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Members' Area: Employees

  • Absence: due to IllnessOpen

    Absence due to Illness
    All employees are ill from time to time. Absence through illness, whether it is frequent days off or long-term illness, can create serious operational problems for employers and represents a huge cost to businesses. Employees need to know what will happen to them when they take sick leave and how they will be paid. Employers are required to provide employees with these details, which should be included in the contract of employment or in the staff handbook. Employees also need to know what they are required to do if they are off sick:

    • Who should be notified and when
    • When is a self certificate or doctor’s certificate required

    Whilst unfortunately sickness is a fact of life, there are a number of ways in which the effects of it can be minimised if these situations are managed carefully and at an early stage. Each case should be dealt with individually and sympathetically, taking all of the circumstances into account medical advice should be sought and consideration given to making special arrangements to assist employees who have become disabled. Your aim should be to help the employee return to work. Only if this is not possible should you consider dismissal. It is possible to dismiss an employee fairly for absence through sickness but only if you have followed a fair procedure. You should call the ABDO HR Service advice line for assistance if this is the route you wish to take.

  • Absence: managing long-term absenceOpen

    Managing long-term absence
    During the initial stages of the absence you should establish:

    • The nature of the illness
    • The anticipated length of absence. Some common operations have a predictable recuperation period, so you can manage staffing levels accordingly by perhaps recruiting a temporary employee
    • Whether the employee is expected to make a full recovery

    In long term absence cases, it is important that regular contact is made with the absent employee in order to review their progress. The employee should keep you informed of any developments in his/her treatment and recovery. Maintaining regular contact will not only reassure the absentee, but will prevent the situation from drifting. The absentee should feel that the company is sympathetic to their situation but also monitoring it closely. Notify the employee when there is any change to his/her salary (eg when company sick pay is exhausted and the employee is about to receive SSP only). Arrange to meet with the employee to discuss the situation informally. This can be on company premises, if the employee is fit enough to attend, or at the employee’s home, if the employee agrees to a home visit. If the problem is not resolved and it looks as though the absence will continue, with no indication of a likely return date, you should inform the employee that his/her absence is under review and that you will need to obtain a medical report. The timing of this will depend on individual circumstances, including the size of the company and the importance of the absentee to the business. A medical report can be obtained from the employee’s GP or consultant or from the company’s medical adviser. If you wish to approach the employee’s own doctor or consultant, you must obtain the employee’s informed consent before you ask for the medical report. This is a requirement of the Access to Medical Records Act 1988. Provide your employee with a summary of his/her rights under the Act and a consent form to sign. Use the following link for an Explanatory note to employee and an Authorisation for disclosure of medical information relevant to employment. When you write to the doctor, enclose a copy of your employee’s signed authorisation. Give the doctor information about the nature of your employee’s job, and why the medical report is needed. For a suitable letter, please see Letter to doctor requesting medical report. If your employee refuses to consent to a medical report, he/she should be told that any decision you take about his/her continued employment will have to be taken on the strength of the information you have available and that could result in the termination of his/her employment. When you have obtained the medical report, consider all the possible issues:

    • What is your employee’s current state of health?
    • When is he/she likely to return to work?
    • Will he/she be limited in what he/she can do?
    • How long can the business manage without him/her?
    • Can you cover the absence by using other staff, a temp for example?
    • If you cannot wait for his/her return, or he/she is not going to be able to the same job, can you offer an alternative role?
    • Was the illness caused by conditions at work? If so, can you improve them or offer a transfer to a different department/environment?
    • Would your employee benefit from a phased return to work (perhaps working reduced hours at first, gradually building up to full time?)
    • What is your employee’s past sick record and length of service?
    • Have you created any precedents with other long term absentees?
    • Does your employee have a contractual entitlement to company sick pay or permanent health insurance?
    • Has your employee become disabled? The Disability Discrimination Act defines disability as a physical or mental impairment which is:
      • Long term (i.e. longer than 12 months) or recurring
      • Substantial
      • Affects day-to-day activities

    However, it should be noted that employees who are diagnosed with HIV, cancer or multiple sclerosis are classed as disabled from the date of diagnosis, whether or not they are showing symptoms which would affect their day to day activities. If your employee has become disabled, you must consider what reasonable adjustments you could make to facilitate a return to work. The medical report with its perceived implications should be fully discussed with the employee before any decision or action is taken. This meeting should be conducted in the same way as a disciplinary meeting. Ill health is a potentially fair reason for dismissal, if it relates to the capability of the employee to do the work he/she was employed to do. If it is decided to dismiss the employee or to take action short of dismissal (such as demotion), the statutory dismissal procedure, as set out in the Dispute Resolution Regulations, must be followed. You must:

    • Set out in writing the circumstances which have resulted in you considering dismissal or action short of dismissal
    • Send a copy of this statement to the employee and invite him/her to a meeting to discuss the issues
    • Allow the employee time to consider his/her response;
    • Hold a meeting with the employee to discuss the issues and the proposed course of action
    • Allow the employee to be accompanied at the meeting by a work colleague or trade union representative (if it is not practicable for the employee or his/her chosen representative to attend the meeting, arrange an alternative time for the meeting)
    • Inform the employee of the decision to dismiss or to take action short of dismissal and of his/her right to appeal and confirm this in writing
    • If the employee appeals, hold an appeal hearing at which a more senior manager reviews the decision and confirm the outcome of the appeal in writing

    Employers should note that if an employee is dismissed and is then re-employed or re-instated on appeal, his/her continuity of employment is preserved. In the event of a claim to an employment tribunal for unfair dismissal, it is essential that you are able to demonstrate that you have followed a fair procedure, and that the dismissal was reasonable in the circumstances. The following checklist constitutes a fair procedure:

    • Investigate thoroughly
    • Consult the employee
    • Seek expert advice (medical)
    • Explain (‘warn’ of ) the outcome if there is no improvement, and
    • Consider whether there is any solution other than dismissal
    • Follow the statutory dismissal procedure.

    When you are dealing with long term absence you would be advised to discuss the situation fully with the ABDO HR Service advice line.

  • Absence: notifying and recording absenceOpen

    Notifying and recording absence
    All employees should be required to notify their supervisor/manager at the earliest opportunity on the first day of absence. The procedure for notifying absences should be widely communicated. Unless there is good reason, failure to notify absence in accordance with the procedure should be regarded as a breach of company rules and should be dealt with according to the normal discipline procedure. See ‘Discipline’ section.

    An employee, who is absent due to illness for any period up to seven days, should be required to submit an illness self certificate. For a suitable form, please see Illness self certificate. After seven days (including non working days) a Fitness to Work certificate is required. All absences should be recorded. Use the following link for a suitable absence record Absence record. Using one form only for recording all forms of absence enables an overview of an employee’s attendance record to be obtained quickly.

    Establish a procedure for line managers to inform the person responsible for keeping these records. Access to sickness and accident records should be limited to those managers who require the information to carry out their management role.

    By maintaining accurate records, if a problem arises, you will be able to identify patterns in absence and build up evidence to present to the individual to support any action which may be necessary. You will also be able to determine when SSP and/or company sick pay have been exhausted, so that the correct adjustment to salary can be made.

  • Absence: persistent short-term absenceOpen

    Persistent short-term absence
    Recording absences (even short-term ones) and monitoring patterns of absence will indicate those individuals whose absence levels are significantly higher than others. A certain amount of short term sickness is to be expected in all organisations. The difficulty is knowing whether it is genuine and has an underlying cause (such as general ill health, working conditions, stress or domestic problems) or is a convenient way of extending leisure time. It is often difficult for an employer, faced with a number of seemingly unconnected absences to make a judgement about the individual concerned.

