Am I expected to pay my employees if they arrive late or can’t get to work at all in bad weather?
An employee has received a medical statement from their gp indicating that they may be fit for work. What does this mean?
Do employees lose their annual leave entitlement if they are off sick?
Do you need a grievance procedure and what should it contain?
How can you establish why there is a high turnover amongst your staff?
How do I check if someone has the right to work in the uk?
How do I protect my business against the costs of an employment tribunal claim?
How should I deal with work-related stress?
How should I manage employees who regularly fall ill and take odd days off sick?
How should you deal with employee absence if they are delayed returning from holiday?
How do I recruit the right person?
I am actively recruiting new employees. what are my main legal obligations?
If you employ a young worker during the school holidays, what restrictions should you be aware of?
One of my staff has requested to change their working hours. Do I have to agree?
As an employer, what are my responsibilities when planning an office party?
When is an individual working for me not considered to be an employee?
What is the current level of statutory maternity pay?
What is the current level of statutory sick pay?
What is the National Minimum Wage?
There is no obligation to pay your employees if they arrive late or fail to attend work altogether, unless there is specific provision for such absence to be paid in the contract of employment. The onus is on the employees to get to work and you are obliged to pay them only where they are ready, willing and available for work - even though their absence or lateness in these circumstances would be through no fault of their own. A failure to pay an employee in this situation is not an unlawful deduction of wages under the Employment Rights Act 1996.
However, if your employees are having problems getting to work because of public transport disruptions or because their child’s school is closed, you may wish to consider making some accommodation for them. You could encourage them to explore alternative means of transport - other public transport options, walking, cycling or car-sharing with other employees etc. If an employee is still unable to attend work, you may wish to give consideration to whether they could usefully work from home until the situation improves, or whether they could make up the time at a later date. If these are not viable options, other alternatives would include taking unpaid leave or paid annual leave.
From 6 April 2010 the old sick note changed to become a ‘’Statement of Fitness for Work’ form or ‘Fit Note’.
Under the sick note system, doctors could only advise their patient on whether their health condition meant that they should or should not work.
However, many people with health conditions can, with some basic support from their employer, work as they recover from their condition. To help more people get the support they need to get back to work the new fit note system means that doctors can advise whether employees are either:
- Unfit for work or
- May be fit for work
A doctor will give a ‘may be fit for work’ statement if they think that their patient’s health condition may allow them to work if they get suitable support from their employer. For example, a phased return to work, altered hours, amended duties or workplace adaptations. If it is not possible for employers to provide the support to enable employees to return to work then the statement should be treated as if the doctor had advised the employee was unfit for work (Please note: obligations under the Equality Act have not changed). If, however, an employee is too ill to work the doctor will advise this just like with the old sick note and will give a ‘unfit for work’ statement.
The fit note system can provide real benefits to both employees and the business and should form a fundamental part of your sickness absence procedures.
There have been three important rulings from the European Court of Justice (ECJ), House of Lords and Court of Appeal during the past three years on the relationship between holiday rights and sickness that need to be considered when looking at this issue.
Firstly, in the case of Stringer v HMRC (2009), it was held that employees can accrue holiday pay whilst on long term sick leave and, if the entitlement is unable to be taken during the current annual leave year, it can be carried forward to the next annual leave year.
Secondly, the Pereda (2009) and ANGED (2012) cases in the ECJ have established the principle that a worker who becomes sick during a period of scheduled annual leave is entitled to take that annual leave at some other time when they are not ill, irrespective of when the incapacity for work first arose.
Thirdly, in the recent case of Larner, the Court of Appeal has ruled that employees on long term sick leave are entitled to automatically carry forward annual leave into the next holiday year, even if the employee has not requested this.
It is, therefore, essential for businesses to ensure that effective procedures are in place to control long term sickness absence and to support employees to get them back into the workplace as soon as they are able to return. If an imminent return is not possible, other approaches should be considered, such as reasonable adjustments in the workplace or, ultimately, dismissal on the grounds of capability.
DO YOU NEED A GRIEVANCE PROCEDURE AND WHAT SHOULD IT CONTAIN?
