Employment law questions for employers

Looking after your employees is paramount in any business, and if you are responsible for this area, whether you are an HR professionals or the business owner yourself, you will have many situations to manage; dismissing or disciplining employees, training, capability or performance issues, conducting appraisals…the list goes on.

If you are uncertain of the right procedures to follow for any of these situations or others, then we help to answer them here!  While these are no substitute for legal advice and the advice below should not be relied upon, they will help in explaining the basics and setting your mind at ease.

What types of break between contracts would not constitute a break in continuous employment?

Continuous employment is important for calculating when an employee will benefit from protection from unfair dismissal. This also has an impact on the calculation of the basic award for unfair dismissal cases and redundancy pay.

Usually a break of a week or more between contracts of employment would be sufficient to break continuity of employment, for example if an employee resigned from the business only to return a few weeks later. However, there are situations where an employee is absent from work but will still benefit from continuous employment.  

There are three main circumstances where an employee’s contract has ended but their employment continues.

The first reason is absence due to illness or injury. This is the case even if they work for another employer (doing a different type of work). Employment will not continue if the absence is longer than 26 weeks.

The second reason which will not break continuity is a temporary cessation of work, preventing work being carried out by an employee, for example, due to a loss of a contract. The employee must also be unable to attend because of the lack of work, rather than not attend of their own volition. There is no definition of what is to be classed as “temporary” and this is decided on the individual facts of the case. We do know however that continuity will not be broken if the individual is on a series of fixed term contracts and had a shut down period each year (for example seasonal workers).

The third reason is where an employee is absent from work due to a working arrangement or custom. The arrangement or custom must exist at the commencement of the absence, for example, an arrangement that an employee will work alternate weeks. Where the arrangement or custom will continue during a break in employment, there is no maximum set period for which the employee can be away from work and still benefit from continuity of employment. The longer the absence or break however, the more difficult it would be to argue that continuity was preserved during a break in employment.

You should bear the above reasons in mind when considering whether employees are protected from unfair dismissal or when working out their statutory redundancy payments.

Does a former employee have the right to see a reference we have provided?

You are not required to provide a reference for employees unless there is an express term in their contract of employment.

If you decide to provide a reference, you must take reasonable care to ensure that the information you provide is accurate and fair without being misleading.

If an employee wishes to see a copy of a reference that has been provided to their prospective employer, they could make a data subject access request in accordance with the General Data Protection Regulations (GDPR). This request can be sent to either the current/most recent employer who gave the reference, or to the prospective employer who receives the reference. They could also send the request directly to the person responsible for writing the reference.

If an employee believes that the reference was provided was inaccurate, they could bring various claims for breach of trust and confidence, false misstatement, and discrimination (if they have a protected characteristic) among others.

You also have a duty to the prospective employer to give an accurate reference. If false information is given, the prospective employer is entitled to bring a claim for negligent misstatement.

It is therefore important that any reference you provide is wholly accurate to avoid future claims regarding false or inaccurate information being given.

Should I deal with my employee’s poor performance through a disciplinary or a capability procedure?

In deciding whether performance issues should be dealt with through a capability procedure or a disciplinary procedure, you need to decide whether the poor performance amounts to misconduct or is indeed best placed as capability matter.

There is a difference between a capability procedure and a disciplinary procedure, and both capability and conduct are potentially fair reasons for dismissing an employee. It is important that a fair procedure is followed for those with over 2 year’s service to reduce the risk of an unfair dismissal claim.

A disciplinary procedure is usually used for issues of conduct. Those are where the employee has chosen to act in a particular way which is against the company’s policies. A capability procedure is used where the employee happens to have acted in a particular way but may not be able to act differently. A deliberate decision to behave in a particular way is likely to be a disciplinary issue whereas an attempt to behave appropriately which does not reach the required standard would be an issue of capability.

The difference in practical terms is the nature of the procedure that then follows. A disciplinary procedure dealing with misconduct is more about corrective behaviour and perhaps punishment of wrong doing. This could be through a written warning or perhaps a demotion. A capability procedure is more benign and looks at encouraging better performance and offering support and resources to enable the behaviour and outcomes to improve.

If the poor performance is solely due to a lack of understanding, resources and/or training then poor performance issues should be dealt with through a capability procedure as this offers where possible the support and training required for the employee to improve.

Sometimes you may have difficulty in deciding whether a reason for poor performance is due to capability or conduct. For example, in cases of repeated mistakes, it may be possible to characterise the reason as capability or conduct. Provided the employer makes it clear to the employee what the allegation is and the matter is investigated correctly and an appropriate procedure and outcome is reached, an employer is unlikely to be penalised by any tribunal for applying the incorrect label.

What do I do if an employee calls in sick during a disciplinary procedure?

Disciplinary proceedings can be difficult for many employees and in some cases it can become too much, resulting in the employee calling in or being signed off sick. Most employers believe that a disciplinary procedure can’t continue until the employee returns from their period of sick leave; however this is not the case.

You are still able to take disciplinary action whilst an employee is off sick, you do however need to handle the situation sensitively. It is important to take the nature and seriousness of the illness into consideration when deciding whether to proceed.

With an employee’s permission you are able to ask their GP if they’re fit to attend a disciplinary meeting, or how long it’ll be before they’re able to attend; an occupational health report can also provide guidance on these issues. Make sure to strike the correct balance between the importance of the disciplinary proceedings and the employee’s wellbeing and recovery.

If the employee’s illness is short term then you may want to postpone the meeting until the employee’s return. If the illness is long term and the disciplinary matter is pressing, you may need to consider getting the employee to provide a written statement and ask them to nominate a representative to attend the meeting on their behalf. If the employee is off because of something work-related, you may want to hold the meeting at a neutral location or the employee's home, if they agree.

Be sympathetic to your employees with disabilities; you’re required to make reasonable adjustments for disabled employees so they’re not at a disadvantage, for example you can choose to postpone the meeting, hold the meeting at a neutral location, allow a companion such as a family member or a mental health support work, or allow regular beaks during the meeting.

You are under no obligation to follow a process when deciding to dismiss an employee with less than two years’ service. If the employee is absent from work due to ill health during this time, you may wish to dismiss them by letter.

Do I need to publish my family friendly policies?

You should have comprehensive policies in relation to family friendly leave in place, either as separate policies or as part of your staff handbook. These policies should clearly set out the procedures which will be followed if an employee becomes pregnant or is looking to adopt; this should also outline the employees’ rights regarding pay, and what they are entitled to upon their return to work.

You may wish to place these policies where they can be easily accessed by employees, for example on the company intranet. As the law currently stands, there is no requirement for you to publish your family friendly policies to anyone outside your organisation. However, the government has recently announced that they are planning to hold a consultation which would compel employers to publish these policies.

The plans, as they currently stand, would require employers with more than 250 employees to publish details of their family friendly policies, including details regarding pay. It appears the plans would cover policies such as maternity, paternity, adoption, shared parental and parental leave, and possibly flexible working.

By introducing this, the government hope to support parents, particularly mothers, in the job market. The change will help job applicants make informed decisions regarding the care of their family prior to accepting a job.

The plans could also make it easier for competing employers to benchmark themselves against their competitors.

What are my responsibilities for my employees’ eye care?

As an employer, you have a responsibility towards any employees who use Display Screen Equipment (DSE) e.g. computers to carry out their duties; this includes any employees that are required to use DSE for more than one hour on a daily basis.

You must tell employees that they are entitled to an appropriate eyesight test; you may choose to inform them in a number of ways, for example, internal memos, in a policy contained in the employee handbook, or through an induction procedure for new employees. If an employee has requested to have an eye test, and they are eligible to receive one, you are required to cover the cost.

You should be sympathetic as employees with poor eye sight may need regular breaks, the amount of breaks will depend on the age of the employee and the intensity of the work. Any employees who experience visual difficulties which may be due to DSE are also entitled to any appropriate eyesight test. If the employee is expected to deal with DSE on a daily basis, they maybe entitled to receive an eye test before commencing employment.

If an eyesight test reveals that particular lenses are required, you are required to pay for the costs of the minimum required frames and lenses. Where an employee already wears glasses and they need to change lenses, if the glasses are adequate for the work on DSE, then you do not need to pay for the cost.

It is recommended that you assess the risks associated with using DSE and any special needs of individual staff. You should use your assessment to decide what needs to be done and check what action should be taken, making a record of any significant findings.

How should I be supporting my employees with dementia?

Approximately 850,000 people in the UK are living with dementia, and more than 40,000 of those are under 65. With 18% of under 65s deciding to continue to work after their diagnosis, employees with dementia are becoming more prevalent in the workplace. Almost 90% of employers recognise this, so how can you support employees with dementia in your business?

Firstly, you need to recognise that people with a disability (which generally will include dementia) have statutory protection under the Equality Act 2010.

Under the Equality Act 2010, if an employee or worker is disabled, and is disadvantaged at work as a result, you are under a duty to make reasonable adjustments, effectively treating the disabled person more favourably in an attempt to lessen or remove the disadvantage.

Reasonable adjustments could include having large and clear signage, installing soundproofing to minimise distractions, changing their working hours, or changing their role. You should speak with the employee privately, and come up with a variety of options to enable them to stay in work.

Where a reasonable adjustment cannot be easily identified, you should seek further advice from a legal representative or an occupational health specialist who can advise you on the best way to support your employee and create a plan for the future.