    The best approach is therefore to assume that the illnesses are genuine and carry out a proper investigation before deciding how to deal with the employee. On this assumption, the investigation should not be disciplinary in nature but should be carried out with sympathy, tact and understanding. It may be necessary to obtain a medical report, as you would for long term absentees, to determine if there is an underlying health problem or disability.

    The outcome of your investigation and any medical report will indicate how to proceed. Where there is an underlying health problem or disability, you will need to consider all of the issues, questions and alternative solutions arising from the prognosis, as you would with a long term absentee. You may be able to dismiss the employee fairly but only if you have followed a fair procedure. When you are dealing with absenteeism or considering a dismissal for this reason, you should call the ABDO HR Service advice line for advice.

    Malingering
    Where, after proper investigation, an employee is found to be malingering and fraudulently claiming to be ill, this will constitute misconduct. In such cases the normal discipline procedure should be followed. For detailed guidance on discipline, please see ‘Discipline’ section.

  • Absence: unauthorised absenceOpen

    Unauthorised absence
    An employee, who is unexpectedly absent from work, without prior authorisation, and who fails to make contact to explain the absence can cause serious operational difficulties. The employer, who does not know when the employee is likely to return, if at all, may feel justified in making the assumption that the employee, by virtue of his/her conduct, has effectively resigned from the company. This can, however, be a risky course of action. Where the employer makes such an assumption and the employee has not expressed an intention to resign, an employment tribunal is likely to take the view that the employee has in fact been dismissed.

    An employee, who is unexpectedly absent from work, without prior authorisation, and who fails to make contact to explain the absence can cause serious operational difficulties. The employer, who does not know when the employee is likely to return, if at all, may feel justified in making the assumption that the employee, by virtue of his/her conduct, has effectively resigned from the company. This can, however, be a risky course of action. Where the employer makes such an assumption and the employee has not expressed an intention to resign, an employment tribunal is likely to take the view that the employee has in fact been dismissed. All employees should be required to notify their supervisor/manager at the earliest opportunity on the first day of absence.

    The procedure for notifying absences should be widely communicated. Unauthorised absence, without good cause and failure to notify the employer in accordance with the notification procedure should be dealt with as a disciplinary matter. If disciplinary action for unauthorised absence results in dismissal, the employer must be able to demonstrate that the decision to dismiss the employee was fair and reasonable in all the circumstances. In the case of unauthorised absence, this means the employer making strenuous attempts to contact the absent employee (and making a record of these efforts) and giving the employee every opportunity to respond and explain his/her absence. It will also be necessary for the employer to follow the statutory dismissal and discipline procedure.

    Employers should incorporate the three step statutory procedure in the letters sent to the absent employee prior to dismissal.

    Establishing contact
    On the first day of unauthorised absence, you should attempt to make contact with the employee by telephone. Try the employee’s home number (land line) first and if this is unsuccessful try the employee’s mobile number. If necessary, leave messages on answer phones or with family or housemates. All attempts to contact the employee, even if the phone is not answered, should be documented. Make a note of the telephone number, the time you made the call and any message you left. If initial attempts at making contact are not successful, try any emergency contact details (next of kin perhaps) which the employee has provided on the commencement of their employment.

    When the employee returns to work
    If you are successful in contacting the employee and the employee returns to work, a return to work interview should be held to establish the reasons for the absence and why the employee has failed to follow the absence notification procedure. If the employee is unable to offer a reasonable explanation for their actions or absence then the matter should be dealt with as misconduct. A disciplinary hearing should be arranged, in accordance with the company’s formal discipline procedure. For detailed guidance on discipline, please see ‘Discipline’ section.

    When all attempts to make contact are unsuccessful
    If all attempts to contact the employee fail and he/she is still absent from work on day two, write to the employee. The letter should confirm the dates of the unauthorised absence, outline the attempts which have been made to contact the employee and request that the employee contacts the employer to explain the absence. A specified timescale for the employee to respond, usually within two to three days, should be set allowing reasonable time for the letter to be delivered. The letter should also advise the employee that unauthorised absence, without good cause or explanation, is viewed by the company as serious misconduct, which may result in formal disciplinary action, including dismissal. Send the letter by recorded delivery (this may incur a charge from the post office). This requires the letter to be signed for at the delivery address and allows for the progress of the letter to be tracked via the internet. For a suitable letter please see Letter confirming unauthorised absence (1). If the employee fails to respond to the letter, within the given timescale, you should ring the ABDO HR advice line for advice on how to proceed. You must be able to demonstrate that all reasonable attempts have been made to contact the employee and that the employee has had the opportunity to provide the company with an explanation and justification of his/her conduct. You should therefore send the employee a second letter. The second letter should invite the employee to a disciplinary hearing, in line with your company’s formal discipline procedure. If you are considering dismissal, the letter should incorporate the statutory dismissal and discipline procedure. Make it clear in your letter that failure to attend may result in the hearing taking place in the employee’s absence and that dismissal is a possible outcome. If your first letter referred to possible summary dismissal, make sure that the second letter also makes it clear that this could be the outcome. The letter should inform the employee that he/she has the right to be accompanied at the hearing by a work colleague. It should also refer to the employee’s right to appeal.For a suitable letter please see Letter confirming unauthorised absence (2). For more information about the statutory dismissal and discipline procedure, please see ‘Discipline’ section. If the employee fails once again to respond to the letter and attend the formal hearing, the hearing should be conducted in the employee’s absence. If a decision is made to dismiss the employee, a letter should be sent to the employee confirming the outcome and giving the employee the right to appeal against the decision, in line with the company’s disciplinary procedures. For a suitable letter please see Letter confirming dismissal (unauthorised absence).

  • Adoption leave/payOpen

    The Employment Act of 2002 introduced the right for qualifying employees to take adoption leave and receive adoption pay when they notified by an approved adoption agency of a match with a child. Should you require more information on this subject please contact the ABDO HR Service advice line.

  • AppraisalsOpen

    Appraisals are a valid tool for businesses of all sizes. A well designed, well executed appraisal scheme can benefit both employers and employees by providing a regular opportunity for:

    • Reviewing, managing and improving performance
    • Recognising achievement
    • Increasing motivation
    • Assessing strengths and weaknesses
    • Identifying training needs
    • Obtaining feedback and ideas
    • Clarifying and setting objectives
    • Identifying future potential

    The design of an appraisal scheme and the frequency of appraisals is a matter of choice based upon the objectives it aims to achieve. Most schemes focus on reviewing past performance, setting new objectives and identifying training needs. Some appraisal schemes are linked to pay reviews. Where pay is related to individual performance. Linking the appraisal to a pay review may be a logical and necessary process. It can, however, make it difficult to achieve some of the other appraisal objectives at the same time. For example, an employee who knows that a pay increase depends on a favourable assessment is unlikely to draw attention to any weaknesses in performance. It will therefore be difficult for an employer to identify the employee’s training needs.

    Designing and implementing an appraisal scheme
    A common reason for the failure of appraisal schemes is that they are too complex and require too much paperwork. What matters in appraisal is that the discussion between appraiser and appraisee takes place and is acted upon. The paperwork is an important record of what was agreed but it is more important that there is an ongoing review of the commitments made by both parties during the appraisal meeting. Often objectives which have been set during appraisal and training plans which have been agreed are overtaken by events or other priorities. Managers should be focused on the ongoing process of performance management – supporting, monitoring and adjusting objectives – not form filling. See Appraisal form for an example of a simple appraisal form that you could base your own tailored form upon.

    The appraisal form
    Most appraisal schemes require the appraiser to complete an appraisal form. This constitutes the written record of the appraiser’s assessment of the appraisee’s performance. It is easy when designing an appraisal form to get carried away and try to cover too much ground. Keep the form simple and limit the questions to those areas which are key to your scheme’s objectives. Concentrate attention on job performance and the achievement or non-achievement of objectives, not the personal characteristics of the appraisee. Appraisal forms may be used to support unfair dismissal and discrimination claims which are brought before Employment Tribunals. It is therefore important that the criteria used to assess performance do not discriminate on any of the grounds covered by employment legislation – sex, sexual orientation, race, disability, religion or belief.

