Author: Lawpack

by Nadine de Souza

The best way to ensure that there are no future disputes is to get your employment contract in writing. It’s the best way to safeguard against future disputes.

So what goes in an employment contract? The purpose of an employment contract is to set out the rights, responsibilities, duties and employment conditions. These are called the ‘terms’ of the contract.

Express terms

These are the terms that are agreed by the employer and employee. These may be written or oral, but it’s obviously preferable to put these terms in writing as if there is a dispute in the future it will be easier to prove what was agreed.

Even though in practice express, oral terms may be just as binding as written ones, they are very much more difficult to prove.

Implied terms

These terms are not stated expressly in the contract because:

• They are too obvious to be recorded.
• They are common practice within the particular business or industry and are precise, reasonable and well known.
• They are necessary to make the contract work.
• The parties to the contract have shown by their behaviour their acceptance of such terms.

A term is not implied simply because it would be reasonable to include it. There are terms which are accepted as commonly implied in employment contracts relating to the employer’s and the employee’s duties. The employer’s duties are:

• To pay wages.
• To co-operate with the employee and maintain mutual trust and confidence.
• To take reasonable care for the health and safety of the employee.
• To take reasonable steps to bring to the employee’s attention any contractual rights which are dependent on his taking action, but which the employee may be reasonably unaware of.
• To exercise pension rights in good faith.
• To deal reasonably and promptly with employees’ grievances.
• To give a reasonable period of notice of termination when no specific period of notice has been agreed.

The employee’s duties are:

• To work for the employer with due diligence and care.
• To co-operate with the employer, including obeying lawful orders and not impede the employer’s business.
• To follow a duty of fidelity, i.e. not compete with the employer and not disclose confidential information unless it’s in the public interest.
• To take reasonable care for their own safety and that of fellow employees.
• To give a reasonable period of notice of termination when no specific period of notice has been agreed.

Statutory terms

These are terms imposed by legislation which automatically apply to any contract.

It’s also possible for terms to be incorporated into a contract of employment from other sources, such as a staff handbook.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

This article has been adapted from Lawpack’s Employment Law Made Easy.

Work/life balance is very important these days and employees are looking at different ways of working. But it’s not just about work/life balance as business needs are also changing and customers want goods and services outside traditional business hours.

There are a number of ways in which your employees could ask to work flexibly: job sharing, working from home, working part time, compressed hours or flexitime. Any employee can ask to work flexibly, but they must have worked continuously for the same employer for 26 weeks.

Making a ‘statutory application’

The application must be in writing and must be:

• dated;
• say that they’re making the application under the statutory right to request a flexible working pattern;
• give details about how they want to work flexibly and when they want to start;
• explain how they think their flexible working will affect the business;
• say if and when they’ve made a previous application.

The employer’s obligation to consider a flexible working application

As an employer, you have a legal obligation to consider any flexible work request in a ‘reasonable manner’. ACAS has published a Code of Practice to inform customers on the procedure for dealing with such a request.

You must make a decision within three months of the request (or longer, if the employee agrees).

If you agree to the flexible working request, you should write to the employee outlining the agreed changes in working hours and the date when they will start working flexibly.

You should also give the employee a new employment contract. You can download a solicitor-approved employment contract from Lawpack.

Refusing a request

You can only refuse a request for flexible working if you have a clear business reason such as the:

• burden of additional costs;
• detrimental effect on the ability to meet customer demand;
• inability to re-organise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the work period proposed; and
• planned changes to the workforce.

Appeals

Employees no longer have a statutory right to appeal. But, as an employer, you are proving that you have handled the request in a ‘reasonable manner’ by offering an appeals process.

An employee can go to an employment tribunal -within three months of the request – if the employer:

• didn’t handle the request in a ‘reasonable manner’;
• wrongly treated the employee’s flexible working application as withdrawn;
• dismissed or treated an employee poorly because of their request (e.g. refused them a pay rise or promotion); or
• based its decision to reject the application on incorrect facts.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

As of 30 June changes to the procedure for flexible working requests will take place. All employees who have worked 26 weeks continuously for an employer will be able to ask if they can work flexibly. Previously only carers had the statutory right to make such a request.

