Employment FAQs

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• Disciplinary and grievance procedures
• Contracts of Employment and Staff policies
• Discrimination issues
• Redundancy
• Holidays
• Maternity and Paternity rights
• Business transfers
• Compromise Agreements

Disciplinary & Grievance Procedures

In April 2009 the statutory disciplinary procedures were replaced by the new ACAS code of practice.  This means that to not follow the disciplinary procedure to the letter will now no longer lead to an automatic claim for unfair dismissal.  However, despite the ACAS code of practice not being set out in statute, it will be persuasive as far as any tribunal are concerned if an employer fails to at least follow the code. 

Every employer should ideally draw up their own disciplinary rules and procedure and include employees and/or their representatives in doing so.  All employees should be able to at least access a copy of those rules and procedures. 

Having such rules and procedure in place allows everybody to know what the employer expects from the employees and if their conduct or capability falls below that, how those matters will be dealt with. 

Effectively such a procedure should include:-

1. Dealing with minor cases of misconduct or satisfactory performance informally
2. Always establishing the facts by means of an investigation before taking action.
3. For more serious cases, following the formal procedures put in place by the employer which should at least include the following:-

• Inform the employee of the allegations against them and provide them with any documentation relied upon.
• Invite them to a meeting at which they may be accompanied by a work colleague or trade union representative, at which the allegations will be put to them and upon which they are able to make representations
•  Where a disciplinary sanction is given to the employee, allow them a right of appeal.

Grievance Procedure

All employees should be aware of what grievance procedure is in place so that they can with confidence, bring a grievance where appropriate.  Again, this can be as simple as a three stage process:-

1. The employee is aware of who to make a grievance to.
2. The employee is invited to a meeting
3. The employee is allowed to appeal any decision made by the employer.

We are able to assist employers with these processes and provide draft letters and assistance with the format of any meetings. 

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Contracts of Employment and Staff policies

• A contract of employment exists as soon as the employee accepts the job, though it may not be in writing. 
• As the employer you must provide the new employee with a statement of the main terms of their employment within 2 months of them beginning work.  This is not a contract of employment, but merely a statement evidencing what terms they will work under, for example the pay, holidays etc.
• Many employers do provide a contract of employment which incorporates those main terms as well as other terms of employment. We strongly advise that you do so.
• If you  wish to change some of the terms of employment for any employee, then they must be consulted and agreement should be reached.   Otherwise you may have a claim for breach of contract and/or constructive unfair dismissal.  If you are at all unsure in these circumstances then you should seek advice before forcing any change.

Staff policies – all employers have staff policies whether they are written or not.  Effectively these are the rules by which the business work.  It is useful to have these policies contained within the staff handbook so that everyone can refer to it and know what rules apply.  For example, a staff handbook should at least have an equal opportunities policy, a bullying and harassment policy, a discrimination policy and a disciplinary and grievance policy.  Whilst this may be mentioned in the contract of employment, the policy itself would be in the handbook as it would be non-contractual.  There are many other policies that you as the employer could incorporate in the staff handbook, including an absence, electronic communications, family friendly policies and redundancy. 

We are able to provide handbooks tailored to your needs

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Discrimination Issues

Equal pay

• Employees have a right to equal pay for men and women. The right is to equal pay for work of equal value, for like work or for work rated as equivalent. Pay includes basic pay and other benefits from the employment. There is a defence if an employer can prove a "genuine material factor" which justifies the disparity. An employee is entitled to submit a special questionnaire to an employer requesting information about the pay of fellow employees if they feel they may have a claim.

Other types of discrimination

• Discrimination can occur on the grounds of sex or marital status, race or ethnic origin, hours worked, trade union membership, sexual orientation, religion and belief or age.
• Unlawful discrimination arises if a person is treated less favourably than someone else because of their sex (or race etc). The comparison does not have to be with a real person but could be a hypothetical one. In the employment context, the discrimination may arise from a dismissal or another detriment such as harassment or from victimisation. 
• There is also the possibility of "indirect" discrimination where an employee is subjected to a provision, criterion or practice which more employees of that sex (or race etc) would suffer. For example, a requirement that an employee work full-time as opposed to part-time may indirectly discriminate against women.
• There is protection from discrimination at the recruitment stage, during employment and in some circumstances after the end of the employment.
• An employer may have a defence of "genuine occupational requirement" or "qualification" in certain limited circumstances.

