1.Is discrimination legislation relevant to the recruitment process?
Yes. The anti-discrimination legislation protects individuals who are in the process of applying for the jobs you advertise. You should therefore ensure that selection is objective and keep records of the process including records of your interview criteria as well as the reasons behind your decisions.
2.We recruit in multi-ethnic, multi-national London – what should we be asking about work status?
It is a criminal offence to employ an individual who does not have permission to reside or work in the United Kingdom. Your organisation can be penalised. It is important therefore to undertake the correct checks. However the organisation must be alert to discriminating and should accordingly pose the same questions to all job candidates. These issues are of course relevant to all employers regardless of their location and the population base.
3.When we offer work to a new employee what paperwork should we provide?
There is no obligation to provide an “employment contract” as such. However the organisation should within two weeks of the start of employment provide a written statement of particulars. The written statement of particulars provides key information regarding the terms and conditions of employment and a failure to provide this could result in a claim at the Employment Tribunal. Some employers choose to enter into a signed employment contract if, for example, they wish to include other terms and conditions, for example restrictive covenants.
4.What other documents should we give a new employee?
Organisations may want to provide a job description, the organisation’s policies including disciplinary and grievance procedures and collective agreements if relevant.
5.How can we protect our business from competitive activity by a key member of staff who leaves us?
It is possible to write into an employment contract clauses that protect your confidential information and which place restrictions on the employee’s behaviour after employment ends. These are difficult clauses to enforce. The organisation has to have a legitimate business interest to protect, and any written restraints must be reasonable.
6.How do we deal with the contracts of our senior employees and directors?
Such contracts are frequently referred to as Service Agreements. It is usual to state in writing that the director is obliged to keep sensitive information confidential. In addition restraint of trade clauses and non-solicitation clauses are routine. Senior personnel typically have longer notice periods to ensure there is adequate scope for handover prior to termination of employment.
7.We have an urgent situation relating to an employee who is underperforming
The organisation should consider entering into a formal capability process. This would include regular meetings with the employee to identify performance weaknesses and if necessary providing the employee with a formal warning. A period of monitoring to improve performance is required and the organisation should set realistic objectives and offer support and training.
8.Another of our employee’s conduct is lacking – in particular their timekeeping
The organisation should consider entering into a formal disciplinary process. This would include meeting with the employee to investigate the issues – it is possible that some contributory factor is affecting this conduct, such as sickness. However, if necessary the organisation may have to provide the employee with a formal warning and a monitoring period to establish an improvement.
9.How can we protect the organisation from claims of discrimination?
The best route is to adopt a written equality policy and to distribute that policy to all employees. Furthermore, the organisation can provide anti-discrimination training to its managers and its staff from time to time. In the event that an employee sues the organisation for discrimination such measures may reinforce the organisation’s defence at the Employment Tribunal.
10.Our organisation has lost work and we are considering redundancies, how do we go about this? Redundancy law is well established with clearly delineated procedures and requirements. If the organisation fails to follow these procedures employees could potentially claim for unfair dismissal. It is important to research the legal requirements and then to implement them without fail.
11.Where does the law stand on sickness pay? Employers should set out the full facts of sickness entitlement in the written statement of particulars or employment contract. As a minimum the organisation is obliged to pay statutory sick pay. There is no obligation to pay more than SSP although many employers operate their own sick pay schemes which replace or top up SSP.
12.What about employees who are absent due to long term sickness?
Many organisations seek to dismiss employees who are absent for a long period. Often they overlook the need to consider the Disability Discrimination Act 1995 which could render such a dismissal discriminatory. If the employee is not disabled the organisation is nonetheless under an obligation to do all that it can to keep the employee in employment by, for example, offering alternative employment. The process may include consulting with the employee and undertaking an occupational health examination. However, if there is no prospect of the employee returning to work and the organisation is unable to keep the position open there may be grounds for dismissing. This is a complex area and it is important to seek advice prior to taking any action.
13.We are considering purchasing a small unit, do we have obligations towards their staff?
It is most probable that you will have legal obligations in respect of the unit that you seek to take over. The relevant legislation depends on whether this is a share take-over or a business transfer where the identity of the employer changes. If the latter, then the Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly known as the TUPE Regulations) will apply. For example, if an employee is dismissed for any reason to do with the transfer, this could give rise to a claim against you for unfair dismissal in the Employment Tribunal.
14.How can we be sure that if we pay off one of our departing employees, they won’t sue us for more money?
If you have decided to enhance a termination package to a departing employee, then you will also want them to enter into a compromise agreement with you. That agreement will set out the amount of the organisation’s payment and will in turn request various undertakings from the employee, including their undertaking not to progress any employment claims against you in the future. You will want to ensure that the employee takes an independent legal advice about the compromise agreement prior to signing.
15.Do we have to provide a reference for an employee we dismissed?
If the organisation went through the appropriate procedures and dismissed an ex-employee for poor conduct or performance it may choose to decline to provide a reference (unless this is demanded by a regulatory body). If you decide to provide a reference it is appropriate to provide only facts, ensuring that matters referred to are fair and accurate.
Please contact us on 020 7420 7020 or enquiry@sethlovis.co.uk for further advice.