We’re thinking a lot about recruitment this month as we’re looking for another employment law advisor to join our team. You can read more about that here

We often get asked by clients what the law says around recruitment. Other areas of employment law have fixed procedures that must be followed. Recruitment is different. There isn’t just one legally acceptable way to recruit a new employee. The important thing from a legal perspective is not to discriminate, directly or indirectly, in recruitment practices.

This means that you need to think carefully about job descriptions and criteria. For instance, you should normally steer clear of job titles or criteria that point towards a particular sex (e.g. advertise for waiting staff, not a waiter or waitress).

If certain criteria would be harder for people to meet because of a “protected characteristic” (age, sex, race, religious belief etc), think it through carefully before finalising the criteria. If you believe that you need someone of a certain protected characteristic, you should make clear in your recruitment literature why this is the case and assert that there is an occupational requirement that the post-holder must, for instance, be female or hold a particular religious belief.

While there are a variety of acceptable ways to recruit, this is the outline of a recruitment and selection procedure we normally advocate when advising clients:-

1. Start with the job description. Make sure it captures what the job will involve

2. Set criteria – what experience and skills will the person need to perform the duties contained in the job description?

3. Advertise the position – in a variety of places – on job boards, your own social media channels etc

4. Send interested parties an application form (we prefer application forms to CVs for a few reasons that may be the subject of a future article so watch this space)

5. Short-list candidates. Be strict and don’t shortlist anyone who doesn’t demonstrate that they meet all the essential criteria

6. Interview your short-listed candidates – try to have a balanced interview panel in terms of age, gender and background if possible. Keep notes from the interview and keep a note of each interviewer’s scores for each candidate

7. Hold a second interview, if necessary – this could be a more informal chat or involve delivering a presentation

8. Make an offer to your preferred candidate. Your offer should be conditional upon receipt of satisfactory references and anything else appropriate to the role (e.g. clear criminal background check)

9. Once the conditions of the offer are met, confirm the commencement of the person’s employment

While there will be variations on this outline from case to case, following this format should give you the best chance of finding the right person for the role without it being open to challenge as discriminatory.

For advice on this or anything else to do with employing people, please contact us.

With Easter coming up this weekend, most of us will enjoy a long weekend. We’re regularly asked about how bank holidays should be handled when calculating annual leave – especially when it comes to part-time workers who don’t work every day of the week. So, we hope this short article is helpful ahead of the Easter break.

All employees are entitled to a statutory minimum of 5.6 weeks’ annual leave. This equates to 28 days for a full-time employee working 5 days per week. There is no automatic right to a day’s paid holiday for any particular bank or public holiday unless the contract of employment provides for this.

An employer can fix some or all of the days on which employees take annual leave and can require employees to work on bank / public holidays. As long as an employee is permitted to take at least 5.6 weeks’ annual leave over the course of the year, the employer will have complied with the statutory requirements.

If the employer’s business closes on a particular bank / public holiday, then the part-time employee’s right to a day’s annual leave for this day depends on what days they work. If the employer’s business is closed on a day the employee normally works, then the employee will be paid for this as a day’s annual leave and the day will count towards the employee’s annual leave entitlement for the year.

If the employer’s business closes on a day that the employee does not normally work, then the employee is not affected. There is no entitlement to pay for the bank holiday but equally the employee does not have a day’s annual leave deducted from their holiday entitlement.

An example scenario might be helpful. Suppose two employees job share and each work 2.5 days’ per week. One employee works Monday, Tuesday and Wednesday morning and the other works Wednesday afternoon and all day on Thursday and Friday.

Assuming the statutory minimum 5.6 weeks’ annual leave, each employee has an annual leave entitlement of 14 days. If the leave year runs from 1st May to 30th April and the employer’s office closes for the May Day Bank Holiday, the employee who works the first half of the week will have the Monday off as a day’s paid holiday and work the Tuesday and Wednesday morning of that week as normal. This employee will be paid as normal for this week and their remaining annual leave entitlement will be 13 days. The employee who works the second half of the week is unaffected. (S)he will work and be paid for 2.5 days as normal and will still have 14 days’ annual leave to take in the year.

This issue can be complex but with some clear drafting of contractual clauses around annual leave entitlement, much of the confusion can be avoided.

Have a great Easter.