But how do you prepare your company for this change in legislation. Read our top tips on how to handle the law change:

1. Remember that the old rules still apply

Any requests for flexible working made before 30 June still have to be processed under the old rules, so don’t throw out your old flexible working policy just yet.

2. Explain to your staff who is now eligible

All employees who have worked for you for 26 weeks continuously before the request can now ask to work flexibly, whether they are carers or not. They must not have made a similar application in the previous 12 months.

3. Inform your employees what they need to provide to make a request

In the current draft code of practice it states that employees must provide you with the following:

• The application date, the changes they want to their hours and when they want flexible working to take effect.
• What effect they think the requested change will have on the company and how it can be dealt with.
• A statement that it’s a statutory request and if and when they have made a previous application for flexible working.

Requests still need to be in writing. If you can, draft a flexible working application to give to your staff.

4. Decide on how long the company will take to process requests

Under the old rules employers had to meet strict deadlines on how quickly they had to hold a meeting with the employee making a request. With the new law change, you now don’t have a strict timetable to follow, but you must get back to the employee within three months. However, the old time limits do comply with the new rules, so you can keep this in place in your flexible working policy if it’s easier for you not to change it.

5. Allow employees to be accompanied at the flexible working meeting

Once you receive a written request it’s best to have a meeting with the member of staff to discuss it. But if you intend to approve the request, then you don’t have to hold a meeting. Under the new legislation you’re not obliged to let the employee be accompanied by a colleague at this meeting, but it’s still advisable to keep this in place.

6. Keep in mind the grounds on how you can turn down a request

These haven’t changed. You can only reject a request for one of the following business reasons:

• The burden of additional costs
• An inability to re-organise work amongst existing staff or to recruit additional staff
• A detrimental impact on quality or performance, or the ability to meet customer demand
• Insufficient work for the periods the employee proposes to work
• A planned structural change to your business

7. Still allow an appeal process

You now really don’t need to have an appeal process in place after 30 June, but it’s wise to still do so. An appeal stage for requests that are turned down helps you to ensure that you have dealt with the request in the “reasonable manner” required under the new legislation. All requests, including any appeals, must be considered and decided on within a period of three months from first receipt, unless you agree to extend this period with the employee. This extension period hasn’t been changed under the current legislation.

8. Inform your managers and employees of the law change

Your managers will need to know how to handle the new rules and your staff will need to know their new rights. It’s good for company relations for an employer to circulate communication on the changes.

by Nadine De Souza

Your employees are entitled to be paid while on holiday leave. Employees are entitled to a week’s pay for every week of statutory leave. That’s easy if your employees have normal hours, but what happens if they don’t? How much do you have to pay them? Have a look at our guide to find out all you need to know about holiday pay.

Employees with normal working hours

If an employee’s pay doesn’t vary according to the amount of work done, then a week’s pay is the amount due for a week’s work as set out in the employment contract. Guaranteed overtime is where the employer is obliged by contract to offer and pay for agreed overtime. Non-guaranteed overtime is where there is no obligation to offer overtime but if the employer does, then the employee is obliged by contract to work it. Voluntary overtime is where the employer asks the employee to work overtime and the employee is free to refuse. Guaranteed and non-guaranteed overtime payments should be taken into account when calculating holiday pay. However, there is currently no definitive case law that says voluntary overtime needs to be taken into account..

Employees with variable pay

This type of arrangement may occur under a piece work, bonus or commission scheme. A week’s pay is the normal weekly working hours multiplied by the employee’s average hourly rate over the preceding 12 weeks. To calculate the average hourly rate you can only take into account the hours when the employee was working. Overtime can be included but must be adjusted to the normal rate of pay.