You should also be wary of any other potentially discriminatory behaviour. Punishing an employee for taking time off due to their disability, or not allowing them enough time off to recover in the first place, could be seen as direct discrimination. The use of selection criteria for job applicants could be considered as indirect discrimination if it prevents people with dementia from succeeding in their application, and the employee, or potential employee, may be able to bring a claim. If you believe the best course of action would be to bring the employee’s contract to an end, ACAS recommends that you avoid capability and disciplinary procedures, and instead follow a dignified exit strategy.

Failure to comply with the duty to make reasonable adjustments or take the above into account could result in claims for failure to make reasonable adjustments, direct discrimination, discrimination arising from a disability, and/or indirect disability discrimination.

Before it even reaches this stage, you may want to tackle stigma about dementia in the workplace. Many people with dementia often fear bullying, or that their colleagues don’t trust them. Providing information and training to your members of staff explaining the every day challenges people with dementia face, and how to help them, can tackle the stigma associated with dementia in the workplace.

If you would like details on how a Dementia Friends Information Session could help you and your employees, Jane Cox, Private Client Partner, is able to provide these for your business; click here for more information.

Are my employees allowed time off for blood or organ donations?

The question of whether an employee is allowed time off for blood or organ donations largely depends on their employment contract, your policies, or decisions you’ve made in similar circumstances, but generally this is at your discretion. However, there are a number of different factors to consider.

Most employers would allow employees to take any time off as sick leave, both for the surgery and for the recovery time. However, there may be some debate here as the procedures are voluntary, which can cause controversy. Time off for voluntary surgery should be expressly dealt with in employment contracts or in the staff handbook.

The question over sick pay should also be considered. Statutory sick pay is payable for any day on which the employee is, or is deemed to be, incapable of doing work which they are can reasonably expected to do under their contract of employment. It is likely that an employee recovering from an organ donation procedure would be covered by sick leave, but only after the surgery, but for blood donations this is unlikely.  You could also consider whether compassionate leave should be given.

You may want to consider that in the case of organ donations to family members, this may cause the employee significant stress because they are concerned with the health of a loved one. You may need to take into account the impact this time off could have on the business, it is unlikely that allowing time off for organ donations will lead to numerous employees deciding to donate organs to get time off work. Morale should also be taken into consideration, if extra time off is given for these types of procedures, it could have a positive effect on the attitudes of your staff. Alternatively, an employee can take this time as annual leave.

It is likely that cases may require a mixture of sick leave, compassionate leave and annual leave to be taken. You should keep a detailed record of the surrounding facts, what decision was taken, and why.

How can I promote a career culture opposed to a job culture?

Employers are becoming more and more dependent on the millennial generation of staff, as they progress up the career ladder and the baby boomers begin to retire.  However, a recent study found that one in two millennials plan to change jobs within the next two years.  So, what is causing this and how can you ensure you retain your millennial staff?

First, you need to acknowledge that there is a generational gap when it comes to attitude.  The key factors employees hunger for has shifted over the years from loyalty, work ethic and a steady career path, to work-life balance, individual advancement and stability, and now largely to meaningful work, progression, flexibility and regular feedback.  While it may be a generalisation, you may have the opinion that millennials are entitled and lazy; naturally it will ring true in some cases, but in others there is merely a shift in what they are looking for in a job and not all millennials can be painted with the same brush.

Your managers are also a big factor in whether employees stay with the organisation – employees tend to leave managers, not jobs.  Demotivated employees suffer a 31% loss in productivity, with a massive 81% more likely to quit their job.  Millennials are motivated by meaningful work, progression, flexibility and regular feedback, so your managers should make those factors a priority if they want to retain the best staff.  A motivated employee is far more likely to want to remain in the job and not jump ship.  Give them a reason to stay.

Meaningful work - everyone wants their work to be meaningful, and this is especially true of the millennial generation.

Progression - millennials want to see that the work they are doing will lead to progress.  The days of blind loyalty are long gone; employees with a desire to progress up the career ladder will only stick around and keep doing good work if they can see that the ladder is there for them.

Flexibility - we recently reported on the benefits of flexible and remote working which are attractive propositions to the millennial generation.  It is made a great deal easier with today’s technology and, particularly in offices, with the ability to work remotely from other computers including those at home.  You should consider designing flexibility into jobs as standard; ask “why not” rather than “why” flexible or remote working should be considered.

Regular feedback - this one is pretty self-explanatory, and extends beyond the annual appraisal.  It doesn’t need to be formal; the odd comment here or there can help keep employees motivated or encourage them to adapt without waiting months for the appraisal before it comes up.  The benefit to you will see will be the feedback you receive as to how well you and your managers are doing to encourage good staff to remain, and what could be changed.

What are my responsibilities for my diabetic workers?

According to Diabetes UK, one in six people with diabetes feel discriminated against in the workplace because of their condition. Nearly one in twelve have actively taken steps to hide it from their employer. Now it has emerged that one in five people who have diabetes have faced disciplinary action for missing work.

Given diabetes is a disability afforded with legal protection under the Equality Act 2010, and around 3.7 million people in the UK are affected by diabetes, its important you understand how to deal with diabetic employees.

Where an employee or worker is disabled and is disadvantaged at work as a result, you have a duty to make reasonable adjustments effectively treating the disabled person more favourably in an attempt to lessen or remove that disadvantage. For more information on reasonable adjustments and when the duty arises, see more information in our question below.

For diabetics in particular, an employer should consider adjusting their work times to help deal with fatigue, changing their duties at work or allowing them to take time off if needed.

Employers should also be wary of any other potentially discriminatory behaviour. Punishing an employee for taking time off due to their disability, or not allowing them enough time off in the first place, could be construed as direct discrimination. If selection criteria could prevent people with diabetes from succeeding in an application for promotion or recruitment, this could be indirect disability discrimination. The employee – or potential employee – may be able to bring a claim.

Failure to make any necessary reasonable adjustments could result in a claim for any or all of following: the failure to make reasonable adjustments itself; direct discrimination arising from a disability; and/or indirect disability discrimination.

Employers need to be alert to the fact that a number of their employees may suffer from diabetes and should take steps to ensure they are not treated less favourably as a result.

How do I report my transgender employees in my Gender Pay Gap Report?

Certain businesses were required to report their gender pay gap In April of this year following new regulations introduced.

One point on which the legislation for gender pay gap reporting is lacking is that of transgender and non-binary employees. The laws make no mention of them, and employers are only able to classify staff as male or female. There is no definition of male or female, so how should you as an employer class transgender or non-binary staff?

This can be a difficult subject for you to approach; it can entail a number of potential discrimination issues if your employee then argues they are treated less favourably as a result. There is a risk of a data protection breach, particularly with the new stringent requirements of GDPR. Moreover, there is a risk that staff may feel isolated if they are being asked about their gender identification.

An important question to clarify is at which point in the transition does the gender change? ACAS guidance suggests using payroll records to determine this - but it may be unreliable, out of date or the payroll may simply not include that information. Other guidance suggests that the gender should be set as the ‘lived’ identity on the snapshot date for the reporting - but you should not make any assumptions here. Transitioning does not necessarily entail medical treatment. It is a personal process including the conscious decision that one identifies with the other gender - but understandably you may not know an employee is transitioning if you haven’t been told.

ACAS guidance suggests that employees who do not identify with either gender should be excluded from the report - clearly not an ideal position.

It may be that gender pay gap reporting in the future will be extended to reveal the gender pay gap between transgender and non-binary with those who identify with the gender they were born with. Some employers may even move to do it voluntarily.

Employers also need to be sensitive to a situation where they only have one or two transgender or non-binary employees (a very real possibility)? If it were to reveal a disparity, naturally the report may be working and that can be rectified. However, the employee may feel singled out if there is a pay gap report of them versus every other employee in the organisation.

The world is waking up to these factors. The law - and employers - need to keep up.

How can I avoid discrimination on religious or belief grounds in my workplace?

ACAS has published new Guidance on religion or belief discrimination in the workplace. The guidance covers the following topics:

  1. What religion discrimination and belief discrimination are
  2. How religion or belief discrimination can happen – whether by direct or indirect discrimination, by harassment or by victimisation
  3. In what situations religion or belief discrimination are most likely to occur
  4. Some matters which everyone in the workplace should consider
  5. How complaints should be raised and handled

The Equality Act 2010 (the Act) provides protection from discrimination, harassment and victimisation because of religion or belief, with no minimum term of employment for protection to take effect - in fact, in the case of job applicants, there is no requirement for any employment at all.

There is no set definition of religion in the Act, but it is clear that it also covers atheism and those who do not practise a particular religion.

The belief need not necessarily be a religious belief – philosophical beliefs are also protected provided they are genuinely held, not merely an opinion or point of view. In order to be considered a belief under the Act it must have a weighty and substantial aspect of human life and behaviour, and must be clear, logical, convincing, serious, important, and worthy of respect in a democratic society. The belief must be compatible with human dignity and not in conflict with others’ fundamental rights. So, for example, environmentalism is a protected belief – but supporting a football team is not.