With a couple of weeks left until the UK is supposed to leave the EU and ahead of a big vote in Parliament today, we take the opportunity to look briefly at what is likely to happen to employment law when (if?) the UK leaves the EU.

The government has indicated that it is likely to preserve existing employment laws deriving from Europe after Brexit.

And now Theresa May has said that the UK Parliament will have the chance to vote on whether to adopt any new Directives issued by Europe, after UK leaves the European Union.  So, UK employment law might potentially continue to follow European Law rather than decide its own path.

UK employment law already goes above and beyond what Europe requires in some areas.  The Service Provision Change Regulations already require more of employers than the Acquired Rights Directive deems necessary and we have more holiday entitlement than required by the Working Time Directive.

If, after Brexit, we have differences in employment laws, the UK may become more or less attractive for people to work or for business to set up in.  Future employment laws will, among other things, have to strike a balance between these interests.

When we have more clarity on any changes to employment law post-Brexit, we will of course let you know.

With more and more people opting to stay at work rather than retire at what would previously have been seen as traditional retirement ages, the news this week that an 88 year old woman has become the oldest person in the UK to win an age discrimination case is a timely reminder of the need to take this ground of discrimination as seriously as we would take other grounds.

Mrs Jolly, a medical secretary, was dismissed by her employer, Royal Berkshire NHS Foundation Trust when she was 86. The dismissal was on the grounds of capability. However, the finding of the tribunal was that the employer’s treatment of her was discriminatory on the grounds of both age and disability – she suffered from arthritis and a heart condition.

Some of the actions of the employer that contributed to the finding of age discrimination were as follows:

-          She was described as being stuck in “old secretarial ways”.

-          She was not afforded the same opportunity for training. The perception was that because of her age she was not going to be helped by training.

-          Comments made by other members of staff were unfairly considered in the capability process. This included comments about her “frailty” and inability to walk the length of the building.

The judge found that any such comments made about a younger member of staff would not have been allowed to pass.

If you’re interested, you can read the judgment here

What this judgement shows is that it is important to be alive to the possibility of age discrimination coming in on the basis of stereotyping. It should not be assumed, for example, that an older employee will not be interested in training. Such opportunities should genuinely be available to all.

It is also important to remember that the same can happen with younger employees. An example would be of criticism leveled at a young worker which would not be made in the same manner to an older employee.

The moral of the story is that all employees are to be treated with respect regardless of age, and the wise employer will ensure that practices and procedures reflect this.

In this first blog post of 2019, we’re suggesting a New Year’s Resolution for employers. Very few people like having difficult conversations but, in an employment context, it’s important that matters are addressed at an early stage.

We recognise that it is often difficult to deal with concerns over performance or minor conduct issues. However, issues such as a lack of attention to detail, poor timekeeping, a below average attendance record and too much use of mobile phone in the workplace can have a negative impact on productivity and can affect morale and so should be dealt with at an early stage.

Too often managers neglect to address minor issues at an early stage. The effect of this is that the issue “snowballs” and resentment builds up, leading to a bigger problem down the line.

The Codes of Practice on dealing with disciplinary issues in the workplace (the LRA Code in Northern Ireland and the ACAS Code in GB) advocate dealing with minor issues of performance and conduct in an informal manner. Very often all that is required is a quiet word where the manager advises the employee that they have noticed a certain issue and pointing out the improvement that is required. If this leads to the desired improvement, that is the best outcome for all concerned. The employee is spared from formal disciplinary proceedings and the manager and colleagues of the employee benefit from the improvement. Only if improvement is not forthcoming or not sustained should a manager then consider moving to a formal disciplinary process for a minor performance or misconduct offence.

Our advice to employers at the start of this New Year is to nip issues in the bud early before they become bigger problems down the line. A quiet, informal conversation at an early stage usually benefits everyone involved and prevents the issue becoming a bigger one with more serious consequences. If this does not resolve the issue and you have to go down a more formal disciplinary route, the employee will not be able to say that they have not had the issue drawn to their attention before the matter went down a more formal route.

Of course, as ever, we can be contacted for advice in relation to anything contained in this article or anything else to do with the law and good practice around employing people.

In 2018, two issues dominated employment law  – employment status and holiday pay. Both on the news and in our advice to clients, these two issues came up time and time again this year.

