A. a dismissal may be deemed as “fair” if it was for one of the following reasons: • Conduct • Capability or qualifications for the job • Redundancy • illegality • Some Other Substantial Reason of a kind which justifies your dismissal
Q? Can employees take time off to deal with family emergencies?
A. Employees do have the statutory right to take time off to deal with an emergency involving a dependent. This is an unpaid right. Employees are entitled to a reasonable period of unpaid time off during working hours to deal with an emergency involving adependent. Normally, this would be a maximum of one or two days… Q? Are there any circumstances in which an employer can insist on recruiting from a particular racial group? A. Yes, under certain limited circumstances employers have a defence to a discrimination claim where being of a particular racial group is a genuine occupational requirement or qualification for the job.
Q? If a business client harasses an employee, is the employer liable?
A. An employer will be liable for acts of its agents, and could be liable to an employee for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced.
Q? Is it lawful for an employer to dismiss a complaint of harassment or bullying from an employee who is thought to be ‘over-sensitive’?
A. It is the responsibility of the employer to make all employees aware of reporting procedures for alleged harassment or bullying. Failure to provide an adequate grievance procedure could itself gives grounds for a claim against the employer. Furthermore, any employee who brings in good faith a complaint of discrimination must not be less favourably treated as a result.
Q? If an employer unilaterally cuts pay, after employees refuse to agree to it, what are the legal risks?
A. In terms of a pay cut (be it either short-term or permanent), if the employer does not have the employee’s written agreement, then there are several claims the employer may face. By paying the employee less than they are entitled to under the contract of employment, the employer will face an unlawful deduction from wages claim. Also, the employee may walk out and claim constructive dismissal. The employer may have a defence to the constructive dismissal claim of “some other substantial reason” (SOSR), or possibly redundancy, if the change was proposed in a redundancy situation.
Q? Where does an employer stand on imposed pay cuts?
A. The basic position is that an employer cannot vary an employee’s contract, unless the variation is either permissible under the contract itself, or the employee agrees to the change.
Q? Can Employers use covert cameras to monitor employees?
A. A number of the requirements of the Data Protection Act will come into play whenever an employer wishes to monitor workers. The Act does not prevent an employer from monitoring workers, but such monitoring must be done in a way which is consistent with the Act. Employers should consider very carefully why they consider that monitoring is necessary and should almost always obtain the consent of the employee before doing so. If an employee feels that his or her privacy is being intruded upon in this manner, he or she may wish to raise a formal written grievance with the employer or take up the matter with the Information Commissioner.
Q? Do Employers need permission to hold personal data on employees under the Data Protection Act?
A. It is not necessary to get an employee’s express permission to hold data on them.
Q? What rights does an employee have to access data held on them by the employer?
A. Under the Data Protection Act, employees have the right to access paper files held by their employer on them, and electronic data held by the organisation on them.
Q? Do Employers have to be provide contracts of employment ?
A. Yes, the Employer must give each new employee a written statement of ‘particulars of employment’ no later than two months from the beginning of employment.
Q? Can an employer restrict a job to people of a particular religion or belief?
A. A job can be restricted to candidates of a particular religion or belief only where, having regard to the nature of the employment or the context in which it is carried out, being of that religion or belief is a genuine and determining occupational requirement for the job and it is proportionate to apply that requirement in the particular case.
Q? Where an employer stipulates a probationary period for new employees must it wait until the end of this period before dismissing an unsatisfactory probationer?
A. An employer does not need to wait until the end of a probationary period before dismissing an unsatisfactory employee – the employee can be dismissed during the probationary period.
Q? What is Unfair Dismissal?
A. Unfair Dismissal occurs when an Employer dismisses an employee for an unfair reason and/or the Employer does not follow the correct procedure for the dismissal.
A Claim for Unfair Dismissal must be submitted to an Employment Tribunal within three months/less one day from the effective date of termination of the employment (usually the date of leaving the job)
Q? How can organisations improve employee engagement, customer satisfaction and business performance?
A. Recognition – Research shows that employees who are satisfied with their level of recognition are four times more likely to rate their boss as an outstanding leader. Exciting work – Employees want a job that’s challenging, interesting and fun. They want a sense of accomplishment. Security of employment – Employees want job security. They want to feel confident about their organisation’s future and they want stability and steady work so they can meet their financial obligations. Pay – Employees want to be compensated fairly for the work they do and the contribution they make (through base pay, bonuses and benefits). Education and career growth – Employees want to be given opportunities to develop their skills and to advance their career. Conditions – Employees want a well-equipped environment that is comfortable, healthy and safe. Honesty: Employees want to work for honest and transparent managers who act with integrity and who say what they mean and mean what they say.