The grievance procedure is the formal process by which an employee may raise any complaints about the behaviour of the employer towards them. Employees have a statutory right to access a grievance procedure and there is an implied duty for employers to reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have. Employees are entitled to have their grievances dealt with, and any failure on the employer's part to deal with a genuine grievance would potentially give the employee the right to resign and claim constructive dismissal.
Since the statutory discipline and grievance procedures were repealed in April 2009, guidance should now be sought from the ACAS code and guidelines which apply to discipline and grievance situations. The ACAS code is used as a benchmark by employment tribunals when considering the fairness or otherwise of an employer's procedure and actions.
It is in the interest of all concerned to try and resolve any problems informally in the first instance and managers should be trained in how to deal with problems at an early stage to stop them escalating.
If any problem is unable to be resolved informally then employees should be given the opportunity to submit a formal grievance in writing and the employer must respond by arranging a meeting with the employee at which the employee has a right to be accompanied by a work colleague or trade union official. The employee’s complaint should be fully investigated by the employer before a response is given in writing to the employee along with the right to appeal against the decision.
If an employee appeals against the decision then the same process should take place but with a more senior manager hearing the appeal. Any decision made as a result of the appeal is the final stage of the grievance procedure.
Whilst labour turnover can be healthy for an organisation, it can also be very costly. There are costs associated with the payroll and HR administration of the leaver, direct costs of recruiting a replacement, management costs in time spent interviewing candidates, costs associated with the induction and training of a new employee and loss of productivity from those leaving and until a new employee is fully trained.
Exit interviews are a simple and effective way to establish why people are leaving. Wherever possible, the exit interview should take place a short time after employees hand in their notice, in private and the interviewer should not be the employee’s direct manager or someone who may be required to write them a reference in the future.
You should explain the purpose of the interview and assure confidentiality. Ask questions which will aid you in establishing the real reasons and influences behind an employee’s decision to leave your business.
If trends are identified as a result, then it would be appropriate for you to consider possible changes to working conditions, terms and conditions, benefits, internal processes and those issues that are specific to departments, including management styles.
If an employee is reluctant to attend an exit interview then you may want to consider an alternative such as an exit questionnaire. Ideally, the business should have a policy informing employees that they may be asked to attend an exit interview to enable the Company to learn how to improve the working experience for staff.
HOW DO I CHECK IF SOMEONE HAS THE RIGHT TO WORK IN THE UK?
Under the Immigration, Asylum and Nationality Act 2006, it is a criminal offence for an employer to employ a person who is subject to immigration control and does not have the right to work in the UK. Employers who negligently hire illegal workers could face a maximum fine of £10,000 for each illegal worker found at the business.
The easiest way to ensure that you are recruiting individuals who have the right to work in the UK is to make your offer of employment subject to original documents being produced to demonstrate their eligibility to work in the UK. Once these documents have been produced and you are satisfied that the individual has the right to work in the UK then a copy of the document should be kept securely in their personal file. However, just because a person is not able to produce the appropriate listed document(s), it is not safe to assume that he or she is living or working in the UK illegally. He or she should be referred to the UK Border Agency and it is at the employer’s discretion if they would like to hold the vacancy whilst this process takes its course.
In order to avoid unlawful discrimination in recruitment practice, you should not make assumptions about a person's right to work or immigration status on the basis of their colour, race, nationality, or ethnic or national origins, or the length of time they have been resident in the UK and therefore all employees are required to prove their eligibility to work in the UK.
Documents which are accepted to ensure eligibility to work in the UK fall into two categories - List A which provides ongoing eligibility to work in the UK and List B which provides limited eligibility to work in the UK for up to 12 months.
HOW DO I PROTECT MY BUSINESS AGAINST THE COSTS OF AN EMPLOYMENT TRIBUNAL CLAIM?
With the average unfair dismissal award now costing just over £10,000, you cannot afford not to deal with your employee problems seriously. Not only does a successful unfair dismissal claim hit your pockets financially with award settlements and legal costs but it also costs you management time in preparing for and defending a claim and also may cost you the reputation of the Company.
There are many simple steps you can take to help reduce or eliminate ex- employees from being successful in making a claim against you. Aside from having a fair reason to dismiss an employee, you must be able to demonstrate that fair procedures were followed with any discipline or grievance issue. Employment Tribunals will judge the fairness of a dismissal against the standards set out in the ACAS Code of Practice – Discipline and Grievance.