Most of the suggestions ACAS make in the Guidance state that any changes should ‘be fair and be reasonable’. The Guidance also raises some helpful suggestions such as:

  1. People of the same religion may not practise it in the same way – their levels of adherence or beliefs within that religion may vary.
  2. In the interview process, get panel members to constructively ‘call each other out’ if one of them may be stereotyping.
  3. Time off for religious reasons could be written into the employment contract, or at least the policy, and will be considered on an individual basis.
  4. An employer should be open to changing their dress code where proportionate to take into account religious dress.
  5. Employers should be open to flexible working hours during a period of fasting.
  6. Employers should be aware that an employee’s level of observance with their religion may change over time, particularly after a bereavement.
What are my legal obligations regarding reasonable adjustments for my employees?

If you know, or should know that a job applicant, employee, or former employee is disabled and is likely to be placed at a substantial disadvantage because of their disability, it is your duty to make reasonable adjustments under the Equality Act 2010. Reasonable adjustments are used to treat the disabled person more favourably in an attempt to lessen or remove that disadvantage they have due to their disability.

The duty can arise when a disabled person is placed at a substantial disadvantage. In order for the disadvantage to be substantial, it must be “more than minor or trivial”. For example a disabled employee may be placed at a substantial disadvantage by:

  1. A provision, criterion or practice - This is construed widely and could include formal or informal policies, practices, arrangements or qualifications – it could even extend to an expectation to work long hours (even if not strictly required)
  2. A physical feature - This could be entrances or exits, stairways, floor coverings, furniture, heavy doors, lighting, or any other physical feature
  3. The employer’s failure to provide an auxiliary aid - This would be something which provides support or assistance to the disabled person, such as an adapted keyboard or a sign language interpreter

The Equality and Human Rights Commission’s ‘Employment Statutory Code of Practice’ contains a list of potential adjustments that employers could be required to make, including physical changes, flexible working, acquiring new equipment, adjusting redundancy selection criteria and various others. Although the list is not exhaustive, you may find the list helpful when looking at making reasonable adjustments in your workplace.

If you make an adjustment, the question of whether it was reasonable or not is objectively decided by an Employment Tribunal. They will take into account factors such as:

  1. the extent to which the adjustment would have assuaged the disadvantage
  2. the extent to which the adjustment was practical
  3. the financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer's activities
  4. the financial and other resources available to the employer
  5. the availability of external financial or other assistance
  6. the nature of the employer's activities and the size of the undertaking

Failure to comply with the duty to make reasonable adjustments could result in a claim for direct discrimination arising from a disability; and/or indirect disability discrimination. It’s important for employers to take into account the needs of disabled employees, and if any reasonable adjustments need to be made.

How can I support my employees with substance abuse?

Staff who misuse substances or have a substance abuse problem can have a major impact on your organisation, and as you have a legal responsibility over their health and safety you should be prepared to manage a situation such as this.

There may be some employees who will turn to alcohol or drugs as a coping mechanism for dealing with stress, often induced from their workload, with many employers seeing alcohol or drug related problems as a medical issue and not a disciplinary issue. The earlier a problem can be dealt with the more likely the chance of rehabilitation will be.

Alcohol and substance abuse are specifically excluded from the definition of disability under the Equality Act meaning an employee is not protected from discrimination on the grounds of their alcohol or substance dependency.  However, alcohol and substance misuse might be an indicator of an underlying mental health concern or a response to some other form of impairment; you should investigate the background to the abuse before taking action which might be constitute less favourable treatment.  If the abuse is an indicator of impairment then the employee could be disabled and you would be obliged to make reasonable adjustments for them, this could include adjusting the procedures that they follow or performance management policies.  It is always wise to engage with occupational health to discover if there is an underlying concern before taking action in response to such substance abuse.

Ways you could support the employee would be to contribute towards the cost of counselling, more regular monitoring of workloads to ensure that this is not contributing to the problem, and treating any absence for treatment or rehabilitation as normal sick leave rather that annual leave.

Ensuring that you have a policy in place, and that is applied consistently to all workers will help you comply with any legal obligations. The policy should be designed to help protect employees from the dangers of substance abuse and encourage those who are suffering to speak out and seek help. Your policy will need to state the rules around substances in the workplace, and you should ensure that any problems that do arise are dealt with confidentially so that each employee feels secure in being able to discuss these matters openly with their line manager.

What is my duty of care when providing a reference?

In general there is no legal requirement for an employer or ex-employer to provide a reference for an employee or ex-employee. Nevertheless, you will need to ensure that a policy is in place, specifying how you deal with references, and make sure this is applied consistently throughout your workplace. Inconsistency when it comes to references means you could potentially face claims of discrimination, or a breach of the term of mutual trust and confidence.

When providing a reference a duty is owed to the employee/ex-employee to take reasonable care to ensure that that the information contained in the reference is true, accurate and fair; and does not give a misleading impression. There is no requirement to provide any detail in a reference or for it to be comprehensive. If providing a brief factual reference with dates and job role, be sure to explain that it is your policy to only provide references in this format.

Care must be taken when providing a reference to ensure that the contents of the reference are not discriminatory. Comments about performance, attendance or sickness absence should be considered carefully as there is a risk these comments could amount to disability discrimination.

How can I promote a culture of flexible working in my business?

Workplaces are slowly moving away from the idea of workers being omnipresent; moving towards flexible working schemes which reward the work a person does, rather than the number of hours they spend in the workplace.

But many workplaces are still slow to adopt a more modern approach - 17% of people believe that, if they worked flexibly, it would stifle their progress. Of those who do work flexibly, one in three flexible workers feels they are regarded as having lower status because of their flexible working pattern, and one in four believes that they have missed out on a promotion because of it. It would appear that the reluctance of employers to adopt the scheme is down to the workplace culture.

A recent study by Timewise and Deloitte sets out a five-point plan looking at how you can promote flexible working schemes in your workplace. The five-point plan is:-

  1. Leaders must provoke cultural change; challenging the status quo. This would involve challenging stereotypes and making flexibility a strategic issue of the organisation.
  2. Flexible working should be gender neutral; you should emphasise the value of both male and female role models. This would involve encouraging men to push for flexibility and shared parental leave. Senior employees could also broadcast that they are working flexibly, as this may encourage others to do so.
  3. Design flexibility into jobs as standard; you should ask “why not” rather than “why”. It should be individual to each person and measured by the work done rather than the time in attendance. You should make it the new norm and could go so far as assuming flexible working is available unless there is a valid reason not to.
  4. Influence the attitudes and actions of managers; You should provide employees with permission and support, and senior members of staff should be given the permission, training and tools to provide flexible working.
  5. Collect the data; measure the success of flexible working. Set targets based on performance rather than attendance, measure the achievements and share them across the organisation to set a precedent.

A flexible working policy in the organisation adopting the five-point plan would be a great first step in promoting flexible working in the business, but staff also need to be encouraged to work flexibly – from top to bottom.

How should I respond to a gender pay investigation?

The last year has seen a great deal of media attention attributed to the “glass ceiling” and the gender pay gap, and with new regulations requiring large companies to report their gender pay data, the full extent of the pay difference has been exposed for the first time.  First, it is worth noting that equal pay and the gender pay gap are different things. Whilst equal pay is paying men and women the same amount for doing identical or equivalent work, the gender pay gap is the difference between average earnings for men and women (which might be affected by the role they have). Having a gender pay gap isn’t (currently) unlawful, but failure to report the data is.

Certain employers are under a legal obligation to report data relating to the gender pay gap within their organisation. The threshold for whether you have to do so is subject to various criteria and can sometimes appear unclear, but the crux of the rule is whether you have 250 or more employees (which, for the purposes of these regulations, include self-employed contractors) on 5 April in any given year. If you do, then you will be required to report your gender pay data.

For the first deadline in April 2018, more than 1,500 employers failed to publish their gender pay data; approximately 17% of those required to do so. In many cases, this has prompted an investigation by the Equality and Human Rights Commission (“EHRC”) under section 20 of the Equality Act 2006. The first set of investigations by the EHRC started in June 2018.

If the investigation concludes that an employer has committed an unlawful act and failed to comply with their duties in reporting data on gender pay, then the employer may be ‘named and shamed’ on the EHRC’s website. The EHRC will also require the employer to take steps to remedy the situation, with a potentially unlimited fine if the employer fails to do so.

If you are under investigation for failing to report your data, you should first, fully assess whether you fit the threshold and were obliged to do so. If so, you should indicate to the EHRC that you wish to comply, begin compiling the data immediately and should follow any steps required by the EHRC. Failure to carry out the required steps could result in an unlimited fine.

If you did report your data, well done! You should record any assumptions you made, how you collected the figures and how they were interpreted. That way, you can use the same process the next year and it will be easier to establish a trend, as it will be required to be published alongside the previous year’s data.

How should I prepare my business for the World Cup?

With the World Cup just over a week away, today we are asking you if your business is ready for the sporting event, and the possible issues that can arise. The World Cup kicks off on 14 June with the final taking place on 15 July. 63 matches take place during this period with a number of the games kicking off during working hours.

There are a number of different things businesses can be doing to prepare for the World Cup. A key element of being prepared is deciding on your approach in advance. You can implement a formal sporting and special events policy which could set out your position on a number of points during the event, for example the procedure for taking annual leave as requests may be heightened in June and July while matches are taking place. The policy may also cover any special facilities or arrangements for viewing events which take place during working hours; you could offer additional flexible working arrangements during the World Cup.

