Chapter 19
Your rights and duties as an employer
The idea of employment law can conjure up images of the Gorgon. You, as an employer, turned to stone when faced with the legal pitfalls of employment. By and large, you can employ whoever you want. You can set up your own criteria about who you want to employ, but there should be good reasons for it – not solely because of sex, race, disability, marital status and so on. You can normally dismiss unsatisfactory employees. But the law sets out that it should be done fairly. If you do not do so fairly, then you may have to be prepared to pay compensation. Moreover, there are rules about how you treat employees while they work for you. If disgruntled employees leave, they may claim your actions amounted to constructive dismissal, which could again result in you facing a bill for compensation. So it makes sense to have a good working knowledge of employment law and to foster a good working environment in your business.
There are a number of firms set up which advise you on what to do with employees from a legal point of view. These are much cheaper than using a solicitor and can also save you a huge amount of time, as well as helping you to avoid getting into a costly and lengthy dispute in a tribunal.
During 2020 and 2021, many temporary changes were introduced with the aim of helping businesses, employees and workers navigate difficult economic conditions created by lockdowns and the covid pandemic. At the time of writing, all these temporary changes were due to end in the next few months, so they are not covered in this edition. This chapter was last updated in May 2021. There may have been changes that have taken place since that date. Updates are posted on go.pearson.com/uk/he/resources that should keep you abreast of important new information.
Different types of employment status
There are three different types of status recognised: employee, worker or self-employed. The question of whether you are an employee or self-employed needs to be resolved – see Chapters 7 and 28.
The distinction between employees and workers hinges on several factors. People are classed as employees if they have an employment contract, are provided with regular work by you, are employed to carry out that work personally and obliged to do so. On the other hand, people can be classed as workers if the work is more casual. A worker would usually have a contract to carry out services, but without an obligation to receive or carry out that work unless agreed to, such as a zero-hours contract. A worker would still be expected to carry out any work personally.
This chapter focuses on the laws affecting you and your employees. The government commissioned a report, the Taylor Report, to look at the right of workers and as a result new rights have been extended to workers. Additionally, drivers for Uber, classed by the company as self-employed, took the platform to an employment tribunal to establish that they were workers and therefore there were certain employment rights they were entitled to. It is more than likely that there will be increasing protection offered to those people whose employment status is that of a worker.
What is in this chapter?
- Taking on an employee (p. 241).
- Pay and working hours (p. 245).
- A safe and healthy working environment (p. 254).
- Discrimination: what to watch out for (p. 256).
- Maternity and parental leave (p. 262).
- Flexible working (p. 267).
- Coping with an economic downturn (p. 267).
- Saying goodbye to an employee (p. 268).
- Using agency workers (p. 272).
If you need more advice and guidance, contact the Advisory, Conciliation and Arbitration Service (ACAS), or for Northern Ireland the Labour Relations Agency, or see the UK government’s website.1 If your worry concerns discrimination, contact the Equality and Human Rights Commission (EHRC). The EHRC promotes and upholds equality and human rights ideals and laws for England, Scotland and Wales.
Employment law is very complex. It is also changed frequently. However, in order to help businesses to keep track, the government introduces most changes to laws affecting businesses (including employment law) from either of two common commencement dates each year: 6 April (coinciding with the start of the tax year) or 1 October. You can get business support and advice on the phone or online through the Business Support Helpline or Business Gateway web site. If you join a business organisation, you may have access to an HR helpline which can advise you on employment law issues and problems. ACAS runs a free phone or online helpline that can advise on employment issues. This chapter can do no more than give general guidelines, and the coverage cannot be considered comprehensive. The content was updated in August 2021.
Bird’s-eye view of your rights and duties
In general terms, apart from what is in the employment contract, what can you expect from your employees, and what can they expect from you?
Your rights
1Employees should be honest and obedient and not act against your interests.
2They should not disclose confidential information about your business.
3They should take care of your property.
4Any patents, discoveries or inventions made during working hours generally belong to you.
5Your employees should be competent, and work carefully and industriously.
Your duties
1You should behave reasonably in employment matters.
2You should practise good industrial relations and provide, for example, a written statement of terms of employment, including disciplinary procedures and grievance procedures.
3You should pay your employees when you agreed to do so.
4You should take reasonable care to ensure the safety and health of your employees.
As well as these general rights and duties, your employees acquire certain rights by law – see Legal life-cycle of an employee (below), which applies to full- and part-time permanent workers.
What is in the rest of this chapter?
The rest of this chapter fills out the details. However, it cannot cover every single employment possibility and should be regarded as a guideline only.
Legal life-cycle of an employee
Taking on an employee
The most important part of employing someone is to select the right person for the right job in the first place. The techniques of job description, advertising the job, selecting for interview and interviewing are covered in Chapter 18, ‘Getting the right staff’. However, there are certain legal points to look out for to ensure that you and your employee get off to a happy start.
What you must do
1Do not discriminate because of sex, marital status, disability or race in ads, interview and job descriptions. You must also avoid discrimination on the grounds of sexual orientation, religious or similar beliefs and age.
2Check that the person is legally entitled to work in the UK.
3Tell your tax office when you take on an employee.
4Give your employee a written statement of their terms of employment as they start.
Avoid discrimination
You should be careful that sex, racial or other sorts of discrimination do not creep into ads or interviews. Avoid using job titles that imply one sex or the other – ‘foreman’, for example. If you use this sort of job title, include in the ad a note that you welcome applications from both sexes. Avoid using ‘he’ or ‘she’ to describe a job applicant in an ad as it suggests you want applications from men only, if you use ‘he’, or women only, if you use ‘she’. And be careful that illustrations don’t give the impression that the job is a man’s or woman’s. In an interview avoid asking women about their husband, their marriage or family responsibilities or whether or not they intend to have a family.
You must also take care not to discriminate, either directly or indirectly, in ads and interviews on the grounds of age unless there is a justifiable reason for recruiting someone within a particular age range. This means, for example, making sure you place ads in publications that are likely to be read by a spread of people of different ages. Note that advertising for a younger person simply because you think they would be cheaper than an older worker will not count as a justifiable reason. If you advertise for graduates, you need to make clear that graduates of any age are welcome, not just people in their 20s. Advertising for people with a minimum number of years’ experience would exclude younger applicants, so you need to be certain you have objective grounds to justify the experience requirement. In interviews, avoid age-related questions, such as how the person would feel managing older or younger workers.
Check eligibility to work
Employers by law play a key role in preventing illegal working in the UK. You can be fined if you employ someone aged 16 or over who is subject to immigration control and does not have permission to work or do the type of work you offer and you didn’t carry out the correct checks. The maximum fine is £20,000. You can get the fine put aside if you have a ‘statutory excuse’, which you acquire by making checks of the worker’s documents before you take them on.