    The appraisal meeting
    Thorough preparation is the key to a successful appraisal meeting. Take time to review the employee’s previous appraisal form. Consider his/her performance since the last appraisal and whether or not the objectives which were previously set have been achieved. Look at the whole period of time since the last appraisal, not just the events which are freshest in your mind. Start putting together your assessments but do not reach too many firm conclusions. An appraisal is a two way process and your appraisee’s input might change your views. A good idea is to complete the appraisal form initially in pencil, not ink. Try to avoid subjective judgements. Instead, be ready with statistics, measurable results and actual examples to illustrate your points and back up your assessments. This evidence based approach will help you to avoid some of the common pitfalls of appraisal, including:

    • The tendency to let one of the appraisee’s characteristics (good or bad) influence your rating of all of the other aspects of his/her performance
    • The tendency to be overgenerous or overcritical ‘across the board’, so that it is difficult to compare your appraisees with others
    • The tendency to allow recent events (good or bad) to distort your view of long term performance and achievement
    • The tendency to “stay on the fence” and rate appraisees in the middle of a scale (a rating scale with an even number of points may help to avoid this by forcing the appraiser to opt for a rating above or below the middle point)

    The structure of the appraisal meeting will be largely determined by the format of the appraisal form. Most appraisal meetings begin with a discussion of past/current performance and an assessment of how far objectives have been met. The discussion will then move on to the setting of new objectives and the identification of training and development needs. Each objective set should be “SMART” – specific, measurable, agreed, realistic and time-limited. It is also important to obtain the employee’s agreement and commitment to any objectives which are set. If they are imposed or seen as unattainable, they will be resented and/or ignored. For a step by step guide to conducting an appraisal meeting and setting objectives, please see Step by step guide to conducting an appraisal meeting. Employees should be given a copy of the completed appraisal form and asked to comment on it for the record. Appraisal forms contain confidential information and should be held securely in the employee’s personal file. An employee who is dissatisfied with his/her appraisal should be given the opportunity to appeal to a more senior manager. This can be done as a further step in the appraisal procedure or as a formal complaint under the company’s grievance procedure. In either case, the employee should be allowed to be accompanied by a work colleague or a trade union representative at any subsequent appeal hearing. Responsibility for the appraisal does not end when the meeting is over. If the scheme is to be effective and credible, all of the points arising from the meeting must be followed up and any agreed actions, such as providing training or additional support, carried out. The employee’s progress towards the objectives which have been set must be monitored as part of an ongoing process of performance management.

  • DisciplineOpen

    It is important in all disciplinary matters not only to be fair but to be seen to be fair to the employee concerned. Most employers are aware of the need to follow a fair procedure so as to avoid claims of unfair dismissal to employment tribunals.

    The law on unfair dismissal requires employers to act ‘reasonably’ when dealing with disciplinary issues. What is classed as reasonable behaviour will depend on the circumstances of each case and is ultimately a matter for the employment tribunal to decide. However, core principles are set out in the ACAS Code of Practice.

    Employers who are considering dismissal or taking action short of dismissal (such as demotion) in disciplinary cases should follow their dismissal and discipline procedure. The ACAS Code of Practice is intended to complement rather than replace any other workplace discipline procedures which may already be in existence.

    Discipline procedure
    In many cases the right word at the right time and place may be all that is needed and will be a more satisfactory method of dealing with minor misconduct or poor performance than a formal interview. However, a formal discipline procedure should be followed whenever an employee is not performing properly or is failing to comply with necessary standards and where the problem cannot be solved by positive informal counseling. The procedure is not there to be used solely when dismissal is likely to prove necessary but also as a way of indicating to an employee that improvements are needed and to help the employee to make those improvements and to meet expected standards. However, where an employee is dismissed for misconduct and brings a claim of unfair dismissal before an Employment Tribunal, the basic test is always whether the employer acted reasonably. This is the major point on which the Tribunal will make its judgement. The key to ensuring that a dismissal is fair and that the employer acted reasonably is to follow meticulously a published discipline procedure.

    The ACAS Code of Practice has long been the blueprint for company discipline procedures. The procedure requires an employer who is considering dismissal or action short of dismissal to:

    • Set out in writing the reasons for the proposed dismissal or action short of dismissal
    • Send a copy of this statement to the employee and invite him/her to a meeting to discuss the issues
    • Allow the employee time to consider his/her response
    • Hold a meeting with the employee to discuss the issues and the proposed course of action
    • Allow the employee to be accompanied at the meeting by a work colleague or trade union representative (if it is not practicable for the employee or his/her chosen representative to attend the meeting, arrange an alternative time for the meeting)
    • Inform the employee of the decision to dismiss or to take action short of dismissal and of his/her right to appeal and confirm this in writing
    • If the employee appeals, hold an appeal hearing at which a more senior manager reviews the decision and confirm the outcome of the appeal in writing

    Employers should note that if an employee is dismissed and is then re-employed or re-instated on. For a suitable discipline procedure, which complies with the statutory requirements and is based on the ACAS model, please see Discipline Procedure. It is important that all employees are aware of the procedure. It should be referred to in your contract of employment and included in your staff handbook or displayed on notice boards. Because of the potentially serious consequences, you should call the ABDO HR Service advice line before embarking on any disciplinary action.

    The disciplinary interview
    It is important that no one is in any doubt about the nature of the interview which is about to take place. The best way of doing this is to tell the employee that you wish to conduct an interview of a disciplinary nature and set the time of the interview, which should normally be at least 48 hours in advance. You should set out in writing to the employee which aspects of his conduct or performance will be the subject of discussion and let him/her have copies of any documentary evidence which will be referred to in the interview. Advise the employee that he/she has the right to have a work colleague or trade union representative present. You should also arrange to have another member of the management team present as a witness and to take detailed notes. If the time set by you for the disciplinary hearing is not convenient for the employee’s chosen representative, then the employee is entitled to a postponement of the meeting to a mutually convenient time within the next five days. Where an employee brings a colleague to the meeting, you must be careful not to subject or allow the colleague to be subjected to any unfavourable treatment because of his/her attendance. For guidance on how to conduct a disciplinary interview, please see: Step by step guide to conducting a disciplinary interview.

    The appeal
    After any warning or dismissal you should advise the employee of his/her right of appeal, which forms part of the discipline procedure. Confirm the name of the person who will deal with the appeal and remind the employee of any time limits for lodging it. If you are the manager responsible for hearing an appeal, you should arrange a meeting without delay. Approach the meeting with an open mind. Do not pre-judge. As with a disciplinary hearing, you must be seen to be fair. For guidance on how to deal with an appeal against a disciplinary decision, please see: Step by step guide to dealing with an appeal against disciplinary action.

    Gross misconduct
    Certain disciplinary offences are so serious as to constitute gross misconduct. Some examples of gross misconduct (though not an exhaustive list) including drunkenness, fighting and proven theft should be listed in your discipline procedure and company rules. These are actions by the employee which go to the root of the contract of employment and destroy it. If proved, the result for the employee will be summary dismissal without notice or pay in lieu of notice. Even when an employee has been caught “red handed”, it will still be necessary to follow the formal discipline procedure and hold a properly conducted disciplinary interview. It may be necessary to suspend the employee on full pay, to allow an investigation to take place or tempers to cool.