Temporary working time arrangements can be put in place for games that take place during working hours, you could choose to be flexible on start and end times as long as the time is made up. For example, if an employee wanted to leave early to watch a late afternoon game they could come in earlier that day. A number of the games kick off at 13.00 BST, you could allow employees to take an extra hour for lunch and stay late to make up the time.

You may want to make special arrangements for matches occurring during working hours such as: showing games on TVs in communal areas or allowing employees to listen to or watch the  games on their work or personal devices. Steps such as these can be a boost to morale and reduce the risk of employees calling in sick on the day of a big match.

Being aware of the risk of discrimination arising is of vital importance - if special treatment is being offered to England fan, such as flexible working, then employers need to ensure the same treatment is offered to fans of other countries. You should remind staff that harassment will not be tolerated, hostile or racist remarks about a particular country could give rise to claims of harassment.

Disciplinary issues may become more prevalent during the World Cup, especially if you’re not prepared and do not communicate to staff what is and is not acceptable. A small number of employees may misbehave regardless of your warnings; you should make it clear any inappropriate behaviour will be dealt with. Issues which could potentially arise are: increased number of employees pulling a sickie the night after watching a big game, or the day of a big game; intoxication at work after visiting the pub for a lunchtime game; excessive internet use to stream multiple games when they should be working and harassment of colleagues from other countries.

Can I end an employee's fixed term contract early?

Fixed term employment contracts are often used to secure an employee for a specified period of time or for a particular event; they are also used for maternity cover or where an employee is needed for a specific task. However, this can create problems for you if circumstances change and you need to end the contract early. So how can you end a fixed term employment contract early?

If you decide not to renew a fixed term contract when it comes to an end, this is treated in law as a dismissal, and should bear in mind that fixed term employees are protected from unfair dismissal, if they have been employed for two years’ continuous service.  Therefore, when dealing with employees who are eligible to pursue an unfair dismissal claim, you will need to identify one of the five potentially fair reasons for dismissing an employee, and follow a fair procedure before deciding not to renew a fixed term contract.

Fixed term employees cannot be treated less favourably than permanent staff, and will benefit from the contractual entitlements (e.g. pensions, bonuses or private healthcare) and facilities which are offered to permanent staff on a pro-rata basis where reasonable and appropriate.

Should you wish to end the contract before the fixed term has come to an end, it is important to check whether there is a ‘break clause’ or notice clause in the contract. The break clause may permit you, the employee or both to give notice to the other to end the contract. There are statutory minimum notice periods which the clause must comply with. If you are in a strong negotiating position when agreeing the contract terms, it is worth ensuring that the contract gives you the power to give notice to terminate the contract before the end of the fixed term. However, if there is no express break clause or notice clause in the contract, then the contract cannot be terminated by notice.  If there is no express provision in the contract to end the employment before expiry of the fixed term contract and you terminate the contract anyway you could be liable to pay the employee’s salary up until the end the fixed term.

You should consider whether there is a ‘termination clause’ in the contract, which allows you to terminate the contract should specific events occur. These specified events will have been agreed at the outset and could include situations such as the bankruptcy or long-term illness of the employee.  There is no requirement for a notice period for these clauses. You should also be aware that there are special rules for termination if the employee is a director of the company.

What are my responsibilities for an employee with cancer?

1 in 2 people born after 1960 in the UK will be diagnosed with some form of cancer during their lifetime, so it is likely at some point you will have an employee with cancer. But what responsibilities do you have in this situation?

A disability is defined as any physical or mental impairment which has a substantial and a long-term adverse effect on a person's ability to carry out normal day-to-day activities; including cancer. A disability arises as soon as the diagnosis is made.  The Employment Appeal Tribunal recently found in the case of Lofty v Hamis that pre-cancerous conditions, a stage of cancer, are also protected under the Equality Act 2010. You will need to make sure any actions taken do not amount to disability discrimination when dealing with employees with cancer.

Once you become aware that an employee is suffering with cancer you are obligated to make reasonable adjustments, allowing the employee to return or continue to work. When discussing reasonable adjustments, the employee should be consulted and involved in each stage of the adjustment process. This could include the following:

  • allowing time off for medical appointments
  • offering flexible working hours
  • organising a phases return to work

Training of line managers to be able to support an employee is also recommended because they are often the first person an employee contacts when they are unwell and unable to attend work, they have responsibility for managing the employee on their return and they play a key role in any necessary work adjustments.

What do I need to do before I allow dogs to come to work?

An increasing number of employers are now allowing their employees to bring their dogs to work. Whilst this is something to celebrate, there are certain specific steps you should consider before allowing dogs in the workplace.

Firstly, you should seek consent from the landlord of your premises and check that you have an appropriate insurance policy.  You might then want to seek written consent from your employees.

Once you have obtained the consent of your landlord, insurer and employees, you should draft a pet-policy. The policy should underline that owners are responsible for controlling their dogs at all times and that each of them needs to get your permission to bring their dogs to their place of work. It should also give guidelines as to what is expected from both owners and dogs; for instance each dog coming to the workplace should be vaccinated and kept on a leash, and should have an identity tag with the owner’s contact details.  You may also wish to specify that the dogs should be clean and well-groomed ahead of their day at work and be well socialised.  Each participating employee should bring a ‘Dog Packed Lunch’, including treats, toys, a lead, water bowl and food, and appropriate bedding for their dog. 

The next step will be to pet-proof your workplace (you might want to hide cables!) and to keep an accurate record of all dogs coming in to the workplace.

Lastly you should make sure the workplace is kept clean and adheres to relevant hygiene standards.

What potential pitfalls do I need to look out for during the Christmas period?

The Christmas season can prove to be challenging for employers as they face a minefield of potential pitfalls and challenges.  There are certain things employers can do to minimise potential risks that could arise over the Christmas period.

Many organisations close for business for a short time over the Christmas period.  It is important for employers to announce the closing dates early on in the year and explain to all staff if annual leave is affected. This situation can concern employers if they require employees to use their annual leave entitlement to take certain days off over Christmas.  If the number of days leave is not pro-rated for part-timers, it may result in them suffering less favourable treatment compared to full-time workers.   You should ensure that you review holidays around the Christmas period, to make sure that all your employees have either taken their holiday, are waiving it or, if your policy allows this, are carrying over any remaining holidays to the next year.

It is also common for many organisations to relax their dress policy for some days during the Christmas period by inviting casual dress and Christmas jumpers, especially on Christmas Jumper Day.  You should be careful about the wording when notifying employees and make it clear that casual and Christmas dress is optional, so as to be sensitive to employees who do not celebrate Christmas.

Christmas is also a time when many organisations receive gifts from grateful suppliers/customers.  It is important for all organisations that the acceptance of these gifts does not give the appearance that they may be unduly influenced when making decisions; therefore you should remind employees of your rules on gifts.  An effective way of doing so is to implement a gifts and hospitality register; all gifts and hospitality received, of whatever value, must be entered into the register and no personal gifts of a value in excess of set limit should be accepted without the express permission from their line manager.  It is important that you remind all employees of what is an acceptable gift and make it clear that employees are welcome to keep or share any gifts of a minor value (e.g. £10 or less) that they receive.  Rather than assuming what the acceptable limit is, you should make sure that you check your policy and inform staff accordingly.  If you do not have a policy, you should consider implementing a Bribery Policy or Guidelines around receiving gifts.

Many organisations will also be organising staff Christmas parties.  You should reiterate with your employees that the normal standards of professional behaviour apply and anyone who does not maintain the expected professional conduct may be subjected to disciplinary proceedings.

Do I need a workplace social events policy?

Work-related social events bring their own set of challenges for employers as issues to do with conduct and discrimination may arise at such events.  Workplace Christmas parties are probably the biggest work-related social events of the year.

A work-related social event is effectively an extension of the workplace; therefore you could be open to claims by way of vicarious liability for actions of employees at a work-related social event. You will have a defence to a claim of vicarious liability if you can demonstrate that you took the necessary steps as were ‘reasonably practicable’ to prevent employees from acting in a manner that would expose you to potential claims.

A work-related social events policy could assist by reminding employees of the expected conduct at social events and the consequences of not adhering to the policy.  Your managers should familiarise themselves with the policy on Christmas parties or work-related social events. Furthermore, you may also want to consider releasing a statement to all employees in advance of a work-related social event.

As an employer, you have a duty of care towards your employees. The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by employees in the course of employment.

A recommended Work-Related Social Events Policy would cover:

  • Alcohol use
  • Illegal drugs
  • Not drinking and driving
  • Not tolerating improper conduct and unacceptable behaviour
  • Employees not bringing the Company’s name into disrepute

Any breach of the above rules will render the employee liable to disciplinary action under your disciplinary procedure, up to and including summary dismissal.  The above rules would be in place for the benefit of all members of staff and to ensure that everyone can enjoy work-related social events in an atmosphere of conviviality without fear of being made to feel uncomfortable by another employee's conduct.

It is key for you to remember to set the parameters early on to avoid any confusion and to remind employees of the implications of their actions at a work-related social event.

What should I consider before employing seasonal workers?

During demanding times, many companies need to bring in temporary staff members to help take on the additional work.  Seasonal workers can provide an effective short-term solution; however, it is important that you do not neglect the rights of seasonal workers.

The most important element to remember is that seasonal workers are entitled to the same statutory employment rights as permanent employees.  To determine the full extent of an individual’s rights, you must first establish whether the individual will be classed as an employee, a worker, or self-employed.  It is important to differentiate the employment status from the working pattern, for example, a staff member could fall under the category of an employee but may be contracted to just seasonal or part-time work.