You must not discriminate on the grounds of race and, since ethnicity and country of origin are not reliable guides to immigration status, it makes sense to build an automatic check of documents into your recruitment system and apply this to all prospective employees. You could ask to see the documents either when shortlisted candidates come for interview or before making a firm offer to the successful candidate.
You must ask the worker to provide original versions of either one or two of the specified documents that prove their right to be in the UK and work here. The rules have changed at the start of 2021 as the UK left the European Union. The government has guidelines on www.gov.uk/check-job-applicant-right-to-work.
If the worker’s document(s) show they have indefinite leave to be in the UK and work here, you just need to make the check once. If the worker has only limited permission to be in the UK, you must repeat the check every 12 months.
You must check that the details on the documents (such as birth date and any photograph) match the appearance of the worker and tally with information given on the job application. You must take all reasonable steps to ensure that the document(s) are valid and that the worker is the rightful owner. Photocopy or scan the documents and store the copies securely. To comply with the data protection legislation (p. 172) do not keep the copies longer than necessary, which is generally taken to mean three years after the employee has left.
For more information, contact the Business Support Helpline or the equivalent organisation, or see the gov.uk web site.2
Other starter rules
The job should be described accurately in the ad and in the letter offering the job. You must not describe the job as an ‘apprenticeship’, unless it is part of the statutory apprenticeship scheme. These two can form part of the contract of employment. When you do take on an employee, you should tell your tax office. Remember to get your new employee’s P45; if your employee does not have one, fill in a P46. You must have given them a written statement of the conditions and terms of the job as they start (see below).
It would be wise to take note of the actual day on which your employee starts. The date can determine whether you may be able to dismiss your employee fairly or not, if things do not work out. Remember that dismissal because of sex, marital status, disability, race, age or political beliefs and affiliations requires no qualifying period and will be unfair from day one.
What is the contract of employment?
The words ‘contract of employment’ conjure up thoughts of a written document. But the terms of your employee’s contract of employment can be made up of anything you write or indeed say. It can include what you say in the ad, in the interview, in the offer letter, when your employee starts work and any subsequent chat you have about the terms and conditions of the job.
The basic contract is offer of employment, acceptance of employment and agreed amount of payment; these can be oral or written. Anything else makes up the terms. It is far better to have the terms in writing, which are then signed by both the employee and the employer.
What you have to put in the written statement
The statement should include your name and your employee’s name. You have to say when your employee’s present job began and when your employee’s period of continuous employment began.
You also have to give information on various terms and conditions. The terms and conditions are:
- the scale or rate of pay, including how it is worked out;
- at what intervals payments will be made (weekly, monthly, etc.);
- hours of work, including normal working hours;
- holidays, including public holidays, and holiday pay, including how it is worked out;
- place of work;
- your employee’s job title or a brief outline of the work.
As well as the statement, you must give further information on:
- sickness or injury and sick pay;
- pensions and pension scheme;
- length of notice to be given by you and your employee;
- if the contract is ‘temporary’, an indication of the expected duration;
- details of any collective agreement affecting the job.
There is a link on the gov.uk website3 (under the ‘Contracts of employment and working hours’ heading) to help you create a written statement of employment, and an example written statement on the Advisory, Conciliation and Arbitration Service (ACAS) site www.acas.org.uk (search ‘Written Statement’).
Pay and working hours
There are quite a lot of rules about how you can pay, how much you have to pay and what you have to give with pay.
What you must do
1Act as collector of income tax and National Insurance contributions for the government using the PAYE system (p. 251). You may also have to deduct student loan repayments to pass to HMRC. On the rare occasion it happens, you may also have to act to enforce a court order, by deducting sums from an employee’s earnings under what is called an attachment of earnings. This may occur, for example, for paying maintenance under a Child Maintenance Service ruling or for paying a fine.
2In most cases, do not deduct anything from your employees’ pay unless it has been agreed in writing that you can do so, for example in the contract of employment.
3Pay statutory sick pay, statutory maternity pay, statutory paternity pay, statutory adoption pay and parental bereavement pay, if due.
4Give equal pay to employees carrying out broadly similar work or work of equal value.
5Pay the national living wage, at least, to employees aged 23 or more.
6Make employer contributions into an auto-enrolment pension scheme.
7If you are a large or medium-sized business and you use contract staff, even if they operate through their own company, you will have to decide whether they are in reality an employee of yours during their period with you (known as IR 35 Rules) and treat them accordingly by paying what you owe them after deducting tax and National Insurance contributions and by paying employer contributions. In general, you count as a large or medium-sized business if you are required to undertake an audit, see Chapter 7.
How much do you have to pay?
In many cases, deciding how much and how often you pay your employee will be negotiated between you and your employee. Whatever is decided will be part of your employee’s contract of employment. You can also negotiate the question of bonuses, commission, overtime, holiday pay and sick pay.
If your employee has decided to contribute to a pension under the scheme being rolled out across the country, you need to make the appropriate employer pension contributions.
There is a statutory national minimum wage. You must pay employees in 2021–22 at least per hour:
| Age of employee | |
| 23 and over | £8.91 |
| 21 to 22 | £8.36 |
| 18 to 20 | £6.56 |
| 16 or 17 | £4.62 |
| Apprentice rate | £4.30 |
What you can, or have to, deduct from pay
You cannot deduct anything from your employee’s pay unless it has been laid down by law or unless it has the written agreement of your employee.
However, you can make some deductions if your employee has agreed in writing. For example, you can deduct a sum of money and hand it over to someone else, such as dues to a union or donations to a charity under a payroll giving scheme or contributions to a pension plan.
What you have to give your employee with the pay
You must give your employee (or worker) a detailed pay statement when or before they are paid. The statement must be in writing but this does not necessarily mean it has to be paper-based. You could opt for an electronic format instead. For example, some larger employers in particular issue online pay slips that employees can download through a secure section of the company’s web site. What must be written in the statement is laid down by law:
- The amount of your employee’s salary before any deductions are made.
- If you deduct any sums of money, which can vary from pay day to pay day, you must say what the amount of each deduction is and what it is for.
- If you deduct any sums of money that remain the same on each pay day, you can do one of two things. Either you can say how much each deduction is and what it is for on each pay slip. Or, on the pay slip, you can say what the total of these fixed deductions is and separately from the pay slip give a statement of what the sums of money are used for.
- This separate written statement must be handed out at 12-monthly intervals. It must say how much, when and why any deductions are made, and you must hand it to your employee before or when they are made. If these fixed deductions are changed, you have to give your employee written notice or an amended written statement.
