Questions and Answers

Date:30/06/2011 Posted by: Tony Ref: #25

Hi, we are a new company looking to employ people on a casual basis, as the hours required to work, will depend on 1) when the workers are available 2) when the customer requires their services. We will be issuing a zero hour contract to each worker. Please can you advise me what if, any holiay entitlement they are due to.

 

Yes all workers are entitled to a minimum holiday entitlement of 5.6 weeks.

 

For casual or irregular working patterns such as in zero hours contracts, it may well be easiest to calculate the holiday entitlement that accrues as hours are worked. The holiday entitlement of 5.6 weeks is equivalent to 12.07% of the hours worked. The 12.07%  figure is calculated as follows:

 

5.6 weeks holiday, divided by 46.4 weeks (52 weeks - 5.6 weeks) multiplied by 100 = 12.07%

(The 5.6 weeks have to be excluded from the calculation as you would not be present during the 5.6 weeks in order to accrue annual leave.)

 

For example, if your employee had worked 10 hours, they would be entitled to 72.6 minutes' paid holiday:

(12.07%  x 10 hours = 1.21 hours = 72.6 minutes)
Date:02/05/2011 Posted by: L Ref: #24

As a company we are going through a re structuring process with change of hours and possible redundancies. One of our part-time employees is pregnant and often off sick. It was decided that her specific role will be integrated into an existing full-time manager's role. Can we still go through the same redundancy process with her or because she is pregnant we have to 'spare' her role and review after her maternity leave finishes??  

Thanks

Under UK law, it is unfair dismissal and sex discrimination to select a woman for redundancy because she is pregnant or on maternity leave. You therefore must be able to demonstrate that any actions you take to make your pregnant employee redundant fits one of these situations:

  • the business closes down either temporarily or permanently;
  • the business moves and the employee cannot get to the new place of work;
  • fewer employees are required for existing work.

If you are certain you can establish one of these situations (from your description it sounds like the last one would be most appropriate) then you can use proper procedure to make the pregnant employee redundant.

 

 However be aware that you need to demonstrate fair selection for redundancy, therefore if another job has been altered to subsume the duties of the post, you should consider whether the pregnant employ could reasonably undertake this new role. If it could be deemed a reasonable alternative, and if she is on maternity leave then it should be offered to her before anyone else.

 

In summary then if you can clearly demonstrate a redundancy situation, the individual has been fairly selected for redundancy and there is no suitable alternative which she can undertake then you can reasonably make her redundant following the appropriate procedures.
Date:13/04/2011 Posted by: Alyson Yates Ref: #23
How can we state in a Contract that use of the internet for social networking sites e.g. Facebook etc. and Forums is strictly prohibited.
It is perfectly in order to place such a restriction within the statement of terms and conditions that you will issue to the employee when they commence working with you. However this will not affect your current employees unless you issue them with a contract amendment letter stipulating the new condition.

A better plan would be to incorporate the restriction into your staff handbook if you have one, or even better issue a proper policy on the use of the internet. This would explain much more thoroughly than a single paragraph in the contract and could describe exactly what restrictions you want to place on your staff with regard to these sites, as well as other issues like accessing pornography or abuse of your email system. You can then issue the policy to each member of staff and ask them to sign a form for their file confirming they have read and understood the policy.

There is a template internet & email policy on our website here which you can download for free and adapt for your purposes.
Date:31/03/2011 Posted by: Rufus Smith Ref: #22
We have an employee who is just about to complete her 1 years continuous service in 3 days time. We wish to terminate her employment. Are we safe to do this now prior to her having one full year of service and therefore having employment rights?
Assuming that you have not yet served this employee with notice, then I am afraid you have left it too late.

Where an employee is dismissed in the week before their one year's continuity has accrued, and without at least the necessary statutory 1 weeks notice being given, their effective date of termination will be one week after the date on which they were dismissed (that is their statutory notice entitlement must be added on).

This means that employees dismissed without notice one week before their year is up will be treated as having the relevant 12 months service required to pursue a claim for unfair dismissal at an Employment Tribunal.

