Frequently Asked Questions
Is it necessary to give my employees a written contract of employment?
Yes, employees should be issued with a written statement of terms and conditions within two months of starting their employment. If nothing is put in writing it is still a verbal contract but could be open to misinterpretation at a later date. Written contracts of employment provide certainty which will prevent any misunderstandings and subsequent disputes.
Do I need to have an Employee Handbook?
No, it is not a legal obligation to have an Employee Handbook but it is extremely important to have the company’s policies and procedures in one document which provided clarity to both the employer and employee of what is expected of them and the possible consequences.
Is it legally possible to vary employees’ contractual terms?
The short answer to this question is that it is usually legally possible to vary employees’ contractual terms only with their consent. First, employers should consider whether the proposed change is contractual or whether it is merely a change in policy. Policy changes may be implemented without the need to obtain agreement from the employees. If the change is contractual, then agreement will be needed to implement the change. Unilateral changes are unenforceable and usually are a breach of contract exposing employers to a claim against them. Advice should be sought prior to taking any action.
Can I dismiss an employee for poor performance?
Yes it can be done, however it is difficult to do unless you have the correct and proper procedure in place to monitor all employees performance, this would include setting targets and objectives and reviewing them at regular intervals; if there is concerns about an employee’s performance it must be addressed informally in the first instance, setting clear objectives and giving the employee an opportunity to improve and at the same time ensuring the appropriate guidance and training is provided to assist the employee to improve. If after an agreed time there is still no improvement, then a formal route should be followed which would result in formal warnings, if after a further period of monitoring there is still no improvement, then an employer could proceed to dismissal on the ground of poor performance ensuring that a formal procedure is followed and the right of appeal is provided.
Can I dismiss an employee who has worked for me for less than one year?
Yes you can providing there are sufficient grounds to do and they have been given the correct notice. An employee does not gain full employment rights until they have two years continuous service, however there are certain categories of dismissal which can be ‘automatically unfair’ such as pregnancy-related dismissal. Employees who worked for you for less than a year can bring a claim for unfair dismissal if they felt it was on discriminatory grounds (age, sex, maternity, race or religion etc..).
How do I make an employee redundant?
In order to avoid an unfair dismissal claim there must be a genuine redundancy situation and a fair procedure should be followed in making the redundancy. This procedure involves an initial consultation process with each employee involved or who hold a similar position to that of the one being made redundant. The purpose of the consultation is to warn of the risk of redundancy and to allow the employees an opportunity to share their opinions and objections and to also put forward any suggestions they may have.
It is essential there is fair selection criteria which can be objectively measured for each employee – the majority of unfair dismissal cases on the grounds of redundancy are found to be unfair because there was inappropriate or unfair application of the selection criteria.
Is there a statutory right to paid leave on bank holidays or public holidays?
Many employees do not realise that there is no statutory right to paid leave on bank or public holidays: it depends upon what is provided in the contract of employment. Time off for bank holidays can be counted against a worker’s annual holiday entitlement or can be provided in addition, depending upon what is agreed between the employer and the employee. Any right to time off or extra pay for working on a bank holiday depends on the terms of the contract of employment.
Many workers will be entitled to pay on bank and public holidays as a result of implied or express contractual terms.
The current minimum annual leave entitlement is 28 days and employers can count bank holidays towards the entitlement. Some employers give the 28 day entitlement in addition to bank or public holidays but they are not obliged to do this.
Who do the Working Time Regulations apply to?
The Working Time Regulations 1998 (WTR) as amended are one of the important pieces of legislation which apply not only to employees but to workers as well. This means that the rules governing working time could apply to individuals who are not strictly speaking employees, for example sub-contractors working for a building company.
Workers include individuals who personally perform work or provide personal services to another, except those who are in a client or customer relationship.
How should an employer treat short-term absence?
In order to manage sickness absences issues it is important to fully understand the extent of the problem. Employers need to distinguish between lateness, short-term absences and long-term absences. Where the absence consists of lateness or short but persistent and apparently unconnected absences then, after suitable investigation, disciplinary action may be appropriate in some cases. Employers should consider having a short and long term sickness policy, however short term absence should be managed proactively and a set procedure should be followed.
Can older employees claim unfair dismissal?
Yes, since 1 October 2006 employees over 65 have been able to claim unfair dismissal as a result of the Employment Equality (Age) Such employees may have age discrimination claims as well.
The rights of older employees have been strengthened even further as there is now no default retirement age (DRA) in the UK and the statutory retirement procedures have been abolished. Retirement of an employee simply because of their age is no longer a fair reason to dismiss them. In theory an employee who wishes to, and has no deterioration in their performance, has a right to remain in their job until their death.
In order to avoid an unfair dismissal claim from an older employee, the employer will have to justify their dismissal.
Following the abolition of the DRA employers will have to manage older employees in exactly the same way as other employees. If they are not performing as the employer would like, the employer will have to show:
- A fair reason to dismiss
- A fair process followed
- Compliance with the Acas Code of practice on disciplinary and grievance procedures and the employer’s own procedures and that the decision to dismiss is objectively justifiable.