- The amount of your employee’s pay after all deductions.
- You must include the total number of hours worked where the pay varies according to hours worked, for example, as with a variable-hours or zero-hours contract.
If your employee is paid by more than one method, your pay slip should show how much is paid in each way, half in cash and half by bank transfer, for example. And remember that employees are entitled to see pay records to confirm that you are complying with the national minimum wage and national living wage. So you must keep records for these purposes.
Do you have to give holiday pay?
By law, all employees are entitled to a minimum amount of paid holiday. The entitlement is 5.6 weeks (28 days for an employee working five days a week). Employees have this right from the first day of work. Leave accrues at a rate of one-twelfth of the annual entitlement for every month worked rounded to the nearest half-day. This statutory holiday entitlement is not in addition to bank holidays – and can include them. You therefore need to make the position clear in the written statement of terms, which can be more generous than the statutory minimum if you like. The holiday entitlement is calculated pro rata for part-time employees. You cannot roll up holiday pay and give it as extra wages instead of allowing paid time off. You need to look back over a 52-week period to calculate what you should pay as holiday pay.
You do not have to agree to an employee’s request to take holiday but must give adequate notice of any refusal. The required notice is at least as long as the time to be taken off, so a week for a one-week holiday, a day for one day off and so on. You can decide when employees can and cannot take holiday but you must give notice at least twice as long as the period to be taken off or the period during which holiday is banned. You can put rules about taking holiday in the contract of employment, provided the effect is not to make it impossible for employees to take their legal entitlement.
Do you have to give sick pay?
Yes and no. If you have agreed to give your employee pay while ill, you must do so as it is part of the employment contract. How much pay and for how long should be set out by you in the written statement of employment.
If you have not agreed to pay your employee while ill, then your only obligation is to give statutory sick pay (SSP). Employers are required by law to pay SSP to their employees during sickness if the qualifying conditions are met. The weekly rate is £96.35 for employees with average weekly earnings of £120 or more.
Employees will qualify for SSP if they have an employment contract, have done some work under the contract and are sick for at least four days in a row. All days count towards sickness, including weekends and public holidays, but you only pay SSP after the qualifying days. These are normally the days your employee does not work. No SSP is payable for the first three days of sickness.
For absences of four to seven days it is usual to ask your employee to sign a self-certificate form (your own or form SC2, available on the HMRC web site). For absences of more than seven days, it is usual to ask for a statement of fitness for work (‘fit notes’). You cannot insist on one for absences of less than seven days. The doctor issuing the statement will either state that your employee is not fit for work or that he or she may be fit as long as you give appropriate support – the doctor will advise what support would be appropriate (for example, lighter duties). You do not have to give the support, in which case your employee will be deemed not fit and you will be obliged to pay SSP as usual.
Your employee is not entitled to SSP if his or her average weekly earnings before sickness are less than the lower earnings limit for National Insurance contributions, £120 (2021–22).
If you have no work for an employee, do you have to pay?
Generally speaking, pay is negotiated between you and your employee, without any government intervention. Whether employees are paid when there is no work or they are unable to work will be decided by negotiation. However, in most cases you will pay your employee’s salary or wages regardless of how much work you have and regardless of whether something happens, such as a power cut, that means your employee cannot do the work required.
But if your employee is paid by the hour, on piece rate or a zero-hours contract, you do not have to pay:
- unless you have agreed to do so in the contract of employment; or
- unless you have to make what is known as a guarantee payment.
You may have to make this payment, once your employee has worked for you continuously for a month, for any complete days when he or she is not provided with work throughout a day during which there would normally be work. Guarantee payments can apply to all workers, not just hourly and piece-rate workers. You have to pay £30 a day for workless days, unless their normal daily rate is less than that in a day.
This payment may be made up to five times in a three-month period. The limit on the payment is reviewed, but not necessarily changed, each year.
Note that you can make a provision within the written statement of terms for lay off or short-time working.
A zero-hours contract can be a permanent or fixed-term contract, but with no guarantee of any work. They would be suitable if you experience temporary peaks of workload and want to have staff on call who can come in at short notice to work a shift. You provide no guarantee of any work, but equally your employee does not have to take up your offer when you do call, so this might suit someone who has other work and is looking to top up their earnings on a casual basis. When your worker does work, you must pay them at least the national minimum wage. They have the same rights as other employees regarding working hours, holiday pay, sick pay and so on. However, it can be complicated working out how to calculate these rights and express them clearly in a contract, so you may want to get advice from a solicitor, the Advisory, Conciliation and Arbitration Service (ACAS) helpline or, if you belong to a business organisation, its HR helpline. Note that you cannot have an exclusivity clause in a zero-hours contract. It is planned that after 26 weeks of continuous service, a worker on a zero-hours contract has the right to request a more predictable and stable contract.
Equal pay
You cannot pay one employee more than another because one is a man and the other a woman. For example, simply to say that a man is stronger is no defence to justify higher wages. If your employees are doing the same or broadly similar work or work of equal value, you should pay the same rate to each and give each the same terms of employment. ‘Broadly similar’ means that the differences between the two jobs are not of practical importance.
You can pay one employee more than another if there is a genuine non-sex-based reason for it. An example would be if one of your employees had been with you for many years and you had a scheme to pay employees a higher rate after a number of years, though beware of age discrimination.
In some circumstances you will still be able to pay workers of different ages different levels of pay. These include differentials that depend on length of service of five years or less, and differences that recognise loyalty and experience or whose purpose is to motivate staff.
How to operate the PAYE system
You have to act as a tax collector for the government. The government department that deals with tax is HM Revenue & Customs (HMRC). On each pay day you have to deduct the correct amount of tax and National Insurance contributions from your employee’s pay and you have to send it (in ‘real-time’) to the tax collector. Here are the steps to take when you employ someone:
1Tell HMRC. You will be told which is your PAYE tax office as an employer, which could be different from the office that handles your individual tax affairs. When a new employee starts they should hand you a form P45 from their last job or, if they do not have this, they should complete a P46. You must send the P45 or P46 to HMRC and you are required to do this using the online PAYE service which you can access from the HMRC web site.
2Your payroll software will you how much tax and National Insurance contributions to deduct from your employee’s pay.
3Within 14 days of the end of each month, send the tax and NI contributions to the accounts office. The associated data have to be filed online using the PAYE service on the HMRC web site.
4At the end of each tax year (5 April), you must send HMRC summarised details of the pay and benefits of each employee. You must send in these details via the Internet and by the specified date – if you don’t, you’ll be fined. You must give a copy of the details to your employee as form P60 no later than 31 May.