Shift and rota workers

Their average weekly hours of work, in the preceding 12 weeks, are multiplied by their average hourly rate.

Employees with no normal hours

A week’s pay is the average pay received over the preceding 12 weeks (in which they were paid).

Calculating the average hourly rate

To calculate the average hourly rate, only the hours worked and the pay received can be counted. Take the average rate for the last 12 weeks. If there was no pay in a week, then count back a further week so that the rate is based on 12 weeks in which pay was paid.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

For more information on employment contracts or to download a legally valid, solicitor-approved employment contract see Lawpack’s Employment Contract.

by Nadine de Souza

In this article we discuss additional paternity leave, when it can be taken and who out of your employees is eligible to take it.

What is additional paternity leave?

Additional paternity leave (APL) is a right available to parents of a baby due on or after 3 April 2011 and to adoptive parents who were notified that they have been matched with a child on or after that date. APL introduces a way that a parent can take time off work to care for their child during its first year. It’s available to employees if their partner returns to work before the end of their maternity (adoption) leave.

How long is it for?

APL is for a maximum of 26 weeks.

Who is eligible?

To be eligible to take APL, the child’s mother/adopter must have been entitled to:

• Statutory maternity leave; or
• Statutory maternity pay (SMP); or
• Maternity allowance; or
• Statutory leave; or
• Statutory adoption pay (SAP);

And have returned to work.

When can APL be taken?

APL can be taken by the spouse/civil partner/partner between 20 weeks and one year after the employee’s child is born or placed for adoption.

How soon do you have to be informed by the employee that additional paternity leave is being taken?

At least 8 weeks before starting additional paternity leave the employee must give notice. This includes:

1. A written leave notice specifying the following:
   • The week when the child was due or the date they were notified of having been matched for adoption with the child;
   • The child’s date of birth or the date the child was placed for adoption; and
   • The employee’s chosen start and finish dates for their period of APL.
2. A signed employee declaration stating that:
   • The purpose of their APL will be to care for the child;
   • They are either the child’s father or are married to the partner or civil partner of the child’s mother; and
   • They have, or expect to have, the main responsibility (apart from that of the child’s mother) for bringing up the child or that they have been matched for adoption with the child.

   Plus

3. A written declaration from the child’s mother/adopter stating the following:
   • The mother’s/adopter’s name, address and National Insurance number;
   • The date on which they intend to return to work;
   • That the employee is either the child’s father or is their spouse, partner or civil partner and has, or expects to have, the main responsibility (apart from the child’s mother) for bringing up the child;
   • That to their knowledge the employee is the only person exercising the entitlement to APL in respect of the child; and
   • That she consents to the employer processing the information that she has provided in the declaration.

Is the employee entitled to benefits when on APL?

During APL, the employee is entitled to all benefits that they would have received had they not been on paternity leave, except wages and salary (but including benefits in kind). This means that the employment contract continues and the period on paternity leave counts towards the employee’s continuity of employment. Discover the world of gaming with Onlyplay and get ready for non-stop entertainment, innovative features, and thrilling gameplay that will keep you on the edge of your seat.

Is the employee eligible for paternity pay?

Additional statutory paternity pay (SPP) is paid at £138.18 per week or 90 per cent of the employee’s average weekly earnings (whichever is lower). It’s payable only during what would have been the employee’s spouse/partner/civil partner’s statutory maternity pay (SMP), maternity allowance or statutory adoption pay (SAP) period.

Can the employee be dismissed?

Employees are protected from detrimental treatment and dismissal for reasons connected with their rights to ordinary paternity leave (OPL) and APL.

Shared parental leave reforms

Shared parental leave is due to be introduced in December. It’s a new right that will allow eligible employees – who are mothers, fathers, partners and adopters – to choose how they share time off from work after their child is born or adopted. To take shared parental leave, the baby must be due to be born – or placed for adoption – on or after 5 April 2015.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Download our solicitor-approved Paternity Leave Policy to protect your business and comply with employment law.

by Nadine de Souza

For employers we outline when an employee is eligible for adoption leave and statutory adoption pay.