Different types of evidence will also support your case in defending a claim and it is therefore vitally important that records are kept, not only to assist with helping you achieve a fair and accurate decision but these records will provide proof that the evidence is reliable and factual. Documents such as terms and conditions of employment, minutes of meetings, witness statements and copies of letters confirming disciplinary action or performance plans can help with this.
Training your managers in these simple steps not only can save you time and money in the long term but also help promote your business as a fair and reputable employer.
Under most circumstances, an employer can assume that employees are able to withstand the normal pressures of work. However, where there are situations that indicate stress, for example, an employee being off sick or making it clear to the employer that they are under extreme pressure, then the employer should take "reasonably practicable" steps to investigate and take action as necessary. The actions must be of substance and could include work re-arrangement, training or counselling but might also include redeployment or even demotion or dismissal if these were the only reasonable steps that could be taken.
Prevention will always be better than cure and in order to manage and prevent work-related stress from happening, employers can look at the following six areas to ensure that employees are not exposed to extreme pressures:
- Role and change
Employees will be able to indicate that they are able to cope with the demands of their jobs and that they are able to have a say about the way they do their work. They will be able to indicate that they receive adequate information and support from their colleagues and superiors and are not subjected to unacceptable behaviours eg: bullying at work.
Critically, when an organisation goes through any change, there must be systems in place to update employees as often as possible and to respond to any individual concerns.
HOW SHOULD I MANAGE EMPLOYEES WHO REGULARLY FALL ILL AND TAKE ODD DAYS OFF SICK?
Employee absences cost the UK economy billions of pounds every year and, for small businesses, it is the inconvenience and additional workload that causes the most disruption and pressure.
As an employer, you have to “control” absence levels, and ensure that employees who take the odd day off here and there are made aware they are being missed within the workplace.
A good start point is to check your absence policies and procedures on how sickness absence will be dealt with, and ensure management are trained to adopt consistence approaches across the business.
Here are some top tips on how businesses can effectively control sickness absence and create an attendance culture:
- Developing absence procedures that are easy to understand is the first step in dealing effectively with both short term and long term sickness absence.
- Ensure reporting procedures, sick pay rules and any triggers for sanctions are clear.
- Train managers to conduct return to work interviews in person and without delay, in order to establish trends and underlying reasons for absence.
- Adopt consistent practices throughout the business to enhance a positive healthy working culture.
- Ensure the Access to Medical Reports Act is used appropriately to allow additional medical information to be sought for related short term and longer term absences.
Travel delays can happen at any time (you only have to think of the volcanic ash situation and the super-storm in New York) and employers need to agree a sensible approach with affected employees on how to deal with their delay back to work. Granting the time off as annual leave entitlement or unpaid leave are clearly the most sensible options. However, whichever policy you adopt, you should ensure that you extend it to any employee who is affected, to retain fairness and consistency in your approach.
If an employee is delayed returning from holiday due to an unfortunate situation, such as their partner or travelling companion being hospitalised, then you should also consider either granting annual leave or unpaid leave. However, if the Company has a policy on dealing with emergencies then you could grant the additional time off under this policy – paid or unpaid, depending on the policy.
Finally, if an employee falls ill on holiday, you should follow your standard absence reporting procedure and requirements for providing supporting medical information. This may include requesting a doctor's certificate to certify that, at that time, the employee was incapable of work. You should be aware that an employee is entitled to have their holiday classed as sick leave, if the illness started during their holiday. This would result in the employee being paid sick pay during this time and requesting to take their annual leave at another time.
HOW DO I RECRUIT THE RIGHT PERSON?
The choice of who to recruit into your organisation is one of the most important you can make, if not the most important. Getting this process wrong can result in untold cost and time in sorting out the problems it can cause, such as under performance, high staff turnover, loss of service quality, discontent and sometimes disciplinary action.
On the other hand, getting it right first time means you select candidates suited to the job and the organisation, and you are more likely to see better quality and productivity as a result along with lower staff turnover and ultimately higher profitability.