Discrimination on the grounds of age

• UK legislation was introduced in October 2006 as a result of a European Union directive..

Discrimination on the grounds of disability

• Employees are protected from discrimination on the grounds of disability.
• A disability is a physical or mental impairment which has a substantial and long-term effect on a person's ability to carry out day-to-day activities.
• Unlawful discrimination occurs where someone is treated less favourably because of their disability.
• Discrimination also arises where an employer fails to make reasonable adjustments where a provision, criterion or practice or any physical feature of the premises places a disabled employee at a substantial disadvantage.

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Redundancy

An employee's position may become redundant if:

1. The employer has ceased or intends to cease to carry on the business (i) for which the employee was employed; or (ii) where the employee was employed; or
2.  The requirement for employees to carry out work of a particular kind has ceased or diminished or are expected to cease or diminish; or
3. he requirement for employees to carry out work of a particular kind in the place where the employee was employed has ceased or diminished or are expected to cease or diminish.

• In cases where there are more than one affected employees in the same or similar positions, the employer should pool the employees together and apply a selection criteria based on fair principles.
• In order for any dismissal by reason of redundancy to be fair, the employees affected should be given as much notice as reasonably possible that their position is at risk of redundancy; consulted about the situation and considered for any suitable alternative position before any final decision is taken.
• The acas Code of Practice should also be followed allowing the employee to state their case at a dismissal meeting. At this meeting, the employee has a right to be accompanied by a fellow employee or trade union representative. The employee should have the right to appeal any decision to dismiss.
• Employees have a right to notice and a statutory redundancy payment calculated by reference to age, length of service and weekly earnings up to a capped amount.
• If 20 or more employees are proposed to be made redundant, the employer must follow a statutory consultation process for a minimum period of time with employee representatives as well as individuals.

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Holidays

• The minimum amount of leave a full time employee is entitled to (in line with the Working Time Regulations Act) is 28 days per annum, which can include bank and public holidays.
• If you have a part-time employee, they are entitled to a pro rata amount of holiday calculated on the full-time entitlement of 28 days per annum.
• The amount of holiday employees can take every year must be specified in their contract of employment. If they leave your employment, any accrued but unused holiday should be included with their final pay and calculated at the basic rate of their salary.
• Apart from the above, there are no legal requirements governing holiday leave. All other aspects of employee holiday should be set out either in their contract of employment or in a staff handbook, and these are likely to include when your leave year starts, whether employees can carry holiday over from one leave year to the next, and what procedures employees should follow for booking their holiday.

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Maternity & Paternity Rights

• Maternity leave rights are an important part of employment law which can be the cause of much confusion depending on an individual’s circumstances.
• Maternity leave law is designed to safeguard the rights of a mother-to-be and new mother with regard to their current employment status and treatment, and to ensure that they are treated fairly and that their pregnancy and motherhood does not affect their employment conditions and prospects adversely.
• Maternity leave rights in the UK normally grant a new mother 39 weeks maternity leave on either maternity allowance or statutory maternity pay, along with a further 12 weeks unpaid leave. Provided the employee complies with maternity leave notification requirements, they may take this leave regardless of how long they have been employed by you, how many hours they work or how much they are paid. These are the basic statutory maternity leave rights, but they may be extended by specific contractual agreements between you and your employee.
• Maternity leave rights also entitle the employee to return to work after the period of maternity leave is over and their period of continuous employment is not broken by maternity leave.
• While the basics of maternity leave law may appear relatively simple, there are a number of qualifying factors that can make the situation more complex and from which disputes can arise. These factors may include the nature of the employment (whether full- or part-time) and if there is a redundancy situation.

Paternity Leave Rights

 A  male employee  will qualify for statutory paternity leave on the birth of his baby if he:

• has (or expects to have) responsibility for the baby's upbringing
• is the biological father of the baby and/or the mother's husband or partner (including same-sex partner or civil partner).