You will not have to do this if your employee earns less than a certain amount – in the 2021–22 tax year, the PAYE threshold is £240 a week or £1,042 a month. But, even if your employee earns less, you still have to tell your tax office.
When an employee leaves, you must complete a form P45 and give this to the employee to pass on to their next employer. You must also send the P45 to HMRC using the online PAYE system.
For guidance on your tax and National Insurance duties as an employer, contact the relevant HMRC employers’ helpline or see the HMRC web site.
You need payroll software that supports ‘real-time information’. You can do this in three ways:
- by using commercial payroll software;
- by using a payroll service provider, such as an accountant or a payroll bureau, who will do it for you;
- businesses that employ nine people or fewer can use one of the free payroll software packages or HMRC’s free Basic PAYE Tool. Search the HMRC web site.
If you are planning to send your returns yourself, you need to register for PAYE Online to get your PAYE login details. Search ‘Getting started for PAYE’ on the HMRC web site www.gov.uk/paye-online.
Fringe benefits as pay
Fringe benefits, such as health insurance, can be worth more to an employee than a salary rise. How much of your employee’s pay package is made up of salary and how much of fringe benefits is generally a matter of negotiation.
Your employee may have to pay income tax but usually no NI contributions on the taxable value of the benefit. However, you have to pay employer’s NI contributions (called Class 1A contributions) on most of the benefits you give your employee. There are some exceptions, such as money you pay into a pension scheme on behalf of the employee.
You have to send in a form P11D each year to HMRC by the date on the notice requesting information, which gives information about fringe benefits and expenses.
Pension benefits
If your business has employees (including yourself if you are director of your own company), you must offer your employees membership of a workplace pension scheme.
The employee can choose to opt out of the scheme if they want to. You must pay employer contributions, but only for those employees who choose to stay in the scheme. You cannot do or say anything to encourage the employee to opt-out.
For information and help in setting up a workplace scheme for automatic enrolment, contact an independent financial adviser.
An ‘eligible’ worker is defined as aged between 22 and state pension age and earning at least a minimum amount (currently £10,000 a year).
It will be up to you what workplace pension scheme you choose to offer, but for many employers, the National Employment Savings Trust (NEST), will be a suitable option. The employee’s NEST account stays with them when they change job.
For more information visit the Pensions Advisory Service web site (www.pensionsadvisoryservice.org.uk) or the Pensions Regulator site (www.thepensionsregulator.gov.uk).
Working time regulations
Although the working time regulations were originally introduced during the UK’s membership of the European Union (EU), the rules remain unchanged after leaving the EU. The following rules apply:
- If working more than six hours a day, employees are entitled to a minimum 20-minute break away from their work station if possible.
- For most employees, working hours must be limited to an average of no more than 48 hours a week over a reference period. The normal reference period would be a period of 17 weeks, although it can be extended in certain circumstances to 52 weeks. An employee can agree to work longer than this, but it must be in writing and the employee must be able to give notice to withdraw agreement (on a maximum of three months’ notice) – this exemption from the 48-hour limit is called the ‘opt-out’.
- Employees are entitled to one rest day in every seven or two days in fourteen.
- A working day should be no longer than 13 hours, although it depends on how it is dealt with and what break there is between that shift and the next. There must be an uninterrupted break of 11 consecutive hours in each 24-hour period (although this can straddle two days).
There are also regulations concerning night workers.
A safe and healthy working environment
You have to provide a reasonable standard of health and safety not only for your employees but also for visiting workers, other visitors and members of the general public who may be affected by what you do. This applies to the safety of the premises as well as to any risks arising from the work itself.
Note that an inspector has the right to enter your workplace to examine it and enforce legal requirements.
Employees and workers have the right not to be subjected to detrimental treatment for leaving work if they consider themselves to be in ‘serious and imminent danger’, which may have been an issue during the pandemic.
Although many measures introduced to help prevent the spread of Covid-19 were temporary, there will no doubt be some long-lasting consequences for health and safety requirements. This is not clear at the time of writing (August 2021). One of the issues you may have to address is whether you require employees to be vaccinated or not. Indeed, it is not clear that the choice will be yours to make, so please keep a lookout for rulings in this area. There may also be continued rules about social distancing in the workplace for you to observe.
What you must do
Once you have employees there are additional rules. Broadly:
1Tell whichever organisation is responsible for health and safety at work for your business what your business name and address are. If you have an office, shop, warehouse, restaurant or funeral parlour, for example, your local authority will be responsible. For other businesses, it will be the Health and Safety Executive (HSE) area office.
2Get employer’s liability insurance and display the certificate at each place of work.
3Bring your written statement on your policy for health and safety at work (if you have five or more employees) to your employees’ notice or create one and make any breach the subject of the disciplinary procedure.
4Display the health and safety law poster or hand out the equivalent leaflet.
5Make an assessment of the risks of your workplace – and keep a written record if you have five or more employees.
6Train and appoint a first-aid officer or someone who is responsible for your policy.
Insurance
You must have employer’s liability insurance to cover you for any physical injury or disease your employees suffer as a result of their work (p. 280). The latest certificate must be displayed. Electronic rather than paper display is allowed, provided your employees know how and where to find the certificate and have reasonable access to it.
Safe working environment
You must see that the place where your employees work, and the entrance and exit to it, are reasonably safe. Making a safe place of work includes things like fire exits and extinguishers, electrical fittings, storing material, machinery, hygiene, first aid; the list is very wide and covers all aspects of work.
You also have to take steps to provide a system of working for your employees that will give adequate safety. This includes making sure your employees are given adequate information and are trained well enough to carry out the work safely, for example, where the work involves use of machinery or fire risks. And you also need to check that the system of working is actually being carried out.
You must provide equipment, materials and clothing that enable your employees to work in reasonable safety. You could be held responsible if there is a defect in the things you give to your employees that causes an accident.
If there is a risk of injury from criminals or others, you must take steps to protect your employees.
Competent workers
If you know one of your employees is incompetent, and if one of your other employees is injured as a result of that incompetence, you could be held liable. And even if you do not believe your employee to be incompetent, but your employee behaves negligently while carrying out your work, and another employee or a member of the general public is injured, you can be held liable.
If one of your employees breaks a safety rule that you have publicised, you can fairly sack that employee. However, you must have made clear beforehand that breaking the rules would result in sacking, so include this in your disciplinary code. The reverse side of the coin is that if you do not take reasonable steps for the safety of your employees, an employee could resign and claim constructive dismissal (p. 271).
Records
If you have five or more employees, you must have a written statement on your policy for health and safety at work and how that policy is to be carried out. This statement should be displayed so that employees can see it.