First and foremost, it is important that you set out the key tasks and responsibilities of the role within a job description. Secondly, a person specification can help you identify the skills, experience and disposition of the ideal person to fulfil the role. It is extremely important to take enough time on this stage as it is critical to finding the right person for the job.
At every stage of the recruitment and selection process, care must be taken not to breach any employment laws, particularly in relation to discrimination. It is illegal to discriminate against a potential candidate on the basis of race, religion or belief, age, sex, sexual orientation, pregnancy or having a child, being married or in a civil partnership, being or becoming a transexual or disability.
Remember to take particular care with:
- The wording of your job advertisements
- Short listing candidates
- The interview process
- How you apply your selection criteria
- Requesting evidence of the right to work in the UK
- Any requirement to answer any pre-employment medical questions (except in certain circumstances)
I AM ACTIVELY RECRUITING NEW EMPLOYEES. WHAT ARE MY MAIN LEGAL OBLIGATIONS?
Employees who are employed for one month or more are entitled to receive a written statement of particulars of employment. This must be provided no later than two months after the employee starts work. An employer can choose to provide the particulars in instalments over the two month period rather than all at once. However, whichever method is chosen, certain details must be provided together in a single document known as the "principal statement", commonly referred to as the “employment contract”.
In addition, in order to prevent illegal working, employers must check that their employees are eligible to work in the UK by checking and retaining copies of certain appropriate documents. Employers who hire illegal workers could face a maximum fine of £10,000 for each illegal worker found at a business.
Finally, the Health and Safety at Work Act 1974 imposes a duty on every employer of five or more people to prepare, as necessary, and bring to the notice of the employees a written statement of the general policy with respect to health and safety at work. This statement must include three areas; the general policy, the organisation to back it up and the arrangements to carry it out.
IF YOU EMPLOY A YOUNG WORKER DURING THE SCHOOL HOLIDAYS, WHAT RESTRICTIONS SHOULD YOU BE AWARE OF?
If you are considering employing school age children or young workers over the holiday period then there are different restrictions applying to both categories.
In law, a "child" is a person who is not over "compulsory school age"; who has not yet lawfully left school. Most local authority by-laws prohibit the employment of school age children in occupations such as hotel kitchens, fish and chip shops and restaurants. I would urge you to contact your local education authority to see if your business would be prohibited from employing school age children.
The employment of school age children is regulated and under the legislation:
- No child may be employed if they are under the age of 14
- They may not be employed for more than 35 hours (or, if under 15, for more than 25 hours) in any one week where the child is not required to attend school
- They cannot be employed before 7.00 am or after 7.00 pm
- They may not be employed for more than eight hours (or, if under 15, for more than five hours) on any day or for more than two hours on a Sunday
- They must receive a rest break lasting at least one hour if they work for more than four consecutive hours.
Note; these apply when the child is not required to attend school, such as during school holiday periods. Please be aware that the restrictions differ during term time.
Before employing a school age child you must apply to the relevant local education authority for an Employment Certificate.
Young workers are those who are over the minimum school leaving age but have not yet reached the age of 18. You must ensure that young workers receive a 30 minute rest period if they are required to work over 4 and half hours in any one shift and also when assessing any risks to health and safety take into account lack of experience, lack of awareness of risk and lack of maturity.
Since 30 June 2014, all employees have a statutory right to ask to change their working hours. Employees must have worked for the Company for 26 weeks or more and may only make one application within a 12 month period.
There is no legal right for employees to be granted flexible working, but employers have a duty to consider any such applications reasonably and seriously and to explain their reasons if they refuse.
If a request is received, the employer must arrange a meeting with the employee to discuss the application. The employee has the right to bring a fellow employee or accredited trade union representative to the meeting. The employer must give their decision in writing within three months of the application.
Employers can refuse the application for any of the following reasons: the burden of additional costs, a detrimental effect on the ability to meet customer demand, an inability to reorganise work among existing staff, the inability to recruit additional staff, a detrimental impact on quality or performance, insufficiency of work during the periods the employee proposes to work or planned structural changes.
AS AN EMPLOYER, WHAT ARE MY RESPONSIBILITIES WHEN PLANNING AN OFFICE PARTY?
Whether you hold the party on or off Company premises, Company rules and procedures still apply. You need to ensure that this is clearly communicated to staff prior to the event. If you are faced with a member of staff breaching your rules of conduct at the event then your normal disciplinary procedures would apply.