In order to be entitled to paternity leave, he must:

• have at least 26 weeks' continuous employment ending with the 15th week before the expected week of childbirth.
• be working for you as the employer from the qualifying week up to the date of birth. If his contract ends before the birth, he does not qualify for leave unless he goes on to work for an associated employer. If his contract ends after the birth, he retains his right to leave (and pay if he qualifies). 
• have notified you of his intention to take paternity leave
•  be taking the time off to support the mother and/or care for the baby.

• If the employee meets the conditions above, he can take either one or two weeks' paternity leave (where a week is a period of seven days). He cannot take individual days off and if he takes two weeks, these must be taken consecutively.
• The period of leave can begin either on the day the baby is born, or a number of days or weeks after the baby is born, or from a specific date after the first day of the week in which the baby is expected to be born.
• Fathers of children born after April 2011 will be entitled to additional paternity leave if their partner has not take all their maternity leave and returns to work, so that they will be able to take the remainder of the leave that their partner has not taken up to a maximum of 26 weeks.  This leave may be paid if it is taken during the mother’s or partners statutory maternity allowance period or statutory adoption pay period

Parental Leave Rights

Parental leave offers employees the right to take unpaid time off work to look after their child or make arrangements for their welfare, providing they meet certain eligibility criteria as follows:

• They have been employed by you for at least a year
• They are an 'employee', with a contract of employment (most agency and casual staff don't have the right to parental leave)
• They are a parent named on the child's birth certificate or they are named on the child's adoption certificate or they have legal parental responsibility for a child under 5 (18 if disabled)
• Both parents have the right to parental leave. If they are separated, the parent who no longer lives with the children only has the right to parental leave if they retain formal parental responsibility for the children. Foster parents do not have rights to parental leave.
• If the employee does not qualify for parental leave but needs time off to care for their child, they could ask you to consider the following options:
• Taking paid holiday
• Taking unpaid time off
• An application for flexible working
• Employees may take up to a total of 13 weeks' parental leave for each of their children up until their fifth birthday. If the child is adopted, they can take a total of up to 13 weeks' parental leave until the fifth anniversary of their placement with the employee or until their 18th birthday, whichever comes first. If the child is disabled (that is, getting disability living allowance) the employee has the right to take up to 18 weeks' parental leave until their 18th birthday.
• Parental leave is an individual right and it cannot be transferred between parents.

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Business Transfers

• There are a number of situations when employees will find that the identity of their employer has changed, for example when the employer sells the business or part of the business or upon the transfer of a contract. In situations such as these, employees' terms and conditions could be protected by The Transfer of Undertakings (Protection of Employment) Regulations ("TUPE") when they transfer to a new owner or contractor.
• Before any transfer takes place (long enough to ensure a proper consultation takes place), employees have a right to be given information through representatives about the fact that a relevant transfer is to take place; when it is likely to happen; the reason; the legal, economic or social implications; and whether any new measures are envisaged by the new employer in relation to the employees.
• If measures are envisaged the representatives must be consulted.

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Compromise Agreements

• A compromise agreement is a legally binding document in which the employee agrees not to pursue any claims (existing or potential) against you, the employer, in exchange for a sum of money.
• It is a legal requirement for the employee to obtain independent advice on the compromise agreement, in order to ensure that the agreement is fully understood and approved by both you and your employee.
• There are various requirements that must be fulfilled in order for a compromise agreement to be valid, and we will ensure that your compromise agreement fulfils all of these requirements. Although it will be tailored to your own individual circumstances, there are some common features to most compromise agreements which are included to protect your position.
• The idea is to conclude your employee’s employment with a compromise agreement that is offering them an appropriate sum of money, bearing in mind various factors including their length of service, salary, and the circumstances in which their employment is being terminated. Our years of experience will help to ensure that the process is as easy as possible, since we can identify potential problems before they arise.
• It is usual for the employer to contribute towards the costs of taking legal advice and it is very often the case that the contribution is sufficient to pay all the costs, so that the employee may have nothing to pay the solicitor advising them.

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