    Letters to confirm each stage of the discipline procedure
    It is vitally important that any warning letter states clearly why the employer is invoking the disciplinary procedure and the consequences for the employee if the conduct is repeated or he/she fails to make a required improvement. If a dismissal is a possible consequence, the letter should state this explicitly. Never issue a warning letter unless you have held a disciplinary interview and never hold a disciplinary interview unless you have conducted a detailed investigation into the facts of the case. For a letter requiring an employee to attend a formal disciplinary hearing, please see: Letter of invitation to formal hearing.

    For suitable letters confirming disciplinary warnings, please see: Letter confirming verbal warning (Discipline), Written warning (Discipline), Final Warning (Discipline).

    For a letter to confirm an employee’s suspension from work, pending an investigation into alleged gross misconduct, please see: Letter confirming suspension (alleged gross misconduct).

    For letters confirming dismissal, please see: Letter confirming Dismissal / Action Short of Dismissal (following Disciplinary Warnings), Letter confirming Summary Dismissal (for Gross Misconduct).

    If the employee lodges an appeal against the disciplinary action which has been taken, it will be necessary to hold an appeal hearing. Use the following link for letters which confirm the appeal hearing and the result: Notice of Appeal Hearing (Discipline), Notice of Result of Appeal Hearing (Discipline).

    Disciplinary warnings record
    Disciplinary warnings records should be held (securely) and completed by the person who holds personnel records. Details for the records can be obtained from warning letters which are kept in the employee’s personal file. Many disciplinary procedures contain the provision that disciplinary warnings expire after a certain period of satisfactory conduct. Some disciplinary procedures may go further and state that warnings will be removed from the personnel file after this time. This would comply with the fourth data protection principle to keep personal data for no longer than necessary. However, it is strongly advised that a disciplinary procedure does not refer to the removal of warnings to ensure that employees are unable to abuse the system by, for instance, a repetition of misconduct immediately after the warning has expired.

  • Emergency leave for dependentsOpen

    A family emergency can happen to anyone at any time. Most employers take a sympathetic view of these events but employees also have certain legal rights when they are faced with an unexpected crisis. Employees have the right to take a reasonable amount of unpaid time off to deal with problems and emergencies in respect of their dependents.

  • Employment recordsOpen

    All employers need to keep records of their employees’ employment details (such as job title and salary) and certain personal details (such as date of birth and home address). This information will be held either on a computer or on manual record cards and used for payroll and personnel management purposes. The Data Protection Act 1998 regulates the processing of this information (how it is held, used and disclosed) through a set of 8 data protection principles. The Data Protection Act relates to both manual and computer records. It is safer and certainly best practice to assume that the Data Protection Act applies to all employee records.

    Manual records
    Employers without appropriate computer systems for keeping employment records should see below for a set of basic employment record cards which should be completed and kept updated for every employee.

    Salary and benefits record
    This provides an “at a glance” history of remuneration. The cost to the employer of any benefits which are provided to the employee is included in this record for tax purposes (P11 D).

    Absence record
    All absences should be recorded. Using one form only for recording all types of absence enables an overview of an employee’s attendance record to be obtained quickly. Due to the detail involved and, in particular, the information as to whether the absences are to be paid or not, it is likely that the person responsible for personnel records or salary administration will be in the best position to complete this form. To ensure that the correct payments are made, it is important that this person is notified promptly when employees are absent or return from absence. Establish a procedure for line managers to inform personnel or salary administration of absences on a weekly basis. Keep details of the illness separate from the record of the dates of absence. Access to sickness and accident records should be limited to those managers who require the information to carry out their management role. By maintaining accurate records, if a problem arises, you will be able to identify patterns in absence and build up evidence to present to the individual to support any action which may be necessary. You will also be able to determine when SSP and/or company sick pay have been exhausted, so that the correct adjustment to salary can be made.

    Training record
    In addition to recording training courses attended, this form can also be used for recording training needs and the provision of training other than training courses, such as on the job training.

    Disciplinary warnings record
    A disciplinary warnings record provides a useful way of monitoring an employee’s disciplinary history and the development of any patterns of undesirable behaviour.

    Ensuring compliance
    Employers should introduce appropriate personnel systems to ensure compliance with the 8 data protection principles and the Data Protection Codes:

    • Records which are kept should be adequate and relevant but not excessive. Do not hold information which is not needed and not used. Assess the data you currently hold and decide whether or not it is necessary. Destroy records which are no longer necessary or relevant.
    • Make sure that employees are aware of the information you are keeping on them and how it will be used or disclosed. Remind them of their rights under the Data protection Act, including their right to access their own records.
    • When a new employee is appointed, some of the information collected during the recruitment process will be transferred to their employment records. Do not transfer any information which is not relevant, for example the applicant’s salary with his/her previous employer. Delete this information from your records.
    • Records should be kept up to date and accurate. Employees should be required to notify changes of name, address, telephone number, bank details and marital status as soon as they occur. Use a form for this purpose and include it in your staff handbook. Change to Personal Details Form. Issue employees with a copy of their basic employment records each year and ask them to check their details for accuracy
    • Records should not be kept for any longer than is strictly necessary. Pay and personnel records (excluding pension documentation) should be deleted (from a computer) or destroyed (if manually recorded) at the end of the seventh year following the year in which the employee leaves employment. Clock cards, overtime sheets and absence records should be retained for at least two years
    • Where an employee has requested information relating to his/her personal data, you should respond promptly, within an absolute maximum of 40 days
    • Records should be kept securely and only authorised, named users should have access to computer screens or manual records holding employees’ information. Those with access to confidential records should be fully aware of the need for confidentiality.
    • Employers often receive enquiries about their employees from banks, mortgage lenders or other agencies. Private information, such as salary details, home address or telephone number, should not be disclosed without the employee’s consent.
  • Equal opportunitiesOpen

    The principle of equality of opportunity in employment is enforced by an ever growing number of laws and regulations. Discrimination on the grounds of sex, marital status, civil partnership, race, disability, sexual orientation, religion or belief can be direct or indirect. It can also include harassment, bullying or victimisation on any of these grounds. Consideration of equal opportunities is applicable to all areas of employment and should be borne in mind at every stage of employment. Pay particular attention to:

    • The recruitment process
    • Your pay structure
    • Your selection processes for training, transfers and promotion
    • Your selection criteria for redundancy
    • Your procedure for dealing with absence due to illness
    • Your company’s dress code – do not be so prescriptive (for example banning women from wearing trousers) that you risk a claim of sex, race or religious discrimination
    • Your facilities for disabled people
    • Terms and conditions for fixed term and part time employees which overall should be no less favourable than those offered to comparable permanent employees
    • Your treatment of pregnant employees
    • Policies and benefits that involve the spouses should include non married partners, same sex partners, civil partners
    • Working practices which might be adjusted to accommodate religious observance, such as prayer at a particular time of day, or dietary requirements
  • Flexible workingOpen

    At a time when most parents are working parents and employees of all descriptions are striving to achieve an acceptable work life balance, the opportunity to work flexibly is seen by many employees as the most valuable benefit of all. The term flexible working refers to a range of working arrangements which give employees some choice as to when, how and where they work, as opposed to a rigid 9 to 5 regime based at the employer’s premises. Flexible working can include:

    • Part-time working
    • Home working or teleworking
    • Job sharing
    • Term-time working
    • Flexitime
    • Career breaks (sometimes called sabbaticals)
    • Along with many other variations on the traditional working pattern

    For the employer, flexible working can result in improved employee retention, lower levels of absenteeism and increased motivation. However, the introduction of such arrangements does require careful planning. Employers should consider which arrangements will suit their particular business and identify any additional costs. There is a balance to be struck between the needs of employees and the need for the business to remain efficient and properly staffed. All employees with twenty six weeks service or more, have the right to request flexible working. There is no automatic right to work flexibly but employers do have a statutory duty to give serious consideration to their applications and must have a sound business reason for refusing any request. An eligible employee may request a change to his/her:

    • Hours of work
    • Times of work
    • Place of work (to either another of the employer’s workplaces or the employee’s home)

    Applications must be made in writing, stating the date of the request and whether any previous requests have been made. The application must contain specified information, which will assist the employer to make a decision. For an application form which covers this requirement, please see Flexible Working Application Form.