In relation to employment status, you may be aware of cases on the news where individuals were treated as self-employed but are asserting that they should have the benefit of workers’ rights. The Uber case was in the news today as the Court of Appeal (by a majority) upheld the Tribunal’s view that the drivers should be treated as workers. You can read the BBC summary of the case here – https://www.bbc.co.uk/news/business-46617584

We have advised on lots of working arrangements this year, considering both the contractual documentation and the reality of the working relationship to ensure that the client is attaching the correct employment status to the individual as getting this wrong can be costly in terms of liability for minimum wage, sick pay and holiday pay.

In relation to calculating holiday pay, the case law has continued to develop around an employee’s entitlement to be paid their normal rate of pay during periods of annual leave. Employees should not be disadvantaged as a result of taking annual leave so should receive their normal pay to include commission and overtime and not only receive basic pay during periods of annual leave.

The case law is likely to develop further in these areas in 2019 as various cases go to higher courts of appeal. Uber has said it intends to appeal the Court of Appeal’s judgement to the Supreme Court. We will keep you informed of all the important developments in employment law through our Mark’s Monthly articles in 2019.

All that remains is to say thank you for your support in 2018 and to wish you a very happy Christmas.

Mark

With one month to go in the year and many organisations using the calendar year as their leave year, we’re taking this opportunity to remind clients of what they need to know about holidays and holiday pay.

There have been further high profile cases on holiday pay in recent weeks – one involving the Police Service in Northern Ireland and another from the European Court of Justice.

So, what do employers need to know about holidays and holiday pay? Here are the main points:-

1. All employees in the UK are entitled to 5.6 weeks’ paid annual leave per year

2. Holiday pay should be based on average earnings including commission and regular overtime, not just basic pay. There are some issues to be resolved in the case law in this area regarding whether there is a distinction to be made between the 4 weeks’ leave granted by the European Directive and the additional 1.6 weeks granted under UK law. However, it seems to us that it would be prudent for employers to be paying average earnings to employees for all periods of annual leave throughout the year

3. Employers must demonstrate that employees have had the opportunity to take their full annual leave allocation throughout the leave year. This will be significant for any employer who operates a “use it or lose it” approach to annual leave

4. Annual leave continues to accrue during long-term sick leave

5. Annual leave continues to accrue during an employee’s notice period. If an employer wants an employee serving notice to use up annual leave during the notice period rather than be paid in lieu of accrued leave on termination of employment, the employer must give notice to the employee of the requirement to take annual leave. The notice must be twice as long as the period of annual leave to be taken.

Holiday pay is a complex area. The purpose of this article is not to go into any particular aspect in detail but to highlight the main areas employers need to be considering. For advice in relation to any of the issues raised in this article or anything else to do with employment law, please contact us.

Everyone falls ill from time to time and employers should understand that there will be occasions when employees are off work due to sickness. However, a good attendance record from employees is essential to the smooth running of any organisation. When employees are absent on sick leave, this is not only a difficulty for the absent employee but also for their colleagues who often find that they have more work to do to cover for the absent employee. For the smooth running of the organisation, it is essential that absence management is handled in a pro-active manner.

Reporting absence

Employees should be made aware of what reporting mechanism is in place for them if they are absent from work. This should be set out in an absence policy and it is important to ensure that a copy of this is easily accessible to employees so that they know who to contact if they cannot attend work due to sick leave. It is usually best to require employees to telephone their line manager personally where possible so that as much information as possible can be gathered about the sickness absence and the expected duration of the absence.

Keeping in touch during a period of absence

Employers are often nervous about keeping in touch with employees, in case they are accused of harassing a sick employee. However, lack of contact or involvement could lead to an employee feeling that the employer does not care.  Appropriate contact is essential. If the contact is supportive and caring, and focused on supporting the employee, there should be no difficulty with it.

If the absence is for a lengthy period of time, it is important to keep in touch with the employee to remind them that you care about their welfare and to keep them updated about changes in the workplace. Ongoing contact is also important to ensure that the employer always has the most up to date information and is working from an informed stance when considering timescales for a return to work and whether any adjustments can be made to facilitate a return to work.

Employees should be made aware of their responsibility to keep in contact during their sickness absence, although an employee who is seriously ill is unlikely to be able to comply with normal reporting requirements.