It would be advisable to implement a policy whereby you review all new employees after 10 to 11 months to ensure this does not happen again. Furthermore you should ensure that notice can be served to meet the contractual period of notice which may be different from the statutory minimum (e.g. many organisations give a minimum of 4 weeks contractual notice). While the contractual period of notice cannot be added on to bring the employee over the year mark in the same way the statutory notice can, the employee could still have a claim for wrongful dismissal / breach of contract if dismissed without receiving proper contractual notice.
Date:28/02/2011 Posted by: Geraldine Ref: #21

Does the statutory 26 holiday days include the 8 Bank holidays?

With thanks

PS Great service that you offer!
Thanks!

All employees are entitled to a minimum of 5.6 weeks paid annual leave (that is 28 days per annum for someone working 5 days a week). Part-time staff are entitled to this on a pro-rata basis - if you need to work out entitlement, there is a holiday entitlement calculator here. This is the minimum entitlement, but employers can give more holidays than this if they wish.

In answer to your specific question, bank and public holidays (i.e. the eight permanent bank and public holidays in England and Wales, nine in Scotland and ten in Northern Ireland) can be included in the 5.6 weeks minimum entitlement.

N.B. The royal wedding is on 29th April 2011 and there is an extra bank holiday on that day. Your staff will be entitled to this holiday if it says in their employment contract they are entitled to "x days holidays plus bank holidays". If it says "x days holiday per year inclusive of bank holidays", then you don't have to grant this as an additional day (although it might be a little mean not to!)
Date:22/02/2011/td> Posted by: Keith Ref: #20

1. One of my cleaners has been on maternity leave since January and has provisionally said that she would like to return to work in September.

2. We are not sure that she is going to return so ring her to discuss this with her. She says that she does want to comeback but is looking to comeback part time, working Mon, Tues & Thursday only, at times around the nursery opening times, allowing her time to also travel.

3. She also mentions in the conversation that she wanted to come in before then to catch up with the team for a few days.

4. Lastly she also tells me that her child has a slight medical condition, and that she will be expecting to have to take some time off for appointments and if the child is sick.

What are the various issues here, and how would I deal with each one?
1. Assuming your employee is employed by you under a contract of employment, then she is entitled to take up to 52 weeks statutory maternity leave. Therefore returning in September is appropriate. In order to return early from maternity leave, she must give you at least 8 weeks notice of her return - again fine.

2. An employee has a statutory right to make a request to work flexibly, e.g. to change start or finish times, do part-time hours etc. if they meet certain criteria - they must:
  • be an employee - agency workers do not qualify
  • have worked for you continuously for at least 26 weeks on the date they make their request
  • not have made another statutory request during the past 12 months

The employee can only make an application to care for either:

  • a child under 17 (under 18 from 6 April 2011)
  • a disabled child who is under 18, and who is in receipt of disability living allowance
  • certain adults who require care

Assuming the employee in question meets these criteria, then you are required to seriously consider whether your business can accommodate this request. You can agree to this request outright, or if you do not agree to it or require more information, then you must arrange to hold a meeting with the employee to discuss this (the employee will have a right to be accompanied by a work colleague or trade union representative). Your employee will also have a right to appeal against a decision to refuse a flexible working request. Should you decide to do anything other than agree to her request, then you need to make yourself familiar with the statutory procedure and timescales for considering flexible working requests. More information here..

3. It is reasonable for the employee to want to stay in touch during her maternity leave period, and is probably to your benefit to allow her to catch up with her team before her return. It will be discretionary however as to whether you wish to allow this or not. If you do and deem this to be working time, then the easiest way to remunerate this would be to give her the equivalent hours off in lieu once she returns to work.

4. Employees with young (or disabled) children are entitled to take 13 weeks unpaid parental leave (assuming she has at least 1 years continuous service with you). A week's leave is equal to the length of time the employee is normally required to work in a week e.g. 5 days for someone working Monday to Friday, 2 days for someone working Tuesday and Friday only etc. It might be appropriate for this employee to take some of her parental leave around the child's medical needs.