    Employees may make only one application per year. If you can agree to the arrangement requested by your employee without the need for any discussion, you should issue an amended contract of employment, which includes any new terms and conditions and their effective date. Make sure that your employee understands that any contractual changes are permanent and that there is no automatic right to revert to the original contract if circumstances change. If you are unable to agree to the request straight away, you must arrange to meet with your employee. Your employee is entitled to be accompanied at this meeting by a fellow employee. Use the meeting constructively to discuss the request in detail. Consider the impact any new arrangement will have on the workload of others and the efficiency of the business. If there are likely to be problems, consider alternative solutions. There may be a compromise arrangement which will suit both parties. Be careful not to discriminate, for example by only agreeing to requests made by female employees. Requests and appeals must be considered and decided within three months of the request.

    You should:

    • Confirm in writing the new working arrangements and their effective date, making it clear that any agreed contractual changes are permanent. For a suitable form to use for this purpose, please see, Flexible Working Application Acceptance Form. You may also wish to issue an amended contract of employment for your employee to sign. or
    • Write to the employee, giving the grounds for refusing the request and the reason(s) why they apply in the circumstances.
    • There are only eight grounds on which a request can be refused:
      1. The burden of additional costs
      2. Detrimental effect on ability to meet customer demand
      3. Inability to re-organise work among existing staff
      4. Inability to recruit additional staff
      5. Detrimental impact on quality
      6. Detrimental impact on performance
      7. Insufficiency of work during the periods the employee is proposing to work
      8. Planned structural change

    An employee’s appeal must be made in writing within 14 days of the decision to refuse the request. The person dealing with the appeal must meet with the employee within 14 days of the receipt of the letter of appeal. The employee has the right to be accompanied at the appeal hearing by a fellow employee. Within 14 days of the appeal hearing, the employee must be informed in writing of the outcome. The person who heard the appeal should confirm either:

    • The new working arrangements and their effective date or
    • The grounds for refusing the appeal and the reason(s) why they apply in the circumstances

    Types of flexible working
    Employers who are considering flexible working arrangements have a very wide range of options from which to choose. Some of the most common are:

    • Part-time working
    • Home working and teleworking
    • Job sharing
    • Term time working
    • Flexitime
    • Career breaks (sabbaticals)
  • GrievancesOpen

    All grievances should be treated seriously and dealt with as swiftly as possible. If this does not happen, an individual grievance can fester and become a much larger issue. It is also possible that, if an employee feels that a grievance has not been dealt with fairly, he/she could resign and claim constructive dismissal. The test for an employment tribunal considering such a claim is whether an employer has acted reasonably. Strong evidence of this will be if the employer has followed a well drafted and fair grievance procedure. Employers should use the ACAS Code of Practice guidelines for resolving employee grievances. These procedures are the minimum standard required under the law and are intended to complement rather than replace any other workplace grievance procedures which may already be in existence. The procedures are intended to encourage employees to resolve their employment grievances within the workplace, rather than before an Employment Tribunal. An employee who fails to follow the appropriate grievance procedure will not be able to register a complaint with the employment tribunal. Employers are legally required to provide employees with a written document which specifies the person to whom the employee can apply to seek redress for a grievance and sets out any further steps in the grievance procedure. This information may be included in the employee’s written terms and conditions of employment or employment contract. Alternatively, the written statement or contract may refer the employee to a separate document to which the employee has easy access. Employers are also required, to allow workers who raise a grievance to be accompanied by a work colleague or Trade Union official at each stage of the procedure. If you receive or are aware of any verbal or written complaints from any employee, you should call the ABDO HR Service advice line.

    Informal meetings
    In many cases, employee’s grievances will be fairly minor, although important to them, and can be dealt with in an informal discussion with their supervisor or manager. Grievances specific to the immediate environment and working conditions can usually be resolved over a cup of coffee without anyone else being involved. The tone here should be one of listening and problem solving.

    Formal procedures
    If the grievance cannot be resolved informally or the employee decides to escalate it, which complies with the standards set out in the Dispute Resolution Regulations, a formal grievance procedure should be used. The standard grievance procedure comprises three steps:

    1. The employee sets out the details of the grievance in writing and sends a copy to the employer
    2. The employer invites the employee to a meeting to discuss the grievance. The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. After the meeting, the employer notifies the employee of the decision in relation to the grievance and of his/her right to appeal against the decision if he/she is not satisfied
    3. If the employee wishes to appeal, he/she informs the employer who arranges an appeal hearing. The employee has the right to be accompanied at the meeting by a work colleague or a trade union representative. After the appeal hearing, the final decision is notified to the employee

    Use the following link for a formal Grievance Procedure which incorporates the legal requirements of the Dispute Resolution Regulations. Include this procedure in your staff handbook or display it on notice boards. For letters to confirm each stage of the grievance procedure, please see: Letter of invitation to grievance hearing, Letter confirming outcome of grievance hearing, Notice of appeal hearing (grievance), Notice of result of appeal hearing (grievance).

    The dispute resolution regulations also set out a modified two-step grievance procedure to be used after employment has ended and when the employer and the employee have agreed in writing that it should apply. In addition, the employer must have been unaware of the employee’s grievance before the termination or, if the employer was aware, the standard statutory grievance procedure had not started or been completed before the termination. The modified two-step procedure is simply:

    1. The employee sets out the details of the grievance in writing and sends a copy to the employer
    2. The employer sends a written response to the employee

    The grievance hearing
    Once the employee has raised the grievance formally, the responding manager should reply within the timescales laid down in the procedure. If the manager cannot respond in this time, the employee should be informed of the reasons and the date by which he/she should expect to hear. The manager should invite the employee to attend a hearing and should inform the employee of his/her right to be accompanied by a colleague. It is also good practice to have another person from present to take notes and ensure that the meeting is constructive. Use the following link for guidance on how to conduct the meeting Step by step guide to conducting a grievance hearing. A decision should be made and communicated to the employee within the timescale laid down in the procedure, unless circumstances prevent, in which case the employee needs to be made aware that there will be a delay. In certain circumstances, with mutual agreement, it may be helpful to seek external advice and assistance during the grievance procedure. For instance, where relationships have broken down an external facilitator might be able to help solve the problem. Please call the ABDO HR Service advice line if you require assistance.

  • HolidaysOpen

    Holiday entitlement used to be a matter for agreement between the employer and the employee. The Working Time Regulations 1998 introduced the concept of a statutory minimum holiday entitlement for all workers. The statutory minimum entitlement is twenty eight days including Bank holidays paid annual leave (with a pro rata entitlement for part-timers). Many workers, however, by virtue of their contracts of employment enjoy more generous holiday provision than the Regulations specify. If this is the case, the worker’s contractual entitlement, provided it is no less beneficial, takes precedence over the statutory entitlement. The golden rule is that the employee is entitled to his/her contractual holiday entitlement or the statutory minimum, whichever is the greater.

    Holiday entitlement
    All employees are entitled to a statement of terms and conditions of employment to be issued to them within two months of commencing employment. This statement must include sufficient information to allow the employee to calculate his/her holiday entitlement. In most cases the statement will cover:

    • The number of days allowed in each 12 month period
    • Details of the holiday year (eg January to December or April to March)
    • How accrued holiday pay is calculated for leavers
    • How entitlement is pro-rated for part-timers
    • Payment for Bank and Public Holidays

    Recording holidays
    It is important to keep a record of all holidays taken. By doing so you will avoid disputes about time owing or the amount of accrued holiday pay to be paid to leavers. From a health and safety perspective, you will also be able to demonstrate that you have fulfilled your duty as an employer by ensuring that your employees have taken all of their statutory holiday entitlement during the holiday year.