It is important to select the right team to ensure performance.  Seasonal workers are often brought in to support the company throughout particularly busy periods; therefore they still need to meet the skills and experience that would be expected from a permanent member of staff.

It is for this reason that you should plan ahead, ensuring that interviews for job applicants are held well in advance before the start of the anticipated busy period. In circumstances where the employee has a contract of employment, and this could be a fixed term contract or temporary contract which entitles the worker to a certain amount of work, it is important to ensure that any such contract can be terminated before the agreed term if performance is not satisfactory.

These considerations will also have tax implications; it helps to assess how much tax each person should pay and any entitlements they should be receiving.  HM Revenues & Customs will regularly evaluate the relationship between you and your employees and all the relevant documentation, such as contracts of employment. If you are found to be incorrectly documenting information, you could be subjected to claims against your company.  For example, if a staff member was initially employed under a fixed term contract and the contract was continuously renewed over a four year period, it would automatically change to a permanent contract.

You should also keep in mind The Agency Workers Regulations 2010, which apply to agency workers who are assigned to do temporary work for hirers through temporary work agencies.  There are two particular clauses you should be aware of:

Taking on seasonal workers can be challenging, however, as long as you maintain a good temporary working policy and ensure the correct documentation is in place by regularly reviewing the employment status, it can be a rewarding a effective business strategy.

  • The workers have Day One Rights - these ensure that a hirer’s agency workers can access its collective facilities and amenities and that they have access to information about job vacancies from the first day of their assignment.
  • Week 12 Rights - when an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks
What measures could I consider before redundancy?

Redundancy can be a difficult task for companies of all sizes but can be particularly challenging if you are a small business owner and do not have an HR person to oversee the redundancy process. The redundancy process can be straightforward if it is handled correctly, but failure to follow the correct redundancy procedure may result in claims of unfair dismissal being brought which can prove to be costly.

There are alternatives to redundancy that you could consider before undertaking the redundancy process.  They are as follows:

  • Restrict or reduce external recruitment and consider whether a vacancy can filled internally before advertising externally.
  • Reduce costs by restricting or banning overtime.  However, you should communicate this to your employees and explain that it is a means of avoiding compulsory redundancies
  • Redeploying or retraining employees if one area of the business is busier than another.  It may be possible for you to undertake a restructuring process without the need for redundancies
  • Introduce job-shares, which can help reduce costs.  This enables your employees to split a full-time role between them. In this situation, you should discuss the hours/days and duties of the role with the employees
  • Unpaid voluntary sabbaticals/career breaks/secondments as a means of reducing costs for a fixed period of time
  • Introduce flexible working by inviting employees to make requests of this nature with the aim of reducing their hours or days of work.  You can also consider the introduction of reduction in working hours or days for a certain group of employees on a temporary or permanent basis. It is important that you obtain the consent of the employee(s) in question in order to mitigate any risk of breach of contract and/or constructive dismissal claims.
  • Early retirement which will free up vacancies that could be filled by employees who might have otherwise been at risk of redundancy.  You will need to tread carefully in light of the age discrimination provisions in the Equality Act 2010
  • Company budgets could be cut in order to reduce costs in some areas of the company
  • Purchase annual leave by offering your employees the opportunity to take extra holiday in exchange for a pro rata reduction in salary.  This can help with short-term cost reductions during quiet periods
  • Voluntary redundancy is another alternative which you could consider.  Offering voluntary redundancies might reduce the need to make compulsory redundancies
Do I need to make any policy changes in light of the Parental Bereavement Bill?

The purpose of the proposed Parental Bereavement (Pay and Leave) Bill is to provide a statutory right to paid leave for employed parents who suffer the loss of a child.  Previous attempts to introduce paid parental bereavement leave have been unsuccessful and as such a right to time off when a child dies does not expressly exist in law at present.

Instead, the Employment Rights Act 1996 allows your employees to have a day-one right to take a “reasonable” amount of unpaid time off work to deal with an emergency involving a dependant, which could include making arrangements following the death of a dependant.  There is no definition of “reasonable” for these purposes and it will depend on the circumstances of each case. The Bill will amend the Employment Rights Act 1996 to provide for parental bereavement leave for employees, when that leave can be taken and other rights during and after bereavement leave.  The Bill is expected to become law in 2020 following its second reading in the House of Commons on 20 October 2017.

The lack of a clear definition of “reasonable” amount of time may result in disagreements between you and your employees regarding the appropriate length of leave, so having a policy in place will help you set a consistent foundation for this upsetting situation up until the Bill comes into place.

ACAS has produced further guidance on managing bereavement in the workplace, including additional good practice suggestions for managing an affected employee’s absence and their return to work.  The guidance recommends that you implement advance planning and training to enable your managers to be better prepared in dealing with what can be a difficult issue to handle.  Further useful recommendations from the ACAS guidance includes:

You should also remember that mothers who lose a child after 24 weeks of pregnancy, or during maternity leave, do not lose their entitlement to maternity leave and pay.

  • A written bereavement policy, as this can provide certainty and security during a difficult time for your affected employee
  • Ensuring that details of the death are private under data protection legislation.  It is good practice for you to always ask the bereaved employee how much information they wish to give their colleagues.  If the death was covered in the media, you may need to deal with further queries to the company and manage other employees that might be approached by the media
  • You should be aware of the risk of racial or religious discrimination claims that may arise from refused requests for time off for religious observances on death
  • The effect of grief could lead to physical and mental illnesses
What should I do when an employee reports sexual harassment?

Sexual harassment at work is a serious matter and can make an employee’s life at work a misery; seriously affecting their performance.  If you receive a complaint from an employee who is experiencing sexual harassment of any type, you have a legal, ethical, and employee relations obligation to fully investigate the allegations.

The number one rule is to always investigate and treat the complaint seriously while an investigation is being carried out.  Even in circumstances where you have heard rumours of sexual harassment, you must investigate the potential harassment by first consulting your HR department and your policies and procedures for dealing with harassment.

You should avoid making assumptions and reaching premature conclusions, ensuring the protection of all parties while allegations are being investigated.  Failure to investigate fully and impartially by interviewing all relevant parties can undermine your employee’s trust and confidence in you, and thus open up the business  to a potential claim.  Employment Tribunals take into account whether an organisation took “reasonably practicable” steps to avoid discrimination when deciding if the employer was at fault, but the expectations upon an employer are high.

Dealing with a complaint informally may have the desired result of stopping the behaviour that is causing distress, as once someone realises that people find their behaviour objectionable they often stop.  When taking formal action you should make and keep written records of all meetings.  Once you have obtained all the information possible, you should prepare a written report that outlines the facts of the case and the findings.  The report should be made available to both parties at the same time and once a decision has been made, you should communicate in writing to inform both the complainant and the person against whom the complaint was made.  You will then need to decide whether or not your disciplinary procedure should be invoked or some other action taken, such as providing training or counselling.

Reintegration into work may be necessary following the outcome of the investigation as it can be difficult for people to resume work as if nothing has happened.  It is therefore important that you can provide a framework of support, which could involve counselling services, ensuring that the employee returns to an environment that is safe and neutral.

How do I manage office romances?

Close working relationships can result in a much happier and more productive work environment, therefore you should encourage your employees to get to know one another socially and professionally.  There is however always a possibility that such friendships will develop to romantic and/or sexual relationships and with employees spending nearly as much time at work as they do at home, it is easy to understand why it is commonplace for personal relationships, not just friendships, to be formed. 

Opinions differ on whether office romances have a positive effect in the workplace.  You should be wary when dealing with office romances as they could be a distraction for the employees involved and their colleagues.  You might also be concerned about reputational damage if your employees behave inappropriately and there is a possibility of discriminatory treatment occurring during or following the breakdown of a relationship.  The breakdown of a relationship may give rise to claims of discrimination or harassment, for which you may be found liable.

When taking action such as the moving of employees involved in office romance to work in different teams, you must try to avoid a discriminatory approach (e.g. moving the younger female employee from reporting to the older male).  You also need to consider unfair dismissal law if your employees have at least 2 years length of service.  Also, you have to be mindful to the impact on others in the workplace and so ensure that if one employee reports to the other they have fair policies to deal with promotions and pay reviews that might be influenced by the fact they are in a relationship. 

There are a number of ways in which office romances can result in disruption in the workplace.  One example is an office relationship causing friction where holiday bookings become an issue.  Given that your liability for discrimination and harassment in the workplace depends on the measures you have put in place to avoid such conduct occurring, it may be prudent to consider a policy addressing personal relationships.  A more practical idea is to implement a company-wide dating/relationships policy that outlines what is, and is not, acceptable when it comes to personal relationships at work.

A well-worded disciplinary/misconduct policy will generally be sufficient to cover any serious inappropriate or sexual conduct in the workplace.  When determining whether a relationship ought to be disclosed, the onus should be put on your employees concerned to consider how the relationship might impact the workplace.

This may encourage a more open practice of disclosure to allow you to assess whether you need to take steps to prevent any adverse effect on the workplace.

Can I retract an offer of employment based on a DBS check?

You should only request information about an applicant’s criminal convictions if the information can be justified in terms of the role offered.  If it is justified, you should make it clear that spent convictions do not have to be declared, unless the job being filled is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974.  You need to consider whether the offer of employment should contain any conditions, and where an offer of employment is conditional this must be made clear to the potential employee.