As an employer you need to think about how your employees will get home after the event. You have a duty of care to ensure that they do not drive home if they have been drinking, for example ensuring there are adequate alternative methods of transport available from the event such as late night buses and taxis. You would not be expected to pay for these but should ensure they are readily available.
If there is any damage to the venue by an employee, then as the organiser/ employer you may be liable to any costs associated as a result of the damage. However, this would be considered as misconduct and therefore your disciplinary rules would once again apply.
In summary, as an employer you have a duty of care to ensure the safety of your employees and can be liable for the conduct of your employees whilst at a Company event. Your employees have a duty to observe the Company rules and behave accordingly.
WHEN IS AN INDIVIDUAL WORKING FOR ME NOT CONSIDERED TO BE AN EMPLOYEE?
There are a variety of working arrangements employers can consider to respond quickly to external pressures and remain competitive. Contracting-out and using self-employed staff can provide employers with the flexibility they need but employers need to be clear about the basis on which their workers are employed as these affect an individual’s employment rights. Employees are protected by a range of legal provisions in areas such as payment of wages, dismissal, redundancy and maternity, whereas self-employed workers have limited statutory rights.
When an individual is taken on as an employee to work in the service of the employer, then a contract of employment is formed – a contract of service. However, when a self-employed person provides the employer with his or her services, but remains independent, a contract for services is agreed.
In order to help you to decide whether a worker is employed or self-employed there are a series of tests which can help. What degree of control does the individual have on what and how a job can be done? Does the individual form part of the organisation or are they in business and could send a substitute to complete the work on their behalf? Is the business obliged to offer any work and is the individual obliged to complete it? Is the individual paid through PAYE or by invoice? Does the individual have the right to sick and holiday pay or does the business have no involvement if the individual is not available for work? Is the equipment the individual uses provided by the organisation or do they use their own premises, tools and materials?
If, ’mutuality of obligation’ - that is to perform work for remuneration and ‘control’ as the minimum legal requirements - is identified to a sufficient extent, this calls for the existence of a contract of employment.
Pregnant employees are entitled to 39 weeks’ Statutory Maternity Pay:
- The first 6 weeks at 90% of their average weekly earnings before tax, plus
- The next 33 weeks at Statutory Maternity Pay rate (or 90% of the employee’s average weekly earnings – whichever is lower)
The rate of Statutory Maternity Pay is reviewed annually – generally in April. It will increase to £151.10 per week on 5th April 2020.
Statutory Adoption Pay, Statutory Paternity Pay and Statutory Shared Parental Pay are also paid at the same weekly rate as Statutory Maternity Pay (or 90% of the employee’s average weekly earnings – whichever is lower).
Employees who are too unwell to attend work are entitled to Statutory Sick Pay (SSP) subject to certain qualifying conditions:
- They have been ill for at least 4 days in a row (including non-working days)
- They earn at least £120 per week, before tax
- They have notified their employer of their absence in accordance with the requirements of the absence reporting procedure – or within 7 days, if there is no procedure in place.
The rate of Statutory Sick Pay is reviewed annually – generally in April. The rate will increase to £95.85 per week on 6th April 2020.
Statutory Sick Pay is paid for a maximum period of 28 weeks.
|Age Group||April 2019||April 2020|
|NLW Age 25+||£8.21/hour||£8.72/hour|
|NMW Age 21 - 24||£7.70/hour||£8.20/hour|
|NMW Age 18 - 20||£6.15/hour||£6.45/hour|
|NMW Age 16 – 17||£4.35/hour||£4.55/hour|
|Accommodation Offset **||£7.55/day||£8.20/day|
*Apprentices are entitled to the apprentice rate if they’re either:
• aged under 19 or
• aged 19 or over and in the first year of their apprenticeship
*Apprentices are entitled to the National Minimum Wage for their age if they both:
• are aged 19 or over and
• have completed the first year of their apprenticeship
**Accommodation Offset applies when an employer provides an employee with housing as part of their job. In these circumstances, a daily accommodation offset can be taken into account for the purposes of calculating whether or not the National Minimum Wage or National Living Wage has been paid.