All employees are also entitled to reasonable unpaid time off to deal with an emergency involving a dependant (however it is unlikely that planned medical appointments would fit this criteria). There's no set amount of time stipulated to deal with an unexpected event involving a dependant - it will vary depending on what the event is. For most cases one or two days should be sufficient to deal with the short-term problem.

As both parental leave and dependant leave are unpaid (assuming your contract of employment does not make any provision for payment for this leave), there is nothing to stop the employee from utilising some of the paid annual leave she may have accumulated during her maternity leave to attend her child's medical appointments should she wish to.
Date:14/02/2011 Posted by: Kathy Hemingway Ref: #19

We are a small company and have just grown to 12 members of staff.  I have introduced a health and safety policy but am unsure of the legal requirements about other policy such as disciplinary and grievance.  Please could you give me some advice? I have looked on the business link website, which is rather confusing - it says ''  Common types of employment policies and whether they have to contain minimum legal requirements'(http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1073791959&type=RESOURCES) do you know if this means there is a legal requirement to have these policies or if you have them you must include certain material? I hope I have made myself clear, because I am confusing myself!! Thanks and I look forward to hearing from you soon.

You are off to a good start - if you have more than 5 employees you do indeed need to have, under current legislation, a written Health and Safety Policy. You also need to ensure you issue a written statement of terms and conditions of employment to new starts within 8 weeks of commencement. You should also set out your disciplinary and grievance procedures in writing.

In terms of other legal requirements to have actual policy documents there really aren't any. However  as your company grows and develops, it makes sense to introduce policies to ensure a consistent and fair approach – this avoids wasting time and management effort by having crises dealt with in an uncoordinated and ad hoc way. There is also of course the requirement to take account of employment law and it is much easier to do this if you create and introduce policies which meet all these requirements. Things to take account of are:

Discipline / Grievance - you are bound to take account of the ACAS statutory Code of Practice on discipline /dismissal and grievance. A failure to follow the Code does not, in itself, make the company liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases.

Redundancy - needs to be within the legal arrangements for making individuals or groups redundant including selection for redundancy and consultation requirements.

Parental Rights - Individual maternity, paternity, adoption pay and leave; parental leave entitlements.

Working time arrangements - entitlements to annual leave and other time off.

Equality - The Equality and Human Rights Commission have stated:
"that every organisation should have an equality policy to ensure equal opportunities, and share it with staff.." This should also involve arrangements for how you will deal with harassment issues.

Pay - you should be sure that you pay policy meets the obligations under the minimum wage legislation for all affected age groups.

Whistle blowing - individuals have protected rights when making a qualifying disclosure.

Health & Safety - covers a range of statutory issues like risk assessment, assessment of pregnant and new mothers, policy on smoking on company premises. The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR), require you to report work-related accidents, diseases and near-miss incidents

The easiest way to deal with all these issues is to simply set them out in your company staff handbook if you have one (or wish to develop one), but there is nothing to stop you doing it by introducing individual policies either.

Date:04/02/2011 Posted by: Frank Ref: #18

We have a member of staff who outside of work latches onto our customers as friends either in person or on facebook. Outside of work however she drinks a lot and tends to make a fool of herself. I am worried this can contaminate the business relationship with clients, and wondered if we can restrict this activity outside of work?
The issue here is really whether your employee is likely to bring the company into disrepute with your customers through actions in her private life. That is where her inappropriate conduct outside the workplace becomes associated with you as her her employer, and where it might impact on your company by discouraging your customers in doing business with you because of this employee's out-of-work activities.

Ideally you should have in your contract of employment a statement to the effect that behaviour outwith work which might bring the employer into disrepute could be subject to disciplinary action and potential dismissal.

However even if you don't have such a statement, you can still arrange to speak to your employee and outline your concerns to her. You should follow this up in writing to her explaining your concerns and outlining why if she continues with this behaviour it would lead you to lose confidence in her and precipitate the necessity to investigate her behaviour under your disciplinary procedures. You should leave her in no doubt that continuing this behaviour could ultimately lead to her dismissal.

If she then continues to act in this way, you should properly investigate her behaviour using your disciplinary procedure, and issue her with warnings as appropriate. If she then perseveres with this behaviour, you can ultimately fairly dismiss her.

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