Particular occupations may have specific requirements for a DBS check to be undertaken before employment can be commenced.  The Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) sets out a system which is intended to prevent barred individuals from working in “regulated activity” with children and from working with adults in certain situations.  In other situations, you may wish to ask job applicants about their criminal record.

Subject to certain exceptions, a person who has been convicted of a criminal offence but who does not re-offend during a specified period from the date of conviction (the rehabilitation period) is considered to be rehabilitated and their conviction becomes “spent”.  Then, unless one of the exceptions applies, they will be entitled to hold themselves out as having a clean record.  During the rehabilitation period, the conviction is “unspent” and should be disclosed in response to a request for details of the individual’s criminal record.

The excepted occupations, offices and professions are set out in DBS guidance and fall into five broad groups:

  • Professions (such as medics, lawyers, accountants, vets, chemists and opticians)
  • Those employed to uphold the law (such as judges and officers of the court, the police, prison officers and traffic wardens)
  • Certain regulated occupations (such as financial services, those in charge of certain types of nursing homes, taxi drivers and firearms dealers)
  • Those who work with children, provide care services to vulnerable adults or who provide health services. The operation of the SVGA 2006 is of particular relevance to this group of workers
  • Those whose work means they could pose a risk to national security (such as air traffic controllers and certain Crown employees)
How do I encourage my employees to spread annual leave over the year?

Allowing employees to build up their annual leave may prove to be problematic as it could lead to low morale and productivity as a result of not taking time away from the workplace.  You should therefore encourage your employees to use up their annual leave by spreading it out over the year.

Logistical difficulties can also arise if your employees try to use up their remaining annual leave towards the end of the leave year period, which can sometimes be at a company’s busy period.  Line Managers and HR are often tasked with the responsibility of monitoring employee annual leave, however employers should ensure that they stay on top of holiday policies in order to avoid excessive amounts of leave outstanding.   There are some useful guidelines for you to consider when dealing with annual leave:

It is important that you do not overlook the importance of employees taking annual leave as this can result in your employees feeling guilty for requesting annual leave, or fearing their colleagues will struggle in their absence.  Workloads may prevent annual leave at busy times and you may take a more tolerant approach towards an employee who has been unable as opposed to unwilling to take annual leave.  You should ensure that annual leave is planned in such a way that the department has adequate cover at all times.

  • Buying out employees’ annual leave entitlement –  you cannot give employees payment in lieu of the minimum statutory annual leave
  • Allowing employees to carry over excessive holiday to a new year – you should check contracts of employment and your company policies and procedures to ascertain whether this is permitted under the holiday policy.  Annual leave is provided for health and safety purposes and to avoid accidents that can come through lack of rest and/or mental health issues arising.  We would always advise that carry over should be used sparingly to avoid personal injury liability arising
  • Allowing too many employees to take annual leave at the same time – you should have a clear policy on annual leave requests i.e. on a first come, first served basis.  Many employers experience an influx of annual leave requests for the summer and Christmas periods.  This can be avoided by requiring certain levels of leave to be taken at certain times of the year i. e. one week in the spring period, two weeks in the summer and one week in the winter with each period being defined
  • Regularly review – you should be aware of whether or not employees have taken annual leave and regularly remind them how much annual leave they still need to use up.  Some employers benefit by providing their employees with a quarterly reminder of the balance of their annual leave remaining to be taken.
When can a ‘joke’ amount to harassment?

Legally speaking, harassment is defined by the Equality Act 2010 as a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.  The unwanted conduct must relate to B’s age, disability, gender, race, gender assignment, religion or belief, sex, or sexual orientation.

In an incident involving a group of men dressed up as female nurses for a fundraising for a Hospital Trust, the Trust rejected the money stating that the ‘presentation of men dressed as female nurses in a highly sexualised and demeaning way is wrong, very outdated and insulting to the profession.’ The men insisted they will continue the nurse uniform theme as part of the fundraising event next year because they were ‘just having a bit of fun.’

In a similar incident in Wales, a Jamaican Bobsled team issued a statement following a “Cool Runnings” themed carnival float.  The entrants, dressed in costumes and long dreadlocked wigs, had also painted their face black causing offence to some spectators.

Although both incidents took place outside the workplace, it is a reminder that a one-off incident can amount to harassment, even if an employee has put up with the conduct for a long time or joined in on the ‘joke’ or ‘banter’.  An Employment Tribunal may find that the conduct is unwanted and a form of harassment so it may be pertinent for you to consider your employees receiving regular equality and diversity, and bullying and harassment training. 

Can I dismiss an employee for repeatedly making mistakes under misconduct, capability or something else?

If an employee has more than 2 years service they are protected from unfair dismissal and you must therefore show that you had a fair reason to dismiss following a fair procedure.  The onus is on you to show that the dismissal is for one of the five potentially fair reasons:

  • capability or qualifications
  • conduct
  • redundancy
  • illegality
  • some other substantial reason

Sometimes you may have difficulty in deciding which of the statutory reasons applies to the employee’s actions.  It would be good practice for you to state the reason for dismissal expressly, and where there is a genuine uncertainty as to which of the reasons apply, state in the alternative. However, reasons should not be stated in the alternative unless there is genuine uncertainty because Section 98 of the Employment Rights Act 1996 requires you show the reason or, if more than one, you should state the principal reason.

In cases of repeated mistakes by an employee, it may be possible to fairly dismiss the employee for a reason that relates to capability or conduct. There is always the potential for a degree of overlap between conduct and capability so you must ensure that the employee is informed what the allegation is and that investigations are carried out appropriately.

A deliberate decision to behave in a particular way is likely to result in a conduct issue whereas an attempt to behave appropriately which does not reach a satisfactory standard would be an issue of capability. Before dismissing any employee for incompetence, you should normally have met with the employee, warning them about the standard of work and allow them the opportunity to improve.   It is then for the Employment Tribunal to decide whether you acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee.

What are the implications if my employee works while on holiday?

Under the Working Time Regulations 1998, workers are entitled to 5.6 weeks’ paid holiday per leave year.  For an employee working a 5 day week this equates to 28 days’ paid leave including bank holidays.  Part-time workers would be entitled to the equivalent pro rated amount.   The main aim of holiday entitlement is guarding worker’s health and safety by allowing a period of rest from work and it is for this reason that pay in lieu of statutory holiday is prohibited except where the worker’s employment is terminated.

Technological developments have seen an increase in integrated systems that allow access to work material on home and portable devices.  The impact of employees working on holiday may result in stress-related illness and further lead to long-term sickness and absence from work.  Although it is largely untested, there is a possibility that one of your employees could bring a claim against you for not permitting them to take their statutory holiday entitlement in breach of the Working Time Regulations.  There is also the potential of an employee bringing a personal injury claim for work related stress, anxiety or depression which may also amount to a disability under the Equality Act 2010.

You can minimise the risk of such claims by investigating the root cause of your employees working on holiday and this could bring to light issues of capability or capacity in the business.  You can also implement policies that prohibit work while on holiday as an additional measure to minimise the risk on workers and possible claims.

Can I put a pregnant employee through a performance management procedure?

It is a common misunderstanding that pregnant employees have special protection throughout their pregnancy and cannot be dismissed or given disciplinary or performance related warnings. A pregnant employee should generally be treated in the same manner as all other employees (subject to making any adjustments required to protect the employee’s health and safety or discounting any pregnancy related illness).

The misunderstanding stems from the language used in discrimination legislation which protects pregnant women during what is known as the “protected period”.  It is unlawful during the protected period to treat a woman less favourably on the ground of her pregnancy, as a result of pregnancy-related illness or on the ground that she is exercising or seeking to exercise a statutory right to maternity leave.  No comparator is needed and no justification defence is available.

It is worth noting that when a woman falls ill with a pregnancy-related illness, such as post-natal depression, after she returns from maternity leave, that illness is not subject to any special protection.  The protected period is defined as beginning with the pregnancy and ending at the end of the maternity leave period or, if the woman returns to work before then, when she returns to work.

There are a number of points you would need to consider before proceeding with the performance management procedure, which are as follows:

  • Do concerns about the pregnant employee’s performance pre-date her pregnancy and has a formal or informal process commenced?
  • Has the pregnant employee’s performance reduced since her pregnancy?
  • Have you investigated what the reasons for the change in performance are and whether this relates to the employee’s pregnancy?
  • Have any risk assessment processes been initiated to identify any relevant risks and if you have taken any measures to address any identified risks?

You do not necessarily have to stop the performance management procedure simply because of the employee’s pregnancy.  However, it may be a case of adjusting performance targets to accommodate the pregnant employee, for example,  where long working hours are required to achieve set targets which might put the pregnant employee’s health at risk.  You might also take into consideration any difficulty in achieving targets due to pregnancy-related absences or medical appointments.

If the reasons for a pregnant employee’s poor performance is not related to her pregnancy, then you can commence the performance management process. Before commencing this process however, you may need to obtain medical evidence and/or consider whether a non-pregnant employee would be treated the same if their work was below expected standards.

Is an employee entitled to paid time off for teacher training days?

Employees are automatically entitled to time off for dependants in the case of an emergency, however as teacher training days, or inset days, are usually planned ahead, these do not fall within the remit of time off for dependants rights.  Time off for dependants can vary from employer to employer as there are no regulations regarding the amount of time off granted to each employee, and conditions surrounding pay.  There are numerous situations which could classify as an emergency, such as illness, injury or assault, or disruption of care arrangements.

