A new employee has said he was entitled to an employment contract from day one. Is he right?

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.

What are the current minimum wage rates?

The current National Minimum Wage rates are:

£7.05 an hour for workers aged 21 to 24;
£5.60 an hour for workers aged 18 to 20;
£4.05 an hour for workers aged 16 to 17;
£3.50 an hour for apprentices;

The current National Living Wage for 25 years & over is £7.50 an hour.

From April 2018, the National Minimum Wage rates will increase to:

£7.38 an hour for workers aged 21 to 24;
£5.90 an hour for workers aged 18 to 20;
£4.20 an hour for workers aged 16 to 17;
£3.70 an hour for apprentices;

with the National Living Wage for 25 years & over increasing to £7.83 an hour.

Can I offer different benefits to different employees?

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.

Would an employer be entitled to make a deduction from an employee’s pay for 15 minutes after they were late for work?

An Employer is under no obligation to make a payment for wages unless the Employee turns up at the contractual start time, save where there is a contractual entitlement to be paid in these circumstances. The terms of the contract would need to be reviewed carefully in such a case.  This is the case irrespective of the reason for the Employee’s lateness, perhaps because of public transport delays. Whether this is good for Employee Relations is another matter.

What do I have to pay someone on maternity leave?

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 £140.98 (£145.18 from April 2018) a week or 90% of employee’s weekly earnings if this is less than £140.98 (£145.18 from April 2018) per week.

How much is Statutory Paternity pay?

SPP will be at the rate determined by the State £140.98 (£145.18 from April 2018) or 90% of weekly earnings (calculated at an average of the eight weeks preceding the Qualifying Week), whichever is the lower. It is either one week or two consecutive weeks’ paternity leave (not odd days).

Do I have to pay holiday pay to someone working under contract?

Yes, the Working Time Regulations apply to ‘workers’ as well employees. A subcontractor can accrue holiday entitlement unless they are genuinely self employed.

How much Statutory Sick Pay do I have to pay?

SSP is currently £89.35 (£92.05 from April 2018). Barring unusual circumstances, it must be paid until they return to work, or the employee has been paid 28 weeks’ SSP in a ‘period of incapacity for work’

Do I have to give paid time off work for Public Holidays?

It depends upon what is provided in the contract of employment. Time off for Public Holidays can be counted against a worker’s annual holiday entitlement, or can be provided in addition depending upon what is agreed.

If a fit note states that an employee “may be fit” to return to work, what action should you take?

You need to discuss with the employee what adjustments may be temporarily required to help them back to work. If you can agree what they are, it is a good idea to formally record what they are and the timescale. Then review progress. If you cannot agree on possible temporary adjustments, then the employee remains off sick until they more fully recover.

Can an employee take annual leave while on long-term sickness absence?

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.

Can an employee work elsewhere while on sickness absence?

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.

Can an employee return to work during a period covered by a medical certificate?

Yes, it is a commonly held myth that people cannot work when signed off by their GP, when effectively all their doctor has done, is formally recorded that they have advised their patient to take a period of time off from work. An employee can take the advice in part, or in full, as can the employer.

A fit note recommends “light duties” – what does this mean?

It may mean very little in reality, however, it could mean a range of things from shorter hours, reduced duties, less pressurised work, less physically active work etc. It is up to the employer to discuss with the employee what can be agreed upon, and accommodated for an agreed duration. If there are no light duties that can be offered or agreed upon, then the employee remains of sick until they more fully recover.

If an employee returns to work after long-term sickness, and it is obvious early on that they are still unwell – what can you do?

Sit down with them and express your concerns. Discuss whether it is realistic for them to continue working that day. An employer has a duty of care to make sure that work does not make an employee’s health worse. If it is genuinely thought that there are health, safety and/or welfare concerns, then send the person home on continued sick leave, and urge them to go back to their GP.

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

An employee on long-term sickness telephones to say that they do not think they can return to work but will not resign. What can you do?

Most employees will not resign in such circumstances, as they are well aware that they would lose out on receiving notice pay, and may have problems claiming state benefits. Pressurising an employee to resign could well be deemed to be constructive unfair dismissal, and if they have a recognised disability, your actions are likely to be deemed discriminatory as well. Go down an appropriate ill-health dismissal, having gained appropriate medical evidence regarding their future health prognosis.

Can you dismiss someone before their SSP entitlement runs out?

Yes, providing you follow a full and fair dismissal process.

On what grounds can you withhold SSP?

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.

What is a flexible working request?

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.

We have received a request for flexible working; do we have to agree to it?

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.

Can I refuse a request for Shared Parental Leave?

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.

Do I have to agree to take someone back from maternity leave on a part-time basis if their previous role was full-time?

No, but you must consider their request following a proper procedure which includes the right to appeal, within a reasonable time period (usually no more than 3 months). You must provide at least one of eight sound business reasons why you are turning down their flexible working request.

What is gross misconduct?

Gross misconduct can be any conduct where an employee has behaved in a way that represents a fundamental breach of their contract, making any continuing relationship with the employer impossible. Examples of acts of “gross misconduct” can include theft, dishonesty, violence at work, intoxication from drink or drugs and serious breach of health and safety rules.