Eligibility for adoption leave

If your employee adopts a child, then they may be entitled to take adoption leave. Any employee who meets the following criteria can take 52 weeks’ adoption leave. This is made up of 26 weeks’ ordinary adoption leave and 26 weeks’ additional adoption leave. The employee must:

• Have been matched with a child by an adoption agency;
• Have at least 26 weeks’ continuous service by the week the employer is notified of the match;
• Be legally adopting the child;
• Have given proper notice to the employer of their intention to take leave;
• Have produced to their employer evidence of their entitlement to take adoption leave.

Adoption leave isn’t available where the child is already known to the adopters; for example, in step-family adoptions or adoptions by existing foster carers.

If a couple are jointly adopting a child, only one partner will be able to take adoption leave. The employee must give to their employer a document issued by the matching adoption agency stating:

• The name and address of the agency;
• The name and address of the employee;
• The date on which the employee was first notified of the match; and
• The date on which the agency expects to place the child.

Notification of taking adoption leave

The employee must give notice of their intention to take adoption leave within seven days of having been notified of a match, unless this isn’t reasonably practicable. The notice must specify:

• The expected date of placement;
• The date on which the leave will commence.

The employer can request that this notice be given in writing. Once the employer has received the notice, it must respond within 28 days to the employee setting out in writing the date the employee’s adoption leave will end.

The leave can start 14 days before the child starts living with the employee (for UK adoptions) or when the child arrives in the UK or within 28 days of this date (overseas adoptions).

During ordinary adoption leave, the employee is entitled to all the benefits that they would have received if they hadn’t been on adoption leave, apart from wages and salary. This means that the contract of employment continues and the period of ordinary adoption leave counts towards the employee’s continuity of employment.

An employee returning to work after adoption leave normally has the right to return to the same job.

Statutory adoption pay

Statutory adoption pay (SAP) is a payment that employers must make to eligible employees.

An employee qualifies for SAP if:

• They have stopped work because of adoption leave;
• They have 26 weeks’ continuous employment with the same employer by the date they have been notified of the match;
• They are a person with whom a child is, or is expected to be, placed for adoption;
• They have normal weekly earnings of above the lower earnings limit for the payment of National Insurance contributions currently £111;
• They have not elected to receive statutory paternity pay.

The employee is entitled to SAP for 39 weeks, currently at the standard rate of £138.18 per week (or 90 per cent of their gross average weekly earnings).

SAP is subject to Income Tax, National Insurance contributions and any other regular deductions and should be paid by the same method and at the same time as the employee would normally be paid. If there is no normal agreement as to which day wages are paid, payment should be made on the last day of the calendar month. The employee may also have a contractual right to adoption rights which the employer may offset against SAP.

To make a claim for SAP, the employee simply gives his employer 28 days’ notice of the date from which they expect SAP will be paid, unless this isn’t reasonably practicable. The employer has to write within seven days confirming that they’re eligible for SAP, how much they’ll get and when it will start and end.

An employee has to give you proof of adoption to receive SAP. The proof must show:

• The name and address of the agency;
• Date the child was matched (e.g. the matching certificate);
• The date of the placement (e.g. a letter from the agency);
• The relevant UK authority’s official notification confirming that the parent is allowed to adopt (overseas adoptions only);
• The date that the child arrived in the country (e.g. plane ticket).

Where an employee who is entitled to receive SAP leaves their employment before the adoption pay period has begun, they will still be eligible to receive SAP. SAP payments will commence on the date of the child’s placement or, if the termination of employment occurs on or within 14 days before the expected date of placement, on the day immediately following the last day of their employment.

You can offer more than the statutory amount of SAP, but make sure that your policies are clear and accessible to all staff.

