Ellis Fermor

Question  
I have a post available and am about to hold interviews. I am worried that an
unsuccessful candidate might claim compensation for discrimination. What
questions might I safely ask and what subjects should I avoid?

Answer
We all know that employees may bring claims for discrimination. So too, may job applicants.

We discriminate against someone when we treat them worse than other people for some reason.  Where this reason is related to their race, sex, or belief, disability, sexual orientation, gender identity, age, marriage or civil partnership, pregnancy or maternity, amongst others, then in certain circumstances, they may pursue a claim against us.

Making a mistake in an interview is all too easy to do. Discrimination law is wide and complex.  Questions to candidates about, say, any future plans for a family or about their health or about when they might retire may all seem  innocent but they are all discriminatory.

Here are our top three tips when preparing for interviews:

1. Select your interviewer carefully. Claims will be brought against the employer and the person who discriminated.
2. Thoroughly prepare the interview questions beforehand – focus on the job requirements.
3. Ask the same questions of all candidates. In the interview keep the conversation on the job, the employer’s business and the candidate’s application.

The above may seem cautious but any claim for discrimination will be difficult and expensive to defend and with compensation for discrimination not presently capped and awards for injury to feelings as much as £30,000 this is a claim you need to try to avoid.

Employment law is complex and always changing and you should always seek specialist advice.

Ellis-Fermor & Negus solicitors have offices across the East Midlands.  Please contact Darren Kelly on 01773 744 744; email d.kelly@ellis-fermor.co.uk or visit www.ellis-fermor.co.uk.

Question  
I have been told that I have no employment rights until I have at least 12 months’ continuous service with my employer –  is this right?  
 
Answer
That employees have few or no rights as against their employer during the first year of employment is a common misconception.

Many employment rights are available from the outset of the employment relationship.  These include but are not limited to:-

- The right not to have monies unlawfully deducted from your wage;
- Protection from discrimination on numerous grounds including race, gender and religious belief;
- Statutory minimum entitlements to annual leave and notice on termination of employment;
- Statutory minimum wage

It is commonly understood that an employee is unable to claim for unfair dismissal against a former employer without 12 months’ continuous service.  In the majority of cases this is accurate. However, employment legislation prescribes certain types of dismissal which are deemed automatically unfair from day one of the employment relationship. These include, amongst others:-

- Dismissals for reasons connected to the employee’s pregnancy;
- Health and safety dismissals; and
- In the case of shop and betting workers, dismissals relating to the employee’s refusal to work on a Sunday

It should not, therefore, be assumed that an employee without 12 months’ continuous service can be dismissed for any reason. Employers should be vigilant when dismissing employees regardless of the employee’s length of service.

It should be noted that as from 6 April 2012, the qualifying period for an employee to bring an unfair dismissal claim is to increase from 1 year to 2 years’ continuous employment. There shall remain, however, categories of dismissal – such as those noted above – which will continue to be deemed automatically unfair and will therefore not require the employee to have 2 years’ service.

If in any doubt as to your rights and/or obligations under employment legislation, you should seek professional assistance.

Employment law is complex and always changing and you should always seek specialist advice.

Ellis-Fermor & Negus solicitors have offices across the East Midlands.  Please contact Darren Kelly on 01773 744 744; email d.kelly@ellis-fermor.co.uk or visit www.ellis-fermor.co.uk.

Question:
My employees do not have contracts of employment. Is this a problem?

Answer:
Every employee has a contract of employment.  If there is nothing in writing, however, that contract is just a verbal one. Omitting to have written contracts in place leaves you vulnerable. If, for example, an Unfair Dismissal claim is brought against you, the employee will be entitled to 2 – 4 weeks’ wages for your failure to provide mandatory particulars of employment as required by employment legislation, in addition to any compensation for their main claim. Without anything in writing, the scope for disputes concerning the terms of the contract is considerable.

You should consider the following:

1) Identify what the basic terms of your employees’ contracts of employment are eg. job title/description, wage, annual leave entitlement.

2)Make sure you cover all of the mandatory particulars that you are required to provide to employees under the Employment Rights Act 1996.

3) Consider additional provisions such as deductions from wages; garden leave provisions; restraints of trade – non-competition, non-solicitation and non-poaching of employees; confidentiality; reimbursement of training fees and so on. You should consider such clauses with a view to protecting your business.

4) Consider any business-wide policies to be put in place. Disciplinary and Grievance Policies are essential. An Equal Opportunities Policy including a section on Sexual Harassment is also advisable.

We can advise on and prepare written contracts of employment. Having written contracts in place now may save you considerable expense and hassle in future.

Employment law is complex and always changing and you should always seek specialist advice.

Ellis-Fermor & Negus solicitors have offices across the East Midlands.  Please contact Darren Kelly on 01773 744 744; email d.kelly@ellis-fermor.co.uk or visit www.ellis-fermor.co.uk.