In order to have time off for teacher training days, these would need to be taken as part of an employee’s holiday allowance, alternatively they can be unpaid through parental leave rights.  Eligible employees can take unpaid parental leave to look after their child’s welfare, for example if they wish to spend more time with their children, settle them into new childcare arrangements etc.  Each parent is entitled to 18 weeks’ leave for each child and adopted child, up to their 18th birthday.  There is a limit to how much leave can be taken each year which is 4 weeks for each child.  Parental leave must be taken as whole weeks rather than individual days, and so may not be appropriate for teacher training days, unless you have agreed to this directly or if the child is disabled.   Certain criteria must be met in order to be eligible for unpaid parental leave, including that your employee has been with you for at least a year, they are named on the child’s birth or adoption certificate or they have parental responsibility (which could extend to a foster parent if granted through the Courts), they are not self-employed or a ‘worker’, and the child is under 18.

You should be equipped for these scenarios through a time off for dependants, or parental leave policy, which should refer to eligibility and entitlement.  It is essential that all employees are treated fairly and consistently across a business to minimise the risk of tribunal claims.

How do I dismiss an apprentice?

Apprenticeships can be beneficial to both your business and the apprentice.  An apprenticeship is usually set for a fixed term, however complications often arise if you are looking to dismiss an apprentice before the expiry of the fixed term and will depend on the type of agreement/contract drafted and the clauses contained within the agreement/contract itself.  It is only in very limited circumstances that you can dismiss an apprentice during the apprenticeship if they have a common law Contract of Apprenticeship. This is a very traditional type of apprenticeship whose primary purpose is training and the work performed is secondary, which is why the apprentice has enhanced protection from being dismissed.  These apprentices are entitled to damages which take into account their loss of earnings, training they should have received for the remainder of the term and loss of future career prospects.

You have far less scope when looking to dismiss an apprentice with a Contract of Apprenticeship in comparison to an ordinary employee as misconduct in the normal employment context will not be sufficient. The apprentice’s actions must be so extreme that the apprentice is effectively ‘unteachable’.  Even where a clause setting out the circumstances in which the apprentice could be dismissed, the misconduct would still need to be significantly higher than that of an ordinary employee. 

Apprentices employed under a common law Contract of Apprenticeship cannot be dismissed by the usual reasons of redundancy. If this is to be applied there must be a complete closure of your business or your business undergoes a fundamental change to its character.  An apprentice with a Contract of Apprenticeship who is to be dismissed at the end of the fixed term would be for some other substantial reason and not redundancy.

An apprentice in these circumstances can also end the apprenticeship by mutual consent; however you may want the comfort of a settlement agreement to prevent the apprentice from asserting these statutory rights in the future.

If the apprentice is employed under an Approved English Apprenticeship Agreement or an Apprenticeship Agreement, they can be treated as any other employee, however, the normal principles of breach of contract and unfair dismissal claims still apply.  It is therefore crucial that you issue apprentices with a compliant statutory agreement which gives you the control and flexibility to performance manage under-performing apprentices as you would any other employee in the business.

Are employees automatically entitled to bank holidays off?

It is up to you whether or not employees have to work on bank holidays as there is no statutory right for employees to take bank holidays off work.  Any right to time off will depend on the terms of their contract of employment.

If an employee has to work bank holidays because their contract does not have a provision for them being holiday, there is no statutory right to extra pay.  Again a right to any extra pay would depend on the terms of their contract of employment.

If an employee is required to work on bank holidays under the terms of their employment contract, then they cannot refuse to work even if for religious reasons. However, refusal to grant Christian employees time off for any of the bank holidays with religious significance could amount to indirect religious discrimination if it puts them at a disadvantage compared to employees of other faiths/non religious employees. Similarly if other faiths are refused time off on their days of religious significance, albeit that they are not bank holidays, that too could amount to religious discrimination.

You can ask your employees to take annual leave on a bank holiday; under the Working Time Regulations, you can give notice to your employees to take annual leave on specified dates.  Unless there is an agreement to the contrary, you should give notice twice the length of the holiday period that the employee is to take.

You should be aware of the bank holiday rights of part-time and shift workers, workers on maternity leave, paternity, and adoption and shared parental leave.  Part time workers and those on these types of leave have the right not to be treated less favourably than a comparable full time worker which does include entitlement to bank holidays.  In this instance the best approach it to give part time employees a pro-rated allowance of paid bank holidays, irrespective of whether or not they normally work on the days on which bank holidays fall.

What does dismissal for some other substantial reason mean?

Under the Employment Rights Act 1996 there are five potentially fair reasons for dismissing an employee.  These are:

  1. Conduct
  2. Capability
  3. Redundancy
  4. Breach of a statutory restriction
  5. Some other substantial reason of a kind to justify the dismissal (SOSR)

SOSR is a catch all potentially fair reason for dismissal and there is no statutory definition of the term or any statutory guidance; relevant authorities on this point show only that the reason must be ‘substantial’.  As long as the reason for dismissal is not frivolous or insignificant then it may be substantial; however the interpretation is subjective and will depend on the facts of the case.

The test for unfair dismissal in the context of SOSR has two stages. The first is that you must show that the SOSR is the sole or principal reason for the dismissal.  Secondly you must show that the decision to dismiss for SOSR was reasonable in all the circumstances.  At this second stage the Employment Tribunal will need to investigate the reasonableness of the dismissal but the burden of proof is neutral.

Some common examples of SOSR are:

  • Business reorganisation - this is where cases do not give rise to redundancy situations within the statutory meaning but where SOSR can be relied on
  • Protection from competition - where an employee acts in a way which falls short of a breach of duty and therefore it cannot be a conduct issue, or where the situation creates a conflict with your interests, you may be able to dismiss by relying on SOSR
  • Personality clashes or irreconcilable differences can amount to SOSR - the conflict would have to be causing substantial disruption to your business

There has been some confusion over whether the ACAS Code applies to SOSR dismissals because they are not expressly excluded from the Code.  There is various case law on this point and it can be said that where elements of the ACAS Code are capable of applying in a SOSR situation, they should be so applied. In addition, you should follow the ACAS Code where events leading up to or connected with the dismissal have included disciplinary proceedings, even where the ultimate reason for dismissal is not misconduct or poor performance.

How should I manage flexible working requests?

Employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason, which must be done in writing.  You then have three months within which to consider the request, unless otherwise agreed, discuss it with the employee at a meeting and notify the employee of the outcome. Only one request can be made in any 12 month period under the statutory scheme.

An eligible employee may request a change to their employment terms such as, the hours they work, the time when they are required to work and/or a change to the place of work (i.e. home and any workplace).

To be valid the request must be in writing, be dated, state that it is an application made under the statutory procedure, specify the change they are seeking and when they want this to happen.  The request should also explain what affect that employee thinks the change would have on you and your business and how this could be dealt with.  The request should state whether the employee has previously made a flexible working request.

You can only refuse a request for one of the eight reasons set out in the Flexible Working Regulations.  These are as follows:

  • The burden of additional costs
  • Detrimental effect on ability to meet customer demand
  • Inability to reorganise work amongst existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Insufficiency of work during the periods the employee proposes to work
  • Planned structural changes

If the employee fails to attend a meeting arranged to discuss the request, without good reason, then you may treat the request as having been withdrawn.

An employee however can complain to an Employment Tribunal if you fail to deal with their application in a reasonable manner, fail to notify them of the decision on their application within the decision period, fail to rely on one of the statutory grounds when refusing their application, base your decision on incorrect facts or if you treat the application as withdrawn when the grounds entitling you to do so do not apply.

The statutory scheme is supported by two ACAS documents which are readily accessible; the relevant ACAS code suggests you should consider requests carefully and weigh up the positive and negative affect on your company.

Legislation does not provide for trial periods for flexible working requests, however there is nothing to prevent you agreeing to one with the employee, and this is encouraged by the ACAS guide.  Any trial agreement should be set out in writing and review dates should be put in place for reviewing the arrangement and making any adjustments.

The legislation also does not expressly require you to allow your employee to appeal against the rejection of their request, however the ACAS code suggests that they should be allowed to do so. Therefore this may come within the statutory obligation to deal with requests in a reasonable manner.

It is advisable to have a policy in place setting out the procedure to be followed where a flexible working request is made.

What I should do if I catch my employees on Facebook during working hours?

Social media plays a large part in many companies marketing strategies, plays a large role in our every day lives and it is how many people communicate with their friends and family, but it can be abused by employees during the working day.  It is important that you have a social media policy in place so as to ensure appropriate professional behaviour of staff whilst using social media sites and apps.  It is good practice for you to keep the social media policy up to date as technological changes and social media trends are fast changing and policies need to be kept relevant.

Use of social media platforms in the workplace could have a negative impact on the efficiency and productivity of employees, so a social media policy should detail whether use of social media sites is acceptable during work hours.  It should go on to explain the potential consequences of being caught using social media during prohibited times, for example, whether this would be classed as misconduct and therefore result in disciplinary action, including dismissal.  A social media policy should also outline the range of consequences available to you if an employee does anything to bring the company into disrepute, for example, making inappropriate or defamatory comments on Facebook.