Q? Can an employer withdraw a job offer on receipt of a poor reference?
A. Yes, provided that the job offer is conditional on receipt of satisfactory references, the employer can withdraw the offer if it receives a poor reference, without this amounting to a breach of contract.
Q? Can an employer contact an employee’s doctor directly for a medical report?
A. No. The employee’s consent must be obtained in writing prior to the letter being sent to the doctor and the employee given the opportunity of seeing the report before it is sent to the Company.
Q? If an employer failed to follow its procedures for employees on probation would a dismissed probationer have any redress?
A. If an employer dismisses an employee on probation for conduct reasons without following a contractually binding disciplinary procedure, the employer is at risk of a breach of contract claim for failing to follow its own procedure.
Q? Do restaurant tips count towards the National Minimum Wage for waiters and waitresses?
A. Using tips to make up staff pay to minimum wage levels was outlawed from October 2009.
Q? My employee wants to return to work part time after maternity leave. I want to tell her it’s not on. Can I?
A. Employers need to be incredibly careful when considering requests to work part time by mothers returning from maternity leave. They should now follow the procedure laid down by the Flexible Working Regulations to consider such a request and if rejecting, should make sure they have clear documentary evidence to substantiate any such decision.
Q? I don’t get on with one of my employees, although he does the job well enough. Can I dismiss him? A. Ordinarily dismissals arise from the employee’s misconduct or capability (performance / sickness absence), but there is also provision to dismiss fairly for ‘Some Other Substantial Reason’. It is always better to dismiss for objectively verifiable reasons. Therefore this type of problem will still have to be handled with extreme care.
Q? Can my employer discipline me for what I do in my own private time?
A. The short answer is that your employer may be able to discipline you for what you do in your private life; if those activities are incompatible with the position you hold or bring your employer into disrepute.
Q? If one of my employee’s leaves the Company of their own accord having been issued notice during a redundancy exercise, do they forfeit their redundancy pay?
A. No, however, they may forfeit part of the notice pay.
Q? Are employers obliged to give pay rises?
A. Ordinarily, there is no obligation on employers as such to give an annual pay-rise. In most employment contracts the employer will state that any pay rise will be in the employers absolute discretion.
Q? Must an employer always obtain an individual’s consent before providing a reference for him or her?
A. Providing a reference is likely to involve processing personal data under the Data Protection Act 1998. Therefore, the employer must satisfy one of the conditions required for processing data as set out in sch.2 to the Act. In relation to a reference, the most likely condition to apply is that the individual has consented to the data being processed. The Data protection employment practices code (PDF format, 465K) (on the Information Commissioner’s Office website) recommends that employers have a policy on giving references that includes a requirement that “all those giving corporate references must be satisfied that the worker wishes the reference to be provided”. It also recommends that, when an employee leaves the organisation, the employer should keep a record on file of whether or not the employee wishes the employer to provide references on him or her.
Q? Is an employer acting unlawfully if it tells a third party such as an employment agency that it would prefer to appoint a man for the job?
A. Instructing an employment agency or jobcentre to apply discriminatory practices is outlawed under the Equality Act 2010 and is unlawful irrespective of whether the instruction is subsequently carried out. Both the employer that gave the instruction and any employment agency that complied with it would be liable.
Q? Where a full-time position is advertised, is the employer required to consider an applicant who informs it at interview that she would like to work part time?
A. If a female job applicant who is suitable for the post intimates that she would like to work part time, or as part of a job-share arrangement, and if the reason for her request is that she cannot work full time, or would have difficulty doing so, on account of childcare responsibilities, then a refusal by the employer to appoint her on this basis may amount to unlawful indirect sex discrimination. Under s.19 of the Equality Act 2010, any “provision, criterion or practice” that is applied to job applicants (or current employees) and which puts women at a particular disadvantage when compared to men will be unlawful, unless the employer can show it to be “a proportionate means of achieving a legitimate aim”.
Q? Can an employer dismiss an employee in cases of long term sickness?
A. Can dismiss but only by following the capability procedure and by ensuring that medical opinion is obtained at every stage.
Q? I want to issue someone with a disciplinary warning – what do I do?
A. Talk them through disciplinary procedure, from written advice of meeting, right to be accompanied, process of meeting, adjournment if necessary, decision of what level of warning to issue and follow up letter with right to appeal.
Q? I want to make someone redundant – what do I do? A. Talk them through process of whether it is a genuine redundancy situation, the consultation period and purpose, selection criteria and its importance, calculation of redundancy payments and final confirmation of decision and follow up letter.