employment Rights Act employees must be provided with a written statement of employment particulars (terms and conditions of employment). The Act sets out what must be included, but does allow some particulars to be in another document. Written employment contracts usually cover additional issues. The initial statement of employment particulars must be provided no later than two months after their employment begins.

We would recommend that all employment terms and conditions are issued before starting, and certainly no later than day one.

The current National Minimum Wage rates are:

£10.18 an hour for workers aged 21 to 22;
£7.49 an hour for workers aged 18 to 20;
£5.28 an hour for workers aged 16 to 17;
£5.28 an hour for apprentices;

with the National Living Wage for 23 years & over at £10.42 an hour.

From 1st April 2024, the National Minimum Wage rates will be:

£8.60 an hour for workers aged 18 to 20;
£6.40 an hour for workers aged 16 to 17;
£6.40 an hour for apprentices;

with the National Living Wage for 21 years & over increasing to £11.44 an hour.

Employers have discretion when designing their benefit plans and can make eligibility distinctions. These differences should only be based on a sound employment-based reason, decision-making authority and responsibility, and applied to all similar level/category of employee. Examples of employment-based reasons include length of service, or competitive market pressures.

Statutory maternity pay (SMP) is currently payable for a period of up to 39 weeks.

There are two rates of SMP. For the first six weeks, SMP is paid at the higher rate, i.e. 90% of the employee’s normal weekly earnings. For the remaining 33 weeks, SMP is paid at the lower rate, now £172.48 a week (from April 2024 £184.03) or 90% of employee’s weekly earnings if this is less than £172.48 per week (from April 2024 £184.03).

An employee who is on long-term sickness absence may wish to book a period of annual leave in order to receive full pay for that period, for example if he or she has exhausted all entitlement to sick pay, or is receiving only statutory sick pay.

The law does not prevent employees from taking annual leave while on sickness absence. It may be in an employer’s interests to agree to an employee’s request to take annual leave, to avoid further accrual of significant amounts of leave while on sickness absence. If refused, the employer would have to allow the employee to take the accrued annual leave when they return to work (even if this means carrying it over to the next leave year), or pay the employee the accrued holiday pay on termination of employment. Sometimes holidays are part of the recovery process.

Whilst the employee is on holiday, their sick leave and pay is suspended for the duration. If they are only receiving SSP then under the rules of limited SSP, when they return from holiday the SSP resumes immediately.

The fact that an employee is working elsewhere while on sickness absence could be evidence that the sickness absence is not genuine, but this is not necessarily the case. It would depend on the reason for the employee’s sickness absence and the differing nature of the two jobs.

The employee’s illness may mean that they are unable to perform their normal work but they could perform a very different type of job. There is nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying out work for another employer in a job that he or she is fit to do. The employer should fully investigate the facts, which includes talking to the employee before deciding whether or not to consider taking formal action against the employee.

We would recommend that all employment terms and conditions are issued before starting, and certainly no later than day one.

You don’t have to pay Statutory Sick Pay (SSP) for any qualifying days the employee was late providing relevant medical certification, after you have specified when they should have told you (unless there’s a good reason for the delay).

You can also withhold SSP if the employee has recently drawn a state benefit, such as maternity allowance or Employment and Support Allowance, or, is being held in custody. A certificate may indicate a reason that does not equate with a justifiable absence from work, so an employer may refuse to accept the evidence as being appropriate.

However, HMRC guidance does state that “a doctor’s statement is strong evidence of incapacity and should usually be accepted as conclusive, unless there is more compelling evidence to the contrary.” In other words it is a low threshold.

Flexible working is any change in an employee’s working pattern i.e. normal working hours or days. It can include, amongst other things, part-time work, reduced hours, later or earlier start or finish times, compressed hours or working from home.

An employee with more than 26 weeks’ continuous service has the right to request a flexible working arrangement with their employer and the employer is under an obligation to properly consider that request fairly, and within a reasonable timescale, give reasons as to whether they accept or not the employee’s request.

Whilst an employer is not obliged to agree to requests for flexible working, the employer does have a legal duty to consider such requests seriously. An employer may refuse a request where there are sound business reasons for doing so. There are eight specific grounds for rejecting a request and these are the only reasons that may be relied on. They are:

1. The burden of additional costs.
2. Detrimental effect on ability to meet customer demand.
3. Insufficiency of work during the periods the employee proposes to work.
4. The effect on other staff.
5. Recruitment difficulties.
6. If the change would affect the quality currently provided.
7. If performance could be negatively affected.
8. Planned structural changes.

To be eligible to apply, the employee must have a minimum of 26 weeks continuous employment, and must have not made an application for flexible working during the last 12 months.

The most important thing is to follow the proper procedure and to give the request serious consideration i.e. not ‘going through the motions’. We would suggest that if you do agree, do it on a trial period initially as thereafter any flexible working change is otherwise permanent.