Can we instantly dismiss employees if we catch them committing an act of gross misconduct?

There is no such thing as instant dismissal. If you follow a full and fair disciplinary procedure and you conclude that dismissal is appropriate in the circumstances then you will be able to effect a summary dismissal i.e. without notice or pay in lieu of notice on the day that the decision to dismiss has been communicated.

I have invited an employee to a disciplinary meeting and told them they may be accompanied by a colleague or union representative. They want to bring a friend or relative, is this ok?

They only have a right to a colleague or union representative so you can refuse their request. If they are disabled and need to have someone to assist or they are under 18, you would, however, be wise to make this adjustment.

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

Do I have to allow my staff to be accompanied at a disciplinary hearing by a Union Representative even though we do not recognise a Trade Union?

Yes for all casual, temporary and part-time workers, indeed anyone who falls within the general definition of a worker. The right exists regardless of whether or not you recognise a Trade Union to any degree.

Do I have to give written reasons for the dismissal of an employee?

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.

Are there other procedural requirements that must be followed in addition to the ACAS Discipline & Dismissal procedure?

In most cases of dismissal, i.e. in conduct and capability cases, an employer should also follow their own disciplinary procedure and be aware of all the ‘rules’ which case law has developed, so it is wise to seek professional HR advice.  In other cases, such as redundancy, there will be an expectation for a sound audit trail showing a fair selection process and meaningful consultation & consideration of alternative work.

Our staff contracts say that they are on one month’s notice but they are saying that long serving staff are entitled to more than this, which surely cannot be right if their contracts say one month from either party?

Contracts cannot take away from statutory legal entitlements. After one month of employment, employees are entitled to at least one week’s notice. After two years it goes up to 2 weeks notice and then increases by one week for each completed year of continuous service up to a maximum entitlement of 12 weeks.

What is the minimum period of notice that employees are entitled to?

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.

What is a resignation?

A resignation can be either verbal or in writing, and is a clear statement by the employee to their employer that they are going to leave their job. Threatening to leave, or saying that they are looking for another job, is not the same as formally resigning. An employer cannot refuse to accept a resignation, but may try to discuss and influence the final outcome.

What is a settlement agreement?

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.

I want to start a protected conversation with an employee we want to get rid of. How quickly can I do this?

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.

What is a redundancy situation?

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.

We need to make a few redundancies; do we have to wait for 30 days before we can do so?

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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.

How easy is it for employees to challenge a redundancy selection pool?

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.

What is the limit on a week’s pay for calculating redundancy and unfair dismissal basic awards?

£489 per week (£508 per week from 6th April 2018)

What is the maximum statutory redundancy pay or basic award for unfair dismissal?

£14,670 (30 weeks x £489) (£15,240 (30 weeks x £508) from 6th April 2018)

What is the maximum compensatory award for Unfair Dismissal?

£80,541 (£83,682.00 from 6th April 2018) or 1 year’s salary – whichever is the lower

How is compensation calculated in discrimination cases?

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.

What is the maximum working week under the Working Time Regulations?

Employees may work more than 48 hours in any given week provided that the average weekly working time over the reference period (usually 17 weeks)does not exceed the prescribed 48 hours

What are the minimum daily and weekly rest periods under the Working Time Regulations and does an employer have to force their employees to take rest breaks?

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.

What are the minimum break periods for employees?

20 minutes every 6 hours. If aged under 18, 30 minutes every 4.5 hours

What restrictions are there on employing under 18’s?

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.

An employee has made a complaint about their manager. What should they do?

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.

What is whistleblowing?

Whistleblowing is the phrase given to a situation whereby an employee makes a ‘qualifying disclosure,’ (reveals information or facts) which is normally to the detriment of the employer. If the disclosure qualifies as a protected disclosure, and the employee is dismissed for making it, they will be able to claim that their dismissal was automatically unfair.  Workers are also protected from suffering any detriment as a result of making a qualifying disclosure out of the organisation to e.g. a statutory body or the media.

Is there a requirement to consult with employees when there is a TUPE transfer?

Yes, there is a requirement for the employer to inform employees of the legal, social and economic implications of a TUPE (Transfer of Undertakings Protection of Employment regulations) transfer.  If the employer intends to take any measures in respect of any employee, there must also be consultation, e.g. changing pay date, pension or working hours.  The consultation must be with Employee representatives. But in their absence you have to consult with all the employees.

A TUPE transfer does not include a sale of the business by share transfer but it may still be worth full two-way communication to avoid Employee Relations problems.

When do I have to report an accident at work?

When it is:

  • fatal accident
  • specified injuries
  • an incident where, as a result of an accident connected with the workplace, people not at work receive an injury and have to be taken to hospital for it to be treated
  • a dangerous occurrence
  • an accident causing more than seven days’ incapacity for work
  • reportable occupational diseases

All incidents can be reported online (www.riddor.gov.uk) but a telephone (0845 300 9923) service remains for fatal accidents and specified injuries only.