    Leavers and accrued holiday pay
    Leavers are entitled to payment for holidays they have accrued whilst they were employed but have not taken. Payments should be based on the employee’s contractual entitlement or their statutory entitlement, whichever is the greater. If the employee has taken more holidays than he/she has accrued, the overpayment can be deducted from the final salary, if the contract allows. It is common for contracts of employment to contain the provision that, if the employee is dismissed for reasons of gross misconduct, he/she will lose the right to accrued holiday pay. Employers should note that accrued statutory holiday pay should never be withheld, even when the contract contains this provision. If, however, the employee is contractually entitled to more accrued holiday pay than the statutory minimum, the additional contractual element can be withheld but only if the contract allows.

  • Maternity leave and payOpen

    The law provides a pregnant employee with a number of rights:

    • Time off for ante natal care
    • Maternity leave
    • Maternity pay

    The law also protects a pregnant employee from:

    • Dismissal
    • Detrimental treatment
    • Exposure to any risks to her baby which are present in her working environment

    Any infringement of a pregnant employee’s rights could result in a claim to an employment tribunal. For this reason, whenever you are notified by an employee that she is pregnant and when there is any question about maternity rights, you should call the ABDO HR Service advice line for advice on how to proceed.

    Ante natal care
    Once an employee has made an appointment to receive ante natal care on the advice of a registered medical practitioner, registered midwife or registered health worker, she has the right to take time off with pay to keep the appointment. Employers should, however, ask for some evidence i.e. an appointment card, showing that a doctor or midwife has recommended the appointment.

    Maternity leave
    All maternity leave should be recorded on the employee’s Absence record.

    Notification
    A pregnant employee must notify her employer of her intention to take maternity leave by the 15th week before her expected week of confinement (EWC), unless this is not reasonably practicable. She is required to tell her employer:

    • That she is pregnant
    • Her EWC
    • The date when she intends to begin her maternity leave

    It is best to get this notification from the employee in writing. Ask the employee to obtain a form MAT B1 from her doctor or midwife. This will confirm the pregnancy and the date when the baby is due. A woman is able to change her mind about when she wishes to begin her maternity leave, provided she notifies her employer at least 28 days in advance, unless this is not reasonably practicable. Employers are required to respond to a woman’s notification of maternity leave within 28 days. The employer’s response must be in writing and must set out the date on which the employee is expected to return to work if she takes her full maternity leave entitlement. For a suitable letter, please see Letter for employers to acknowledge notification of maternity leave.

    Maternity leave
    All women are entitled to 52 weeks maternity leave regardless of length of service. The earliest date a woman can begin her maternity leave is the beginning of the 11th week before the baby is due. Leave may commence in three ways:

    1. By notification
    2. On the first day after the beginning of the 4th week before the EWC, if the woman is absent from work due to a pregnancy related illness
    3. With the birth of the child

    Compulsory leave
    New mothers are prohibited from working or returning to work for two weeks after childbirth.

    Return to work
    An employee on maternity leave has no need to notify you if she intends to return to work on the due day. If the employee wishes to return early from maternity leave, she must give eight weeks notice of her intention to return early. However, this cannot extend beyond the date when her maternity leave is due to end. In all other circumstances, the employer has no right to postpone the employee’s return from maternity leave. Similarly, the employee cannot postpone her return on the grounds of sickness. If the employee is too ill to return to work on the due date, you should manage the absence in the same way as any other sick leave. The employee is entitled to return to the same job. Give careful consideration to any request to return to work on a part-time basis. See Flexible Working Section. If an employee fails to return, you may, depending on the circumstances be able to take disciplinary action. You must not, however, deny your employee her right to return.

    Rights during maternity leave
    During leave all contractual terms and conditions, with the exception of remuneration, are preserved. This means that company benefits, such as a company car or membership of a private health insurance scheme should continue during maternity leave. Where the employee is a member of a pension scheme, the employer’s pension contribution should be calculated as if the employee is working normally and receiving the normal pay for doing so. If the rules of the pension scheme require the employee to make his/her own pension contributions, the employee’s contribution should be based on the amount of statutory paternity pay or contractual pay, which is being paid to the employee (if any). The employee remains bound by her implied obligation of good faith to the employer and any terms and conditions of employment relating to notice of termination, disclosure of confidential information, acceptance of gifts or other benefits and her participation in any other business. It is good practice to include those on maternity leave in all communications where possible. For example, send news letters, memos and job vacancy lists to the employee’s home address. Invite those on maternity leave to attend employer presentations if they occur during their absence. If you appoint someone to cover the work/job of the woman who is on maternity leave, always make the appointment on a temporary basis.

    Keeping in touch days
    During maternity leave an employee is entitled to work up to 10 days, known as ‘keeping in touch days’. The days could be used to attend meetings, training or any other purpose. The employee would receive normal pay for these days and this does not affect maternity pay.

    Holidays during maternity leave
    During maternity leave, an employee will continue to accrue her statutory holiday entitlement of twenty eight days paid leave per year. She will also continue to accrue any additional holidays, over and above the statutory minimum, which she may be entitled to under her contract of employment. Employees should be allowed to take their accrued statutory holidays on their return from maternity leave, even – if necessary – in a new holiday year. It is therefore important, before maternity leave begins, for the employer and employee to discuss and agree the arrangements for accrued statutory holidays to be taken. The timing of the employee’s holidays (either before or after maternity leave) is likely to depend on when in the holiday year the employee’s maternity leave falls. Where the employee has a contractual entitlement to holidays in addition to the statutory minimum, the employer’s own policy will determine the rules for taking this additional holiday. It is important, however, that the employer’s rules have been incorporated into the employee’s contract of employment. Employers are able to make a payment in lieu of any additional, contractual holidays, as long as this provision is contained in the employee’s contract.

    Statutory Maternity Pay (SMP) and the maternity pay period
    All pregnant women are entitled to 39 weeks SMP, paid by the employer, provided they have been continuously employed for at least 26 weeks (irrespective of the number of hours worked) ending with the 15th week before the EWC and their average weekly earnings are above the National Insurance threshold. This 15th week is known as the qualifying week (QW). SMP should be paid at the rate of:

    • 90% of average weekly pay for the first 6 weeks of maternity leave
    • The standard rate of SMP (which is normally increased on an annual basis) for the remaining 33 weeks of maternity leave. The standard rate of SMP is currently £138.18 per week, or 90 per cent of the woman’s average weekly earnings if this is less than £138.18 per week

    Average weekly earnings are calculated over a set period between:

    • The last pay day before the Saturday at the end of the qualifying week and
    • The last pay day at least eight weeks before that date

    Dismissal and discrimination
    Dismissal by reason of the employee’s pregnancy or for a reason connected with the pregnancy is automatically unfair. If you do dismiss an employee during pregnancy or the ordinary maternity leave period you must provide her with written reasons for dismissal. Employers should be wary of treating a pregnant woman in any way unfavourably. Unfavourable treatment on the grounds of pregnancy, childbirth or maternity leave (ordinary or additional) is unlawful sex discrimination and grounds for an employment tribunal claim.

    Health & Safety
    Employers should carry out a risk assessment where new or expectant mothers may be exposed to working conditions which may harm the baby. The same requirement applies where women of childbearing age are employed, who may be pregnant but not yet aware of their condition.

  • Parental leaveOpen

    For working parents, particularly those with young children, it can be difficult to balance the demands of work with the demands of family. Most employers are understanding when an employee asks for time off to look after a child and will accommodate the request. Employers should, however, be aware that in some circumstances employed parents have the legal right to 18 weeks unpaid parental leave to care for their children. This right is available to both men and women and is additional to maternity leave. To qualify for parental leave, the parent must have been employed by the employer for at least one year. The right to parental leave applies to the parents of children who are born to them or adopted by them. Where a child has been born parental leave must be taken before the child’s fifth birthday. Where a child has been adopted parental leave must be taken within five years of the date of adoption or the child’s 18th birthday, whichever is the sooner.