Sometimes employees request that the employer does not make contact during sickness absence. It is important to establish the reason for this request as it may identify that there is an issue in work that is contributing to the employee’s ill-health and, if the employer is aware of this, steps can be taken to address the issue and work towards a resolution and the employee’s return to work.

Seeking medical opinion

It can be helpful to take advice from a sick employee’s doctor regarding the employee’s condition, expected timeframe for recovery and whether you can do anything to assist the employee in returning to work. It may also be appropriate to consider arranging an assessment with an occupational health doctor. Your employee does not have to give permission for you to write to their doctor or consent to you obtaining a report from an independent doctor but if consent is refused, you can tell the employee that you may have to reluctantly make decisions regarding their employment without the benefit of medical opinion.

Returning to work

The absence management process does not end when the employee returns to work. The employee’s line manager should conduct a return-to-work interview with the employee after their absence, so that the employee is aware that their absence has been noted and so that any support the employee might need upon returning to work can be identified. The return-to-work interview also gives the line manager the opportunity to raise any concerns about the absence, particularly if the employee has a poor attendance record. A written record should be kept of the return-to-work interview.

Terminating employment due to long term incapacity

If, having conducted enquiries and sought medical opinion, it is apparent that there is little reasonable prospect of the employee returning to work, the employer may consider terminating the employment by reason of the employee no longer being capable of doing the job. Great care should be taken when exploring this option. The statutory dismissal procedure should be followed in full and employers should be conscious of the need to explore whether reasonable adjustments could be made to accommodate an employee’s return to work. There is a specific duty to make reasonable adjustments for employees who are disabled.

Persistent, short-term absences

Persistent, short-term absences can be addressed using a disciplinary or capability procedure as appropriate. An employee should be made aware that there are concerns about his or her attendance before any formal procedure is invoked. The employee should be aware that a lack of improvement in attendance might result in  warnings being issued. If ultimately there is no improvement, dismissal may be a fair outcome after warnings have been issued, though of course it will be important to follow a fair procedure, including adhering strictly to the statutory dismissal procedure.

If there has been a serious breach of the absence policy, an employer might consider whether this amounts to gross misconduct and should result in summary dismissal. A typical example of this may be where the employee informs the employer that they are ill and then is spotted working elsewhere while off work on sick leave.

Conclusion

Absence management is difficult. While procedures are important, it is also vital to exercise common sense and discretion and deal with matters on a case by case basis. It is not possible to provide a comprehensive checklist of actions to take in relation to every absence. If an employer is concerned about an employee’s attendance record, either through a long term absence or persistent short term absences, specific advice should be sought on the particular situation.

This article intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

Readers may be aware from various news reports in recent years, that here have been several cases taken relating to an individual’s employment status. Typically, the company or organisation asserts that the individual is self-employed and the individual is arguing that they are in fact an employee or worker.

There are certain distinctions between “employees” and “workers” but this is not the focus of this article. Rather, this article concentrates on whether someone is self-employed (with no employment rights) or a worker or employee (with some or all employment rights). Workers and employees have the right to the minimum wage and paid holiday, whereas the self-employed do not. These are the rights that the individuals taking the cases that have been in the news tend to be arguing for. 

The case law is clear that the stated intentions of the parties in any written agreement is only one factor to be considered. An arrangement that is not genuinely self-employed cannot be made into a self-employed arrangement simply because a written agreement says so or because the organisation requires the individual to invoice for their time and tells them that they are responsible for their own tax.

So  what are some of the factors to weigh up in determining the correct employment status? 

Personal service

Is the individual free to send a substitute to carry out the work? If so, they are likely to be self-employed. If however they are required to perform the work personally and cannot send a substitute, this is more consistent with the individual being an employee or worker.

Control

The greater the degree of control exercised by the organisation over the activities of the worker, the greater the likelihood that the arrangement is one of employer and employee. If the person is free to decide how and when to provide the service, this is more consistent with self-employment. Of course some degree of control is always exercised by the client of a self-employed person in relation to how the work is carried out and what the end product or service should look like and, as there is no definitive tipping point where sufficient control is exercised for the arrangement to be not genuinely self-employed, that it is always important to look at other factors, such as…

Equipment and insurance

A self-employed person would generally be expected to provide the means to carry out the tasks they have been engaged to carry out, including any tools and administrative support. A self-employed person would also normally be expected to carry their own insurance.

On the other hand, an employee is likely to have the equipment to carry out the work provided by the organisation and be covered by the organisation’s insurance. 

Integration

The “integration” test considers the extent to which the individual is a part of the organisation. Are they fully integrated into the organisation and considered a part of the team or do they simply provide a service to the organisation? Are they included in staff meetings and staff social events? Would an outsider consider them to work for the organisation?  

The more integrated a person is into an organisation, the more likely it is that they are an employee. If the person more clearly is providing a service ancillary to the organisation and is not considered part of the staff team, they are more likely to be self-employed. 

No single factor is likely to be conclusive by itself. What is required is a weighing up of the aspects of the arrangement that look typical of self-employment against those aspects that look typical of employment and a decision made on balance, having considered all relevant factors.

Attaching the correct status to the arrangements on which people are engaged is hugely important for a number of reasons and getting it wrong can have major implications in relation to tax and employment rights. If you engage individuals in your organisation on anything other than an employed basis and would like us to take a look at your arrangement to make sure that you are attaching the correct employment status to the arrangement, please do not hesitate to get in touch.

Most contracts of employment contain probationary period clauses. It is common for contracts to contain a provision that the first three or six months in employment is considered to be a probationary period.

If the employee proves satisfactory during the probationary period, the employment is confirmed. If there is still some doubt at the end of the probationary period about the employee’s suitability, the probationary period may be extended for a further period of time.

Sometimes however it is clear that a new employee is not suited to the role. This may be for a number of reasons. They may have committed an act of misconduct or it becomes clear that they do not have the skills required to undertake the role to the required level. The employee may prove to be a poor timekeeper or have an unacceptable sickness record.

So what do employers need to keep in mind if they are considering dismissing an employee in their probationary period? Firstly, employers should note that probationary periods have no special legal significance. They act simply as an internal review mechanism, providing a time-frame for assessing suitability for longer term employment. The more legally relevant issue regarding length of service is whether the employee has one years’ service (two years in GB) as, after this, the employee has the right not to be unfairly dismissed and can bring a claim to the Employment Tribunal.

Until the employee has one year’s service (or two in GB), (s)he cannot bring a simple unfair dismissal case. For this reason, many employers assume that they can simply terminate an employee’s employment during their first year’s service without explanation and without following the usual procedure of carrying out an investigation, holding a disciplinary hearing and offering the right of appeal. It is true to say that employers will usually not fall into difficulty if they let an employee go on performance or conduct grounds during their probationary period.

Therefore, employers are often understandably surprised to receive advice that, despite the fact that the employee cannot bring a simple unfair dismissal claim, there are still good reasons to follow a process before dismissing someone, even in their probationary period.

There are at least three reasons for considering undertaking a dismissal procedure when contemplating dismissing an employee during their probationary period:-

1. While employees cannot bring simple unfair dismissal cases until they have the necessary length of service, there are a number of circumstances where the employee does not need any particular length of service to bring a claim to the Tribunal. If the employee alleges that the dismissal was an act of discrimination or was because they blew the whistle on impropriety or asserted a statutory right, they can bring their claim to the Tribunal. For this reason, it makes sense to go through a process of explaining why the dismissal is being considered, providing evidence of the poor performance or conduct and confirming the reason for the dismissal in writing. A failure to do this opens the door to the employee alleging that the dismissal was for a reason that does not require a certain period of service in order to bring a claim. Having been on both sides of Tribunal cases where an employee with short service alleged that their dismissal was for a reason that did not require them to have one year’s service, we can say that it is helpful to the employer’s defence in the Tribunal if they can produce paperwork from a dismissal procedure, setting out the reasons for the dismissal, with accompanying evidence.

2. Time, effort and money has gone into recruiting and training the individual. It makes sense to take some time to make sure that it is the right decision to let the person go as further time, effort and expense will be required to recruit and train the replacement

3. As a matter of fairness, it is good practice to advise the employee that their dismissal is contemplated and give them the chance to make representations and to consider these before deciding to dismiss. The employee may say something that persuades the employee to give them another chance and, if this works out, that will be a good result for both parties.

In summary, no matter how short a time an employee has been employed, if an employer is considering terminating their employment, it is worth taking some time to go through a dismissal procedure before confirming the termination of employment.

For advice on terminating the employment of an employee during their probationary period or any other employment law / HR matter, please get in touch.