Regardless of the number of employees, you must also either display the health and safety law poster at work or hand out the appropriate leaflet. You can get these from your local HSE office.
If you have ten or more employees, you must keep a record of work accidents. If you have a factory, you have to keep a record like this regardless of the number of employees. And for all businesses certain accidents must be notified to the authority that regulates your business for health and safety.
You must make an assessment of the risks relating to your work premises and identify any safety measures you need to take. If you have five or more employees, you need to keep a written record of this.
Discrimination: what to watch out for
In general, you cannot discriminate on grounds of sex, disability or race, marital status, union membership, sexual orientation, religious or similar beliefs or age. A proposal to introduce discrimination on grounds of caste has been dropped.
The government body responsible for all aspects of discrimination is the Equality and Human Rights Commission (EHRC). The EHRC publishes a wide range of guidance on the requirements of anti-discrimination legislation and what you need to do to comply.
What you must do
1Do not discriminate on grounds of sex, race, marriage, disability, sexual orientation, religious or similar belief or age.
2Do not refuse to allow your employees to join a trade union or dismiss them for trade union activity.
Sex and marriage
Discrimination means less favourable treatment of a man or woman on the grounds of sex or because they are married. It covers pay and conditions of the job, as well as opportunities for promotion, for example. You cannot discriminate:
- in advertising or interviews for the job;
- in the terms in which the job is offered;
- in deciding who is offered the job;
- in opportunities for promotion, transfer or training;
- in benefits to employees;
- in dismissals.
You need to be particularly careful that you do not introduce requirements for a job or promotion that are likely to be met by one sex more than the other. For example, if you insist that the person for the job needs to be six feet tall, you will be discriminating against women. The same could apply if you insist on some technical qualification more likely to be held by men than women. But you can insist on height, technical or other qualifications if you can show that these are genuinely necessary for the job.
Discrimination based on sexual orientation is also outlawed. This covers orientation towards people of the same sex, opposite sex or both but does not extend to sexual practices or preferences. The discrimination may relate to someone’s actual orientation or their perceived orientation – so harassment of a worker because he or she was thought to be homosexual would still be illegal, even if the person was not in fact homosexual.
Note the government recently introduced new guidance on sexual harrassment in the workplace – download from EHRC (www.equalityhumanrights.com).
Disability
Disabled employees have the right not to be discriminated against either in the recruitment procedures you use or during the course of their employment (for example, they must be treated equally when it comes to opportunities, training, promotion and so on). As an employer, you are under a duty to take reasonable steps to remove physical barriers and to adjust your working practices so that any disabled employees can exercise these rights.
There is no exemption from the requirements, even if you are a small employer. ‘Employee’ includes, apprentices, contract workers working for you and workers you contract out to others.
Note that in some circumstances it may be possible for obesity to be regarded as a disability.
Race
Racial discrimination means treating one person less favourably than another on racial grounds, which includes colour, race, nationality or ethnic or national origins. As with sex discrimination, racial discrimination also applies if you make a requirement for a job that one racial group would find more difficult to meet than another group (unless this is a lawful requirement for the job). This is known as indirect discrimination and is unlawful. An example of this would be to insist on certain clothing being worn or to ask for a high standard of English when it is not necessary to do the job. And you cannot discriminate against a black employee because of how customers might react (for example, someone working in a pub).
You cannot discriminate:
- in advertising or interviews for the job;
- in the terms in which the job is offered;
- in deciding who is offered the job;
- in opportunities for promotion, transfer or training;
- in benefits to employees;
- in dismissals.
If one of your employees takes you to a tribunal claiming racial discrimination, it is unlawful for you to victimise the employee. It is also unlawful to instruct or put pressure on others to discriminate on racial grounds.
Religious or similar beliefs
It is illegal to discriminate on the grounds of someone’s religion or similar beliefs. What counts as discrimination is still something of a grey area. In the first case to be decided under this law, a bus cleaner was awarded £10,000 compensation after being sacked for taking extended leave to make a pilgrimage to Mecca. Other areas that could possibly give rise to discrimination claims might include dress code and canteen menus.
Beliefs similar to religious beliefs have not been defined in the regulations, and it will ultimately be for tribunals to decide whether particular beliefs come within the scope of these rules. A tribunal might consider, say, whether the beliefs involve collective worship, way of life or view of the world.
As with sex and race discrimination, these rules apply to recruitment, promotion, transfer, training, benefits and dismissals, and cover both direct and indirect forms of discrimination.
Age
Anti-age discrimination regulations ban discrimination, harassment and victimisation on the grounds of age when recruiting, training and employing people. The regulations apply to all workplaces and affect the way you treat all employees, not just older workers.
A job applicant or employee who feels they have been the target of age discrimination can take their case to an employment tribunal which can award compensation of an unlimited amount. Along with the person doing the discriminating, harassment or victimisation, you as employer can also be found liable for the actions of your employees. Therefore, it makes sense to have an equality policy at work which includes age, and to make sure that your workforce is aware of and trained in the practice of the policy.
Earlier in this chapter we discussed how these regulations can affect your approach to recruitment and interviewing (p. 241). Other areas affected by the legislation include providing training, pay and benefits (p. 246), redundancy (p. 270) and retirement (see below).
There may be some circumstances in which you are allowed lawfully to discriminate on the grounds of age. These are:
- Where you can objectively justify the discrimination: this means having a legitimate aim for discriminating, good grounds for thinking that the discrimination will achieve the aim and no better alternative.
- Length of service: you are allowed to offer additional rights or benefits to employees who have completed a minimum period of service of five years or fewer. For longer periods, extra rights and benefits are permissible provided that they aim to reward experience or loyalty or keep staff motivated, and you can prove that the discrimination is effective. Proof might take the form of, say, monitoring staff performance or the results of staff surveys.
- Minimum wage: the national minimum wage (p. 246) sets different pay rates according to age but is exempted from the regulations. Similarly, you are allowed to pay more than the national minimums to employees of different ages provided you follow the same pattern – in other words with lower amounts for younger workers and using the same age bands (16 and 17, 18 to 20, 21 and 22, and 23 and over).
- Statutory authority: this enables you to comply with the law where, for example, it sets a minimum age for holding a licence.
- Redundancy (p. 270).
- Genuine occupational requirement: this might apply where, for example, a theatre needs a young actor to play a particular role.
In most cases, you cannot set a compulsory retirement age for your staff. You could still, as explained above, set a general retirement age or retire a particular employee, if you could objectively justify such discrimination. However, be aware that it is difficult to meet the objective justification rule and you may have to pay compensation if an employee challenged your stance and you could not provide adequate proof to back up your position. In general, you need to accept that it will in future be up to your employees to decide when they are ready to retire.