    Managing the process
    Employers can introduce their own parental leave scheme but in practice most follow the scheme which is set out in the parental leave regulations. When an employee asks to take parental leave, you can, if you wish, ask for proof of the child’s age. It would not, however, be reasonable to ask for proof each time leave is requested or to ask for documents other than the normal ones, like a birth certificate, which an employee can get hold of easily. You can also ask a previous employer to confirm if your employee has taken any part of the 18 week entitlement before he/she joined your company. Although you are not required by law to keep records of parental leave, you should record such absences as part of your normal procedures. As with all other absences, enter the details on the employee’s Absence record. If an employee tries to claim parental leave dishonestly, you should treat this as misconduct and deal with it according to your normal discipline procedure.

  • Part-time workersOpen

    Part-time workers have the right to be treated no less favourably than comparable full-time workers. This right extends to:

    • Pay
    • Contractual sick pay and maternity pay
    • access to occupational pensions, training, promotion, parental/maternity leave, career breaks
    • selection for redundancy

    The Part-time Workers (Prevention of Less Favourable Treatment) Regulations cover ‘workers’. This means all employees plus a wider group who personally undertake work under other forms of contract (for example casual and seasonal workers and agency temps) but not the genuinely self-employed. In broad terms, a pro rata principle should be applied to the terms and conditions of part-timers. They should not be excluded from opportunities and benefits available to full-timers or selected for redundancy simply on the basis that they are part-time. Part-timers who feel they have been treated less favourably than comparable full-timers can ask their employers for a written statement of the reasons for the treatment. An employer must provide the statement within 21 days of the employee’s request.

    Ensuring compliance
    To ensure that part-time employees are treated no less favourably than their full-time equivalents, employers should check contracts of employment, policies and procedures and amend anything which puts part-timers at a disadvantage when compared to full-timers. It is particularly important to check:

    • Hourly rates of pay
    • Overtime rates
    • Contractual sick pay entitlements and rates
    • Contractual maternity rights
    • Occupational pension rules
    • Redundancy policy

    If a part-time worker asks for a statement in writing explaining the reasons for allegedly less favourable treatment, you should ring the ABDO HR Service advice line for advice on how to respond.

  • Paternity leave and payOpen

    Employees with the necessary qualifying length of service have the right to take up to two weeks paid paternity leave. Paternity leave and pay may also be taken by an adopting parent, with the qualifying length of service, following the placement of a child for adoption. The right to paternity leave is in addition to the right of employees, both mothers and fathers, to take unpaid parental leave to care for their children. For detailed guidance on the right to take parental leave, please see Parental Leave.

    Paternity leave for the birth of a child
    To be eligible for paternity leave, the employee must:

    • Have or expect to have responsibility for the child’s upbringing
    • Be the child’s biological father or the mother’s husband or partner
    • Have 26 weeks continuous service by the 15th week before the expected week of childbirth

    Employees who wish to take paternity leave are required to notify their employer by the 15th week before the baby is due, unless this is not reasonably practicable. The notification must include:

    • When the baby is due
    • Whether the employee wants to take one or two weeks’ paternity leave
    • When the employee would like their paternity leave to start

    Employees are able to change their minds about when they want to begin their paternity leave, provided they notify the employer at least 28 days in advance, unless this is not reasonably practicable. You may ask employees who wish to take paternity leave to provide a self certificate which confirms that they fulfil the eligibility conditions and provides the information needed to satisfy the notification requirements. Paternity leave can only be taken in “blocks” of one or two consecutive weeks’ leave. Odd days are not permitted. Leave can begin:

    • From the date the baby is born
    • From a chosen number of days or weeks after the baby’s date of birth
    • From a chosen date

    Leave must be taken within 56 days of either the baby’s birth or the first day of the expected week of confinement. If the baby is born early, leave must be taken at a time between the baby’s actual birth date and 56 days after the baby was due. Employees are entitled to only one period of paternity leave for each pregnancy, even if more than one child is born. During paternity leave all contractual terms and conditions, with the exception of remuneration, are preserved. This means that company benefits, such as a company car or membership of a private health insurance scheme should continue during paternity leave. The employee continues to be bound by all contractual obligations. Following their paternity leave, employees must be allowed to return to the same job. All paternity leave should be recorded on the employee’s Absence record.

    Paternity leave for the adoption of a child
    An employee who adopts a child on is entitled to adoption leave and pay, provided he/she has 26 weeks’ service by the week in which he/she is notified of being matched with a child for adoption. The partner of a person who adopts, or the other member of a couple who are adopting jointly may take paid paternity leave, provided that he/she fulfils the eligibility conditions. The couple may choose which of them takes adoption leave and which takes paternity leave. To be eligible for paternity leave following the adoption of a child, an employee must:

    • Have or expect to have responsibility for the child’s upbringing
    • Be the adopter’s spouse or partner
    • Have 26 weeks’ service by the week in which the adopter is notified of being matched with a child

    Employees who wish to take paternity leave are required to notify their employer within seven days of the adopter being informed of being matched with a child, unless this is not reasonably practicable. The notification must include:

    • When the child is expected to be placed
    • Whether the employee wants to take one or two weeks’ paternity leave
    • When the employee would like their paternity leave to start

    Employees are able to change their minds about when they want to begin their paternity leave, provided they notify the employer at least 28 days in advance, unless this is not reasonably practicable. Paternity leave can only be taken in ‘blocks’ of one or two consecutive weeks’ leave. Odd days are not permitted. Leave can begin:

    • From the date the child’s placement
    • From a chosen number of days or weeks after the child’s placement
    • From a chosen date

    Leave must be taken within 56 days of the child’s placement. Employees are entitled to only one period of paternity leave even if more than one child is placed at the same time During paternity leave all contractual terms and conditions, with the exception of remuneration, are preserved. This means that company benefits, such as a company car or membership of a private health insurance scheme should continue during paternity leave. All paternity leave should be recorded on the employee’s Absence record.

    Statutory paternity pay
    Employees who qualify for paternity leave will also qualify for statutory paternity pay, provided their average weekly earnings are above the lower earnings limit for National Insurance purposes. Statutory paternity pay should be paid for either one or two weeks, depending on the amount of paternity leave the employee has chosen to take. The rate of statutory paternity pay is the same as the standard rate of statutory maternity pay. Currently this is £138.18 per week or 90 per cent of average weekly earnings if this is less than £138.18. Employees whose average earnings are below the National Insurance threshold and who are therefore in eligible for statutory paternity pay may be able to claim Social Security benefits while they are on paternity leave. Employers whose class 1 National Insurance contributions for the previous year amount to £45,000 or less can recover all of the statutory paternity pay they have paid to employees, plus an amount to cover administration costs. Other employers can recover 92 per cent of the statutory paternity pay they have paid. Employers who need to may be able to receive funding in advance from HM Revenue & Customs, for payments of statutory paternity pay. Statutory paternity pay records should be kept for three years.

  • PayOpen

    An employee’s rate of pay is largely a matter for negotiation and agreement with his/her employer. However, any agreement on rates of pay will be subject to a number of legal constraints. Employers may not pay workers less than the national minimum wage. The Equal Pay Act requires that men and women are paid equally for equal work. The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations provides that part-time workers should be paid the same hourly rate as their full time equivalents. The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 require that fixed term employees receive the same overall remuneration package as comparable permanent employees. Pay is one of the key terms of the contract of employment. Employers are legally required to specify, in an employee’s terms and conditions of employment:

    • The scale or rate of remuneration or method of calculating remuneration
    • The intervals at which remuneration is paid (weekly, monthly or other intervals)

    The ‘pay clause’ in the contract of employment should include any provision for overtime. If overtime is likely to be required, specify whether it will be compulsory or voluntary and at what rate it will be paid (for example, normal time, time and a half or more) or whether time off in lieu will be given. Employers are also required to issue employees with an itemised pay statement at or before the time when wages are paid.