Shared parental leave reforms

Shared parental leave is due to be introduced in December. It’s a new right that will allow eligible employees – who are mothers, fathers, partners and adopters – to choose how they share time off from work after their child is born or adopted. To take shared parental leave, the baby must be due to be born – or placed for adoption – on or after 5 April 2015.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Download our solicitor-approved Adoption Leave Policy to protect your business and comply with employment law.

All employees who are expecting a baby have the right to take both six months’ ordinary maternity leave and six months’ additional maternity leave (i.e. 12 months’ in total) regardless of their length of service. These employees usually have the right to return to the same job. The right to maternity leave applies to a woman who gives birth to a living child or has a stillbirth after 24 weeks of pregnancy.

When maternity leave starts

Maternity leave will start on the date that your employee tells you she wants to start her leave, but maternity leave can’t start more than 11 weeks before the baby is due. However, maternity leave can begin earlier than the date the employee chooses if she is absent from work for a reason that is wholly or partly to do with her pregnancy.

It’s a criminal offence for an employer to let a woman work within two weeks of childbirth so women must have these two weeks off. Women can, however, choose to work for up to ten days during their maternity leave without ending their leave.

Giving notice

An employee can only take maternity leave if she gives you, the employer, the correct notice. She has to inform you that she is pregnant; the expected week her baby is due and the date she wants her leave to begin. She has to give you this information at least 15 weeks before the baby is due. Once you receive this notification you should write to the employee within 28 days setting out the date on which the employee’s full entitlement to maternity leave will start and end. Employees can change their return to work date as long as they give eight weeks’ notice.

An employee’s rights during leave

During maternity leave an employee is entitled to all the benefits that she would have received had she not been on maternity leave, except wages and salary. An employee’s employment rights, such as right to pay, holiday and returning to a job are protected during maternity leave.

An employee returning after maternity leave normally has the right to return to the same job that she left. If the job she left was full-time and she would prefer to work in a more flexible pattern, she may request flexible working. If the employee wants to return to work before the end of her maternity leave, she must give you at least eight weeks’ notice of the date she intends to return to work.

If you refuse to allow a woman to return from maternity leave, she will be entitled to claim unfair dismissal.

Statutory maternity pay

Statutory maternity pay (SMP) is a payment that you have to make to eligible employees, even if the employee doesn’t intend to return to work after the child is born.

An employee only qualifies for SMP if:

• She has stopped work wholly or partly because of pregnancy or childbirth;
• She has 26 weeks’ continuous employment with the same employer up to the qualifying week which is the 15th week before the expected week of childbirth;
• Her normal weekly earnings in the eight weeks before the start of the 14th week before the expected week of childbirth were at least £111 gross;
• She has reached the start of the 11th week before the expected week of childbirth.

The employee is entitled to SMP for 39 weeks. For the first six weeks, this is at 90 per cent of her normal weekly earnings before tax. For the rest of the maternity pay period, a flat rate of £138.18 (or 90 per cent of average weekly earnings if this is less than £138.18). SMP is subject to Income Tax, National Insurance contributions and any other regular deductions and should be paid by the same method and at the same time as the employee would usually be paid

You must get proof of the pregnancy before you pay SMP. This can be a doctor’s letter or form MAT1B which is usually issued by midwives or doctors at 20 weeks of pregnancy. The employee must give you proof within 21 days of the SMP start date. Employees must give you 28 days’ notice that they want to start SMP. You then need to confirm that they are eligible, how much they’ll get and when the pay will start and stop.

You can offer more maternity pay than SMP, but you must ensure that the maternity scheme is clear and easily accessible to staff.

You may be able to recover statutory maternity payments from HMRC. Your payroll software can usually tell you how much you can get back.

Shared parental leave reforms

Shared parental leave is due to be introduced in December. It’s a new right that will allow eligible employees – who are mothers, fathers, partners and adopters – to choose how they share time off from work after their child is born or adopted. To take shared parental leave, the baby must be due to be born – or placed for adoption – on or after 5 April 2015.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Download our solicitor-approved Maternity Leave Policy to protect your business and comply with employment law.

by Nadine de Souza