If you provide health-related insurance for your employees, this is exempt from the no-default-age rules. This means it is still possible to stop providing cover after employees reach age 66 (or some later age). Pension schemes are also exempt and so can still offer a full pension from a specified ‘normal’ pension age (which, at present, commonly is 66).
Trade unions
A tribunal will find the dismissal unfair if you sack an employee for:
- belonging to an independent trade union (that is, a union that is not controlled by an employer) or for not being a member of a trade union;
- taking part in trade union activities (for example, meetings) at the appropriate time, which is normally outside working hours or inside working hours with the agreement of the management. Industrial action does not count as a union activity.
Employees can also complain to an employment tribunal if you penalise them, but do not dismiss, or if you make them redundant for any of the above actions.
It is illegal to compile, supply, sell or use a ‘blacklist’ of people involved in union activities.
Criminal offences
In some cases, people who have been convicted of an offence do not have to tell you about it. If you ask, they can lie about it quite legally. The people who can do this are usually those who have had sentences of 30 months or less. They can keep quiet about their convictions after a specified time, which varies, but it is not more than ten years and not less than six months, and it also depends on the type of conviction.
If you employ someone who is entitled to keep quiet about their convictions and you subsequently discover their past, you cannot fairly dismiss the employee.
However, if your employee is required to drive a vehicle during work, you would need to insist on knowing about any driving conviction or disqualification. Your insurance cover would be affected by this.
There are also exceptions if your business involves working regularly with children, young people, the elderly, people with disabilities, administration of the law and certain other sensitive areas. In these situations, you are required to register with the Disclosure and Barring Service (DBS), which used to be the Criminal Records Bureau (England and Wales), Disclosure Scotland or Access Northern Ireland. This enables you to ask people applying for jobs with you to apply for a DBS check (or its equivalent in Scotland or Northern Ireland), which is then sent to you and the applicant.
Health and disablement
You can refuse to employ someone if you are unhappy about their state of health. If one of your employees has been absent from work due to sickness, you may be entitled to dismiss on these grounds, providing a proper procedure is involved and subject to the length of time the employee has been absent. This involves consulting with the employee concerned, obtaining up-to-date medical evidence and considering any suitable alternatives for the employee before dismissal.
It is illegal to treat someone less favourably than other employees because they are disabled – for example, by offering them lesser benefits or fewer opportunities for promotion or training.
Maternity and parental leave
Pregnant employees, married or unmarried, have several rights, such as the right not to be dismissed or treated unfairly, the right to maternity leave and the right to return to work – but there are many conditions and exceptions, which can only be glossed over in this section.
In addition, working parents have a range of rights, including paid leave for new fathers and parents who are adopting a child, plus the right of parents with young or disabled children to request flexible working.
Regardless of how long the woman has worked for you, she is entitled to up to 52 weeks’ maternity leave and, if she has been with you for at least 26 weeks, may claim statutory maternity pay for 39 weeks of her leave. Similarly, maternity allowance is payable for 39 weeks. Non-pay contractual rights continue to apply throughout the whole maternity leave period (not just the first 39 weeks of leave).
If a mother returns to work before fully using her maternity leave and pay, the unused part can be transferred to the father.
Note that from 2020, a parental bereavement allowance (two weeks’ unpaid) has been introduced as a right from day one of employment.
What you must do
1Give reasonable paid time off work so that your employee can have ante-natal care. Fathers have no legal right to time off to accompany their partners, but some employers do voluntarily allow unpaid leave.
2Carry out a risk assessment to identify any risk to your employee’s health or that of her child. If necessary, remove that risk or make alternative arrangements.
3Do not dismiss your employee, or change her contract terms and conditions without agreement, because she is pregnant.
4Give your employee statutory maternity pay – SMP (p. 264).
5Give your employee her job back (p. 264).
6Give new fathers up to two weeks’ ordinary paternity leave and statutory paternity pay.
7Give new fathers up to 26 weeks’ additional paternity leave if requested and, if applicable, statutory paternity pay.
8Give parents who are adopting time off and statutory adoption pay.
9Seriously consider requests from working parents for a change in their hours or work pattern.
Dismissing while pregnant
A woman will automatically be held to be unfairly dismissed if (among others) the reason for dismissal is that she is pregnant or for any reason connected with her pregnancy.
An Employment Appeal Tribunal has also found that it can be sex discrimination to dismiss a woman because of pregnancy if you would not dismiss a man who would need similar time off for an operation.
If a pregnant employee cannot do a particular job or it would be illegal for her to do so, then the employer is entitled to offer her a different job that she can perform where appropriate. An employee is entitled to receive no less favourable terms than that of her previous position. If there is no other position, then she may be entitled to be suspended on full pay, but she cannot be fairly dismissed in these circumstances unless the dismissal can fit one of the legal categories and has no relation to pregnancy.
There are a couple of new areas of entitlement expected during the next couple of years; neonatal leave and pay (probably 2023) and extended pregnancy protection from redundancy (no date as yet).
Maternity leave
Regardless of how short a time she may have worked for you, your employee is entitled to 52 weeks’ maternity leave. Thirty-nine weeks of this will normally be paid leave. The first 26 weeks is known as Ordinary Maternity Leave, the last 26 weeks as Additional Maternity Leave, for which the rules on returning to work are different (see below).
The employee must normally tell you by the end of the 15th week before the expected week of childbirth (EWC) that she intends to take leave. She can then take the full 52 weeks without giving you any further notice. However, if she wants to come back to work early, she must give you eight weeks’ notice of her intention.
If your employee is off work sick during the four weeks before the start of the EWC, her leave will be deemed to have started automatically. Otherwise, it starts when the employee chooses, provided this is no earlier than the beginning of the 11th week before the baby is due.
During the whole maternity leave period, your employee continues to have the same non-pay contractual rights as she did while working. What these rights are depends on the contract of employment but are likely to include, for example, the right to accrue paid holiday entitlement. The right to any contractual perks, such as a company car, also continue. The period of maternity leave counts as continuous employment for the purpose of her pension rights.
You can ask your employee to work up to ten Keeping in Touch days during her leave. However, these days are optional for your employee as well as you, so she does not have to take up the days offered. She has the right to return to work at the end of her leave – normally to the same job she had before her leave started.
Maternity pay
You must normally pay statutory maternity pay (SMP) to an employee during the first 39 weeks of her maternity leave even if she is not going to return to you after the birth of her child. You pay SMP if your employee:
- has given you the correct notice;
- is still pregnant at the 11th week before her baby is expected;
- has average weekly earnings of at least £120 a week in an 8-week ‘relevant period’;
- has been continuously employed by you for six months or more by the end of the 15th week before the baby is due.