No, if the request is for a “continuous” period of Shared Parental Leave. If, however, the request is for “discontinuous” periods of Shared Parental Leave, then the employer can turn down such a request if it cannot be reasonably accommodated.

We would recommend that all employment terms and conditions are issued before starting, and certainly no later than day one.

If employees have 2 years service, they are entitled to written reasons for dismissal, and they must be provided within 14 days when requested. It is however; always wise to put the reasons in writing in the dismissal letter regardless of service. We would always advise providing the reasons for dismissal clearly in writing.

Whatever their length of service, pregnant employees, or those on statutory maternity or adoption leave, are entitled to written reasons, without having to request it.

Employees are entitled to a statutory minimum period of 1 week’s notice for every year worked up worked up to a maximum of 12 weeks. So someone with 8 years service would be entitled to a minimum of 8 weeks’ notice, regardless of what their contract says.

The statutory notice applies after working for 1 month. Before this time, employees can be dismissed without any notice, unless the contract provides for more.

Contracts of employment may provide for a longer notice period than the statuary minimum, but it cannot be less.

A Settlement Agreement is a legally binding signed document between an employer and an employee. It is usual for the employer to provide a severance payment in return for your employee’s agreement not to pursue any claims to a tribunal or a court

There is an ACAS Statutory Code on Settlement Agreements that needs to be complied with regarding the process.

A further benefit of using a Settlement Agreement is that the circumstances around termination and/or the terms and payment offered will remain confidential. It has to be signed by the employee’s qualified legal advisor and it is normal for the employer to pay the legal advisor’s fee.

What you are talking about is now called a Section 111A discussion or a pre-termination negotiation.

The ACAS Guide state that as a rule, a minimum period of 10 calendar days should be allowed to consider the proposed formal written terms of a settlement agreement and to receive independent advice, unless the parties agree otherwise.

In some circumstances, not allowing a reasonable time might mean that the settlement discussions can be referred to as evidence in a subsequent unfair dismissal claim.

There will be a redundancy situation where a dismissal is necessary wholly or mainly due to any of the following:

• the employer’s business closes down;
• the employer relocates their place of business to a location beyond what may be considered reasonable to travel;
• the role is no longer required in the place where it was carried out;

NB: If the majority of the job activity still exists, then redundancy justification can be challenged.

If the people potentially affected are 20 or more but less than 100 in number, then yes you should be consulting for at least 30 days before any redundancies take effect.

If it less than 20 people affected, then you need to consult for at the very least two weeks but consultation should not be about time or number of meetings; it is about the quality of those consultative meetings in considering selection, terms and alternatives to redundancy.

It is not easy as the law recognises the employer’s right to determine the selection pool but it is not impossible. There are no fixed rules and employers have wide discretion. An employer needs to show that consideration was given to whether each job in question is unique or should be part of a selection pool of similar jobs.

Employees can challenge whether they should have been included or excluded within a pool and if it happens, the employer needs to demonstrate the justification for their actions.

£19,290 (30 weeks x £643) (£21,000 (30 weeks x £700) from 6th April 2024)

Compensation will be awarded for losses arising from act(s) of discrimination. An important part of this usually consists of lost earnings. A calculation is made of losses up to the date of the tribunal and may be projected into the future depending on how long the tribunal believes losses will continue. The assessment of losses will take into account earnings from a new position which will be deducted from the award. If the employee finds alternative work where the income level is the same or more, losses will stop from that point. There is no upper limit on the award of compensation in a case of unlawful discrimination.

In discrimination cases an award for injury to feelings will normally be made. This will fall into one of three ‘Vento bands’ depending on the severity and length of time of the suffering. Most cases will fall in the lower band of up to £8,000, but the most severe cases can go to £42,000.

Adult workers are entitled to:

• a rest period of not less than 11 consecutive hours in each 24-hour period during which they work for their employer, and
• an uninterrupted rest period of not less than 24 hours in each seven-day period during which they work for their employer.

Employers should ensure that workers can take their rest breaks but the law is not clear if an employer has to actually force them to do so.

The rules are very complex but ‘young workers’ (that is those over school-leaving age but under the age of 18): are restricted to 8 hours a day, 40 hours a week and they must get a 30 min break after 4.5 hours. No child should be employed under the age of 14 and must not:

• do anything other than light duties (a risk assessment will be required),
• work more than two hours on a school day (and not before 7.00 or after 19.00),
• work more than 12 hours a week, including weekend working.

There are more restrictions on children, including local bye-laws so it is worth checking with the Local Authority.

You should have a grievance procedure that complies with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The Code sets out how you should deal with complaints. If you lose an Employment Tribunal claim the compensation awarded could be increased by up to 25% if you unreasonably fail to comply with it.

Establish with the employee how they wish their complaint to be resolved, as in many cases employees do not wish to make a formal grievance, they just wish that their Manager will listen and respond to their concerns, or, behave more positively towards them.