Employing staff and navigating through employment law legislation can be complex, our experienced HR advisors have put together some of the common questions we get asked.
There are 5 potential fair reasons for dismissal and capability is one of these; long-term sickness absence may fall under this category. However, a capability procedure should be followed to ensure the dismissal is fair.
It is a guide which sets out the procedure that should be followed with regards to disciplinary and grievance cases. Failure to follow this can result in a 25% uplift to compensation payable by the employer.
Some claims require a continuous length of service of 2 years or more such as an unfair dismissal claim however, there are many other claims which do not have a 2 year limit such as discrimination, breach of contract and automatic unfair dismissal.
It is advised to wait until the end of the probation period so the new employee has a good opportunity to meet the required standards. However, if there is clear evidence to suggest that the new employee is not suitable for the role, then the probation period can be ended early and employment terminated.
It’s important to confirm any decisions in writing, to give the correct notice of termination and to follow any policies and procedures.
Some contracts of employment include a flexibility clause. This clause normally allows the employer to make reasonable changes to the terms and conditions of employment. In the absence of such clause, consent from the employee should be obtained. In both cases, it is important to carry out a genuine consultation exercise.
Yes they can, however, it is advised that handbooks are drafted in way to ensure that they are not contractual because this provides the employer with flexibility when they are wanting to review and update such documents.
Employees should receive their normal pay when they are on holiday (annual leave). This means that overtime, bonus and commission should be included. The only exception is when overtime is occasional. ‘Occasional’ isn’t clearly defined, but if an employee has worked a pattern of overtime over a period of time, this overtime payment should be included in the holiday pay calculation.
Both workers and employees must be provided with such on or before their first day of employment.
Flexible working can be any of the following; homeworking; part-time or reduced hours; job shares; flexi-time; compressed or annualised hours; different start and finish times.
Employees have a right to make a flexible working request if they have at least 26 weeks’ continuous service with their employer. Employers then have a duty to consider that flexible working request in a ‘reasonable manner’.
All employees who have at least 26 weeks of continuous service have the right to request flexible working. Flexible working includes changes to working hours, the location of work or job-sharing.
An employee has to agree to opt-out of the average 48-hour working week; this cannot be forced upon them. The employee should not be subject to any detriment for refusing.
If an employee wants to cancel an opt-out agreement, they can do so by giving a period of notice.
It’s most commonly either a line manager or someone within HR however, the most important thing is that they have received training in how to conduct an effective investigation.
Yes there are statutory record-keeping requirements. For example, right to work documents, wages and deductions records and health and safety induction records.
In general, questions to avoid asking interviewees include questions about their children/childcare, family commitments, age, health or disability.
When an employer provides a reference they are processing personal data and therefore should ensure that there is a legal basis for this processing. With regards to a reference, consent is most likely to be the condition that applies. This means that consent should be obtained from the individual before providing a reference.
Extra precautions should be taken if the reference includes special categories of data e.g. information about the individual’s sickness absence and health.
A redundancy is a dismissal due to one of the following reasons:
- The company has closed down or is going to close down;
- The work requirements have changed, or are going to change;
- The workplace location has changed, or is going to change.
In general, the answer is no. Employees retain their previous terms and conditions and these are protected.
Employers must have a good reason for processing and maintaining health data. They need to ensure that they have a ‘legitimate interest’ that would satisfy GDPR requirements if they are going to ask this question; health and safety could be such a good reason. With regards to prospective employees and the recruitment process, in general it is unlawful to ask people about their health until a formal job offer has been made.
It is understandable why many companies will be keen to encourage their employees to get the vaccine if it is offered. However, people may have a number of reasons why they do not want the vaccine – from religion and philosophical belief, to wanting to wait until any side effects are widely understood. The Government have made it clear that the vaccine is optional and it is not a legal requirement, therefore an employer may find it difficult to insist that the workforce is vaccinated.
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