The amount of SMP is 90 per cent of average earnings for the first six weeks of the period. Thereafter, it is £151.20 a week in 2021–22 (or 90 per cent of weekly average earnings if this average is less). You pay SMP even if your employee has stopped working for you.
You can claim back some or all of the SMP that you pay out. You get the relief by deducting it from the tax, National Insurance contributions and other PAYE deductions you would otherwise hand over to HMRC. If the amount you must pay out to employees exceeds the PAYE deductions you’ve collected, apply to HMRC for advance funding. You can recover 103 per cent of the SMP you pay out if the employer’s and employees’ National Insurance contributions you collect come to no more than a set amount, which is £45,000 in 2021–22. If the National Insurance comes to more, you can claim back 92 per cent of the sum you pay out (and have to fund the remaining 8 per cent yourself). If you are using payroll software, it will automatically calculate the SMP due and the amount you can reclaim.
Right to return to work
Your employee has the right to return to the same job if she has worked for you continuously for one year at the beginning of the 11th week before the baby is due. However, if the employee has taken more than 26 weeks’ leave, you can offer a similar job if it is not reasonably practicable to keep the original job open. Your employee may lose the right to return to work if:
- her job no longer exists because of redundancy and there is no suitable alternative job (in which case redundancy pay may be due);
- it is not practicable for her to return to her job and you have offered suitable alternative work, which she refuses.
It is assumed that the woman will return to work at the end of her maternity leave. Within 28 days of being notified that the employee wishes to take maternity leave, you must notify her of when she is due back to work and she must confirm her plans in writing if you ask her to. If she changes her mind later, she must give you eight weeks’ notice of that change.
Paternity pay and leave
Fathers who have worked with you for at least 26 weeks are entitled to take up to 2 weeks’ ordinary paternity leave following the birth of their child. Provided they have earned at least a minimum average amount (£120 a week) during the preceding 26 weeks, they are also entitled to statutory paternity pay (SPP) of £151.20 a week (or 90 per cent of their average earnings if less).
Fathers may also qualify for additional paternity leave in order to take care of their newborn child. This is leave that can be transferred from the mother if she has returned to work without taking her full leave entitlement. The father can also get additional paternity pay for any part of the transferred period if the mother would have been entitled to SMP (p. 264) and the father’s pay exceeds the £120 a week qualifying limit. Additional paternity leave can last for a maximum of 26 weeks.
To apply for additional paternity leave, both the mother and father must sign a completed form SC7 and give it to you, as the employer of the father, at least eight weeks before they want the leave to start. You must respond within 28 days either to request more information (such as the child’s birth certificate) or to confirm the date that leave starts. You cannot refuse the leave or pay if the father meets the entitlement conditions.
Parental leave and time off for dependants
Employees who have worked for you continuously for a year or more have the right to take up to 18 weeks’ unpaid parental leave to care for their child up to their fifth birthday. The age limit is under 18 if the child has a disability. Each parent can take no more than four weeks’ leave in a year for each child and must give 21 days’ notice before starting leave.
Employees with at least a year’s service have the right to take reasonable or unpaid leave to attend to domestic incidents/emergencies/family crises. This covers, for example, sickness, injury, a death in the family, a partner giving birth or a serious incident at school. The legislation does not include any default rules about how this right should be put into practice. So, unless you draw up your own policy and make it part of the terms of employment, there is no requirement for your employee to tell you they are taking this leave or to inform you of how long they expect to be away. You will need to make clear whether this will be paid or unpaid and how you will deal with this in practice.
Parents also have the right to bereavement leave of up to 2 weeks if their child under age 18 dies or if there is a stillbirth after the 24th week of pregnancy. Statutory parental bereavement pay of £151.20 (2021–22) is also paid to employees, but not to those categorised as ‘workers’.
Flexible working
All employees have the right to ask to switch to flexible working. The request may relate to the hours they work, the times they are required to work and where they work (for example, from home or an office). You, the employer, must consider the request. However, you can refuse if you have good commercial reasons for doing so, such as the burden of additional costs or inability to reorganise work among existing staff.
An employee will have the right to take you to an employment tribunal if you refuse to consider a request for flexible working or you have refused the request on the basis of incorrect facts. However, the tribunal will not be able to consider the merits of the commercial reasons you have given for refusal. If the tribunal finds in favour of the employee, it will be able to order you to pay compensation.
The whole nature of where the working place is located and its flexibility has been thrown up in the air with lockdowns and instructions from the government for employees and workers to work from home if possible. While employers going forwards may have different views on how successful or not this period was for a business, it is now likely that there will be more pressure from employees for flexible working. And the government may strengthen the rights of employees to request it.
Coping with an economic downturn
If you have a downturn in orders, there are several options you could consider to cut your labour costs: lay-offs, short-time working and redundancies.
Laying-off means sending staff home for a period because there is no work, but you expect this to be a temporary situation. Short-time working means laying off your staff for a set number of hours a day or days a week.
You have the right to lay off staff or put them on short-time working only if it is written into their contract of employment, there is an agreement between you and the relevant union, there is a national agreement or you can show that it is customary in your particular industry. Normally, you must still pay your employees their normal rate even if there is no work for them to do, but you can pay them less or nothing at all if there is a specific provision in the contract or agreement to allow it. You might have to pay a minimum sum, called a guarantee payment (p. 248).
If the only alternative is redundancy, you may be able to negotiate with your employees to accept a change in their contract to allow lay-offs or short-time working.
Where employees are laid off on no pay or on short-time working and getting less than half a week’s pay for four consecutive weeks (or for six non-consecutive weeks in a 13-week period), they have the option of claiming redundancy and any associated redundancy payment.
Generally, redundancy should be the last resort. Bear in mind that you may be losing good staff and may need their skills and experience when business picks up. If you do decide that redundancy is the only option, you must follow set procedures (p. 270).
Saying goodbye to an employee
An employee has to work for you for two years before they gain the right to bring an unfair dismissal claim. Therefore, in most circumstances, you have got two years to assess employees (make sure you have a probationary period), and during that time you can dismiss them without any fear of being taken to an employment tribunal and accused of unfair dismissal. However, you will automatically be guilty of unfair dismissal, regardless of the length of time the employee has worked for you, if you sack him or her and the reason for the dismissal is:
- trade union membership or activity;
- not being a member of a trade union;
- acting as a representative for negotiations about redundancy and so on;
- being pregnant or taking maternity leave;
- taking action on health and safety grounds;
- trying to enforce a statutory employment right (such as requesting a written statement or refusing to allow an employee to bring a work colleague or trade union representative to any disciplinary grievance hearing);
- refusing to do shop or betting work on a Sunday;
- acting in his or her role as a pension scheme trustee;
- reasons relating to the national minimum wage;
- reasons relating to the working time regulations;
- reasons relating to the transfer of employment rights from one employer to another;
- ‘whistle blowing’, where protection is given by the Public Interest Disclosure Act 1998.