If a social media policy is well established and understood by all employees then they will be aware of what is and isn’t acceptable.  It may even be appropriate to provide training on this topic to ensure that all employees understand the consequences of social media misuse.

It will be up to you as the employer to decide on the severity of any action to be taken when catching an employee on Facebook or other social media platforms during prohibited times, and this will of course vary depending on your industry, size of business, regularity of the misuse etc.  If misuse has taken place, you should follow the process set out in your policy, act reasonably when reaching an outcome and remain consistent.

Can I make my employees work overtime?

Employees can only be required to work overtime, whether paid or unpaid if it is provided for in their employment contract.  If you require employees to work overtime then you should ensure there is an express provision in the contracts of employment that you offer to your employees.

The employment contract should state whether the employees will be paid for overtime that they work and if so at what rate.  The contract could also provide for time off in lieu of any overtime worked, however there is no automatic right to pay or time off in lieu for an employee who is required to work overtime in their contact.

It is usually the case that employees are expected to work overtime from time to time to meet the reasonable requirements of the business and this is how it would be worded in an employment contract.

If you would like to introduce an overtime system you should consider issues such as the process for requesting and authorising overtime and arrangements for how this would be paid.  At the same time you would need to consider your duties under the Working Time Regulations 1998 to ensure that your employees are having sufficient rest breaks and not working more than 48 hours per week, if they have not signed the relevant opt out agreement.

You should also take into account recent case law on the treatment of overtime in calculating holiday pay.  Whether overtime should be included when calculating holiday pay depends on the wording of the employment contract, the hours worked by the employee and whether the overtime is guaranteed or voluntary.

How should I manage volunteers?

Organisations such as charities rely heavily on volunteers but there are some points organisations of this nature should consider when offering volunteering positions.

The legal status of volunteers is not clear cut and the ambiguity can make it difficult for you to appreciate any legal obligations you may owe volunteers.  Volunteers are not usually employees and will have a very different relationship with the organisation.  In order to ensure good practice and protect volunteers and itself, you should be proactive in ensuring that your policies and practices, which define your relationship with your volunteers, are consistent with the voluntary informal nature of volunteering.

You may wish to use documentation which defines what the volunteer will do and separate them from employees.  It is important to set out the boundaries of the role to the volunteer as soon as they begin working.  Volunteers’ agreements should be less formal than an employment contract and tailored to fit the nature of the relationship.  Any agreements you put in place should avoid using language that makes the arrangement sound contractual. The agreements can still hold information such as recourse if they have a complaint, however the process does not have to be as detailed as that you would use for employees.  You should avoid entering into a situation where individuals who you regard as volunteers are actually classed as employees by the law and are therefore entitled to employment rights.

It is good practice to reimburse volunteers for out of pocket expenses and this should be clearly identified as reimbursement for expenses and done using receipts as evidence.  You should otherwise avoid making payments to volunteers; they will only be entitled to be paid National Minimum Wage if they are workers and are not ‘voluntary workers’.

If you are a provider and manager of regulated health, child and adult social care services you must ensure that all staff, including volunteers, who come into contact with children or vulnerable adults have a satisfactory DBS check. 

How often I should do appraisals and what should I discuss?

There is no legal requirement for employees to be appraised however it can be a useful tool to support performance and make a note of any poor performance.

An effective appraisal system can lead to positive results such as an employee’s performance and increased motivation and this in turn will benefit you as the employer.

You may be avoiding appraisals for several reasons; you may treat it as a tick box exercise with no meaningful outcome, or you find conversations on poor performance difficult.  If you want to adopt a fair reason and dismiss a poor performing employee, not having conducted appraisals could become an issue down the line.  Without formal appraisals the issues are unlikely to have been recorded, even if raised with that employee in person.  In the absence of written documentation on previous discussions on this topic or the implementation of a plan as to their improvement there will be no paper trail to prove any consistent performance failures by the employee.

In other situations an employee may be oblivious to their shortcomings and so will not have been given the opportunity to improve. Appraisal scores could also be useful to you in a redundancy selection process.

Having set annual appraisals enables you to reflect on particular observations made of an employees performance, whether positive or negative.  An annual appraisal however could mean opportunities to learn from those situations may have been lost due to the time period since the last review, therefor you may wish to use an ongoing performance review or a series of mini-appraisals throughout the year.

During the appraisal you should consider whether your employee has met any set targets but also identify how this has been achieved.  Using this structure will enable you to discuss the skills the employee has obtained and developed as well as those that could be improved.

The appraisal is also a time for the employee to address their performance, discuss their future with the company, identify training needs and raise any concerns.  Together, both you and your employee should agree a number of specific action points, targets or objectives which can be followed up throughout the year.

It is important for you to use an appraisal system which fits your company specifically and to train your managers, and those giving the appraisals, to apply a fair approach to all employees.

What should be included in an Apprenticeship Agreement?

Apprenticeships are a complicated area which you require assistance with in terms of drafting the necessary agreements.

There are three types of apprenticeships:

Contract of Apprenticeship

This is a contract under common law with a main purpose of training. There is no fixed term and no particular form is required. Apprentices under a contract of apprenticeship have enhanced rights on termination.

Apprenticeship Agreements

This is a statutory form of apprenticeship introduced by The Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA). The main purpose of this agreement is to provide work. This form of apprenticeship is for a fixed term and they are required to be in a prescribed form.

Approved English apprenticeship agreements

These apprenticeships have been in force since 26th May 2015. They were meant to be a simplification of previous law, with the prescribed form of these agreements linked to a relevant ‘standard’.

Looking into more detail at the second type, Apprenticeship Agreements, there are some mandatory clauses which are required to ensure that it is an apprenticeship agreement.

  1. The apprentice must undertake to work for you, the employer
  2. The agreement must state that it is governed by the law of England and Wales.
  3. The agreement must be in the "prescribed form". This means that it must:
    1. contain the basic terms of employment required to be given to employees under section 1 of the ERA 1996; and
    2. include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework.
    3. The agreement must state that it is entered into in connection with a qualifying apprenticeship framework. An apprenticeship framework is a specification of requirement that will lead to an apprenticeship certificate. The requirements specified must be at a particular level and relate to a particular skill, trade or occupation.

Other fundamental rules of apprenticeship agreements are that the duration of the apprenticeship should be a minimum of one year, the apprentice should work at least 30 hours a week and the agreement must be signed; this can be done by the apprentice even if they are under 18 years old.

If the fundamental clauses of the apprenticeship agreement are not included then you are at risk of having created a contract of apprenticeship, which gives the apprentice enhanced employment rights on dismissal, or they may have inadvertently made the apprentice an employee.

How should I manage summer work experience students?

Work experience is an important way for young people to gain insight into the working world and time spent within a business can help inform and shape their career decisions.  There can also be business benefits to offering work experience placements to young people, namely that they can often bring fresh ideas and new approaches which can give a different perspective and also that other employees could benefit from developing skills in managing young people.

The school summer holidays are the common time when you may wish to offer school-age children the opportunity to carry out work experience at your company, however it is important for you to consider all rules and restrictions around employing young people, including rules on working hours. Young people are entitled to daily rest breaks of 12 consecutive hours, a rest break of at least 30 minutes if the working day is longer than 4.5 hours and two days off per week.  You do not have to a pay a child of compulsory school age whilst on work experience if their placement is less than 1 year.

DBS checks are not compulsory for staff supervising participants aged 16-17; a DBS check would only be required if an employee’s specific job purpose included looking after under 16 work experience students.

You should check health and safety guidelines on offering work experience placements, which can be found on the Health and Safety Executive website.  The guidance has been simplified in recent years and has been made clear that if you already employ young people (those under 18), risk assessments won’t need to be repeated for work experience students.

Your liability insurance may now cover work experience students if your insurers are members of the Association of British Insurers; you should check this with your insurance company to ensure you are adequately covered.

What is the legal position on maximum office temperatures?

The Workplace (Health, Safety and Welfare) Regulations 1992 state that the temperature in the workplace needs to be ‘reasonable’. The Workplace Regulations 1992 approved code of practice does give guidance for you on minimum temperatures; however it does not state a maximum temperature.

The Health and Safety Executive has defined an acceptable zone of comfort for most people in the UK as between 13 degrees Celsius and 30 degrees Celsius but takes into account jobs which consist of more strenuous activities and therefore should be at the lower end of that scale. What is reasonable will depend on the nature of the workplace and the activities undertaken.

If a significant number of employees are complaining about the thermal discomfort you should carry out a risk assessment and then act on the result of that assessment.  Thermal discomfort includes the sources of heat in the workplace as well as personal factors such as clothing and work related factors such as the physicality of the work.

The Health and Safety Executive has guidance on how to control thermal comfort in the workplace which includes tips on clothing, such as evaluating uniform designs and materials or dress codes to improve thermal comfort.  Other more obvious tips are to provide fans and allow employees to open windows.

If employees wear Personal Protective Equipment (PPE) then this can increase the thermal discomfort in the workplace.  In this situation you should ensure that those employees are not wearing more PPE than is necessary but also be aware that removal of the PPE could be a risk.

By managing thermal comfort you are likely to improve moral and productivity as employees working in uncomfortable hot or cold environments could potentially act unsafely because their ability to make decisions or perform tasks deteriorates.

 

If you have a question that is not covered above, then you can contact the team on 023 8071 7717 or email employment@warnergoodman.co.uk

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