FAQs - Ellis-Fermor & Negus

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FAQs

There are many questions that can arise related to employment and law. We answer some of the common FAQs related to employee rights, entitlements and discrimination law.

For further questions, please get in touch and we will be happy to help you.

 

My foreman and his wife are expecting a baby in December. I have heard talk of new rules on paternity leave. Exactly how much leave may he ask for?

The statutory right to take Ordinary Paternity Leave (‘OPL’) was introduced in 2003. Your foreman may ask for 1 – 2 consecutive weeks OPL following the birth of the baby.  To be eligible he must satisfy certain conditions and comply with notice requirements.  The weekly rate from April 2011 is £128.73 or 90% of his weekly earnings, whichever is less.

However, a new statutory right to take Additional Paternity Leave (‘APL’) was introduced on 3 April 2011.  A father may now ask for up to 26 weeks APL.  He must be eligible and give you the prescribed notice and declarations.  In addition, his wife must also be entitled to maternity leave, statutory maternity pay or maternity allowance and must have returned to work before using all of her entitlement.  If your foreman’s wife does not work he will not be eligible for APL.  Even if she works, he will only be eligible if she returns to work.  If he is eligible, then the earliest date he could take APL is 20 weeks after the baby is born.  He may also be entitled to be paid for the remaining weeks of maternity pay his wife would be entitled to, had she not returned to work. This will be up to a maximum of 19 weeks’ at the rate set out above for OPL.

Employment law is complex and always changing. If your foreman asks you for either OPL or APL then you should seek specialist advice. If you get it wrong, you may face an Employment Tribunal claim.

 

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

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 the future.

Employment law is complex and always changing and you should always seek specialist advice. If your foreman asks you for either OPL or APL then you should seek specialist advice. If you get it wrong, you may face an Employment Tribunal claim. 

 

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?

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. If your foreman asks you for either OPL or APL then you should seek specialist advice. If you get it wrong, you may face an Employment Tribunal claim. 

 

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

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. If your foreman asks you for either OPL or APL then you should seek specialist advice. If you get it wrong, you may face an Employment Tribunal claim. 

 

It is always important to seek specialist advice so if you have further questions contact a member of our Litigation department who will be happy to help:

Contact Our Litigation Team