And if you dismiss an employee who would qualify for paid suspension on medical grounds, you could be guilty of unfair dismissal if the employee has been with you for a month or more.
However, be careful in how you dismiss an employee who has been with you for less than two years in case he or she can claim breach of contract. The statutory minimum notice can be added to the dismissal date for the purpose of the calculation.
You are normally automatically guilty of unfair dismissal if you fail to follow a fair procedure. You should take fair and reasonable steps in accordance with a code of practice published by ACAS. There is also an ACAS helpline and free early conciliation service. The ACAS code is not legally enforceable but any employment tribunal will take into account whether you have followed its provisions.
What you must do
1Behave in a reasonable way when dismissing an employee.
2Give your employee the right notice.
How you can sack an employee
There are five reasons that may mean a dismissal is fair, although you will also have to demonstrate that you have followed a fair procedure and been reasonable in the circumstances. The reasons are:
1Being incapable of doing the job: this covers skill, competence, qualifications, health and any other mental or physical quality relevant to the job. Note that you do not have to prove to an employment tribunal that an employee is incompetent, merely that you believed it to be so and that you have acted reasonably. But you must make sure that your employee is aware of the requirements of the job and why and how they are not being met.
2Misconduct: for example theft, insolence, horseplay, persistent bad time-keeping, laziness.
3Redundancy.
4Legal reasons: for example, if a van driver could no longer carry out his or her duties because of losing his or her driving licence.
5Some other substantial reason: for example, if it is not financially viable for the firm to continue to employ an employee.
As you can see, it is possible to dismiss an employee if you are dissatisfied. But it is very important to follow the correct procedure and to act in a reasonable way. It can save you a lot of time and money if you do because you can demonstrate to an employment tribunal that you have acted correctly and fairly.
Dismissal is the final step in a disciplinary procedure. You must act fairly and reasonably at all times and in the context of the circumstances of the case, and usually this will be judged by reference to the ACAS Disciplinary and grievance procedures CP01 (available to download or view online).
Sacking someone on the spot
It can be done, and exceptionally a tribunal may judge it to be a fair dismissal provided the circumstances were extreme (for example, gross misconduct, such as dishonesty) and you have followed a modified statutory procedure. Immediately after the dismissal, you should give the former employee in writing an explanation of your reasons for the dismissal, including the evidence for your decision, and inform the employee that they have the right to appeal. If they take up this right, you must meet with them to hear the appeal and give the employee your final decision following the meeting.
However, in most cases, you reduce the risk of problems if instead you follow the full procedure recommended in the ACAS code. Consider suspending the employee on full pay (which does not count as a disciplinary measure) while you investigate and go through the procedure.
Can it be unfair dismissal if your employee resigns?
It may seem a paradox, but the answer is yes. It can be unfair if it is a constructive dismissal. So watch out. If you increase working hours without extra pay, cut your employee’s fringe benefits or accuse an employee of something, such as theft, without investigating it properly, it may count as constructive dismissal.
Making an employee redundant
You can make an employee redundant if you are cutting down generally on the number of employees or if your need for a particular skill in your business ceases or diminishes. But you must make the redundancy fair; do not choose married women, trade unionists, part-timers or people over a certain age, for example, as reasons for redundancy. And you must consult the recognised trade union (if appropriate) about the proposed redundancy.
If an employee has been with you for two years, you will have to pay redundancy pay. The statutory amount depends upon the age of the employee and varies between ½ and 1½ weeks’ pay for each year the employee has worked for you. There is a limit on the amount of a week’s pay (currently £544) and the maximum number of years that can be taken into account is 20. This means the maximum statutory redundancy pay an employee can qualify for is currently £16,320.
Generally you will breach the anti-age-discrimination regulations if you select employees for redundancy on the grounds of age. This means, for example, that generally you cannot operate a last-in-first-out policy (which could discriminate against younger employees) or a policy of making those with the longest service redundant (which would tend to discriminate against older workers).
The statutory redundancy pay scheme, which pays larger amounts to older workers, is exempt from the age discrimination regulations on the basis that it is harder for older workers to find similar employment elsewhere and so the larger compensation is objectively justified. If you offer more generous redundancy terms, generally your scheme will also be acceptable under the regulations if it is based on the statutory scheme (for example, based on higher pay than the statutory scheme or paying out a higher multiple for each year).
How much notice do you have to give?
You must give your employee:
- at least one week’s notice if your employee has been with you for one month but less than two years;
- a week’s notice for every year employed if your employee has been with you for 2 years, but less than 12 years;
- 12 weeks’ notice if your employee has been with you for 12 years or more.
If your employee’s contract specifies a longer notice period, the longer period applies.
These minimum notice periods do not apply to the notice given to you by your employee, who by law has to give only one week’s notice if employed by you for a month or more. So, if you want to make sure your employee has to give more notice, you must put it in the contract of employment.
Using agency workers
If you use agency workers within your business, it is the agency that is responsible for providing statutory sick pay, statutory maternity pay and similar payments to workers who qualify. However, you still have responsibilities towards the worker. Some of these are:
- Health and safety
- Working time (see p. 253)
- Facilities: agency workers have the right to access all the same facilities as comparable permanent staff including, for example, car parking, childcare facilities, canteen and so on.
- After 12 weeks with you: they should receive the same pay as your permanent employees doing comparable jobs; the same basic conditions, such as annual leave and overtime (give them a copy of your standard employment terms so that they know what these are); and if pregnant, paid time off for ante-natal appointments. Note that there is nothing in the legislation to prevent you taking on temporary staff for less than 12 weeks at a time.
Summary
1Do not be too frightened of employment law. On the whole, you can employ who you want and sack them if they prove to be incompetent.
2Behave reasonably towards your employees, giving them a chance to explain their actions. Follow all the correct procedures.
3Use all the agencies who are set up to advise in this very complex area.
4Seek legal advice. Getting it wrong can be expensive and time-consuming.
Other chapters to read
18 ‘Getting the right staff’ (p. 215); 27 ‘Keeping the record straight’ (p. 363).
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1 www.gov.uk/browse/employing-people
2 www.gov.uk/browse/visas-immigration/sponsoring-workers-students
3 www.gov.uk/browse/employing-people