    The national minimum wage
    There are three rates of the national minimum wage. From 1 October 2013, they are:

    • £6.31 per hour, for those aged 22 or more
    • £5.03 per hour, for those aged 18 – 21 inclusive and those age 22 or more, in the first six months of their employment, who are receiving accredited training

    Apprentices who are under the age of 26 and in their first 12 months of employment are not entitled to these rates.

    • £3.72 per hour for 16 and 17 year olds (above compulsory school leaving age)

    16 and 17 year old apprentices are not entitled to this rate. Employers should keep pay records three years. Employers without appropriate computer systems should use the Salary and Benefit Record which can be completed and kept updated for every worker. This provides an “at a glance” history of remuneration. The cost to the employer of any benefits which are provided to the worker is included in this record for tax purposes (P11D).

    Itemised pay statements
    Employers are required to provide employees with itemised pay statements, which show:

    • Gross pay
    • Variable deductions (such as income tax, National Insurance contributions and pension contributions) and what each deduction is for
    • Fixed deductions (such as trade union subscriptions and loan repayments) and what each deduction is for
    • Net pay

    If different parts of the employee’s pay are calculated in different ways the statement must show details of each part payment.

    Deductions from wages
    Employers may only make deductions from a worker’s wages if:

    • There is a clause in the worker’s contract which authorises the employer to do so, or
    • The worker has given his/her prior written agreement, or
    • The employer is required by law to make the deduction (for example, income tax and national insurance contributions)

    Any other deduction of wages, which does not fall into the above three categories, will be an unlawful deduction in wages. An employer is entitled to recover an overpayment of wages or expenses made to a worker where the overpayment is made under mistake of fact (for example, as the result of a clerical or administrative error) by making a corresponding deduction from the employee’s wages. When an overpayment has been made to a worker, deal with the situation sensitively and without delay. Alert the worker concerned at the earliest opportunity. If the amount paid in error is large, consider allowing the worker to repay it in instalments. Confirm the amount owing to the employer in writing and ask the worker to sign an authorisation allowing you to make the necessary deductions from wages. Where an employer has made an overpayment under a mistake of law (for example, where the employer has misinterpreted the contract of employment) this overpayment is normally irrecoverable.

  • Poor performanceOpen

    An employee who is underperforming can have a detrimental effect on productivity, customer satisfaction, health and safety as well as causing friction with other employees. Dealing with poor performance is rarely straightforward and employers should not assume that the problem is always the fault of the employee. The risk of poor performance can be reduced by:

    • Recruiting the best qualified people for the job
    • Selecting for promotion on merit
    • Explaining the nature, demands and standards of the job at the outset
    • Thorough training
    • Supervision, assessment and regular appraisal

    The key to dealing with the problem of poor performance is to investigate and identify the causes. The true causes will determine the right course of action, which should be aimed at helping the individual concerned to bring his/her performance up to standard. It is possible to dismiss an employee for poor performance, provided that an appropriate and fair procedure has been followed. See the ‘Discipline’ sectionfor details on how to manage a fair procedure. Poor Performance The disciplinary procedure provides for staged warnings. At every stage the employer should:

    • Remind the employee of the standards required
    • Specify how the employee’s work falls short
    • Provide the opportunity to improve
    • Allow time for the employee’s performance to be monitored and to make sure that the reason for the poor performance has been correctly identified.

    Dealing with poor performance
    There are many possible causes for poor performance, which cannot be blamed on the employee, for example:

    • Poor recruitment and training
    • Over promotion
    • Personal problems
    • The introduction of new technology
    • Harassment
    • Disability
    • A change in the business which requires higher standards

    Where your investigation reveals such causes, your initial response should be to offer help and support rather than disciplinary action. Where the job has changed, the new requirements and standards should be explained and the employee given additional training and time to adjust. Targets and timescales should be reasonable and realistic. Where an employee is found to have a disability, you should consider what adjustments could be made which will help him/her to improve.

    Unsatisfactory performance during a probationary period
    Contracts of employment often include an initial probationary period, of perhaps three or six months. The probationary period is a trial period, during which an employer can assess the performance of a new recruit before deciding on his/her suitability for permanent employment. In many contracts, the terms and conditions of employment that apply during the probationary period are different from those that apply afterwards. For example, the period of contractual notice to be given to (and by) the new employee may be shorter and the company’s discipline procedure may not apply. Although an employer is able to make these distinctions in relation to contractual entitlements, it should be remembered that a new employee’s statutory rights, for example to statutory holidays and statutory notice, begin on the first day of employment.

    The recruitment of a new employee represents a major investment in time and resources. It therefore makes sense for an employer to support, assist and train the new employee in the early stages of employment, so that he/she can repay that investment by making a full contribution to the business as quickly as possible. The new employee’s performance should be monitored closely during the probationary period. If there are any problems, try to identify the causes quickly and look for solutions. Explain the issues to the employee and agree a course of action. Provide whatever help and additional training may be necessary. The employee should be left in no doubt as to where he/she is falling short and what help is available.

    Employers usually carry out a formal review (appraisal) of the new employee’s performance at the end of the probationary period. If the employee has failed to reach the required standards, he/she should already be aware of the issues. The formal review should contain no surprises. In many cases, all the employee needs is more time to get up to speed. It may be possible to extend the probationary period, provide additional support and training and agree to a further review in a month’s time. However, where it is thought that the employee is unsuitable and no amount of additional time or training will help, dismissal may be the appropriate outcome. Where an employee is to be dismissed following an unsatisfactory probationary period, employers are advised to follow their dismissal and discipline procedure. See ‘Discipline’ section. Failure by the employer to follow their procedure will make a dismissal on the grounds of performance automatically unfair, provided the employee has at least one year’s service, or two year’s service if employed after 1 April 2014. An employee who is in his/her probationary period may not have been employed for a year, although this might be the case if the probationary period has been extended for any reason. There is, however, no service qualification for bringing a claim of discrimination. If a dismissed employee is successful in a discrimination claim and the employer has failed to follow the statutory procedure, any compensation awarded by the tribunal may be increased by up to 50 per cent.

    When poor performance is a disciplinary matter
    Sometimes poor performance is the result of the employees own misconduct or negligence. Carelessness, idleness, lack of motivation or failure to follow procedures and instructions all involve a measure of personal blame. In such cases it will be appropriate to follow the discipline procedure. For guidance on how to handle disciplinary issues, please see ‘Discipline’ section.

  • PensionsOpen

    The stakeholder pensions legislation provides that all businesses which employ five or more employees must designate one or more suitable stakeholder pension schemes and offer access to the scheme/s to all ‘relevant employees’. Stakeholder pensions are a form of personal pension run by commercial pension providers. They offer a low charging structure, the ability to make low level contributions and no penalties for transferring in or out. Although, the decision as to the choice of scheme(s) is ultimately one for the employer, they are nevertheless under a duty to consult with employees before a scheme is introduced.

    At present there is no requirement for employers to make contributions to the scheme, although they may do so if they wish.

    Non-compliance with the stakeholder pensions legislation will incur heavy fines.

    Auto Enrolment
    The law on work-based pensions has changed. Auto Enrolment has been introduced and means that employees are included in a pension scheme as a matter of course. All employers are required to auto enrol within three months of their staging date. More information about Auto Enrolment and to find your staging date is available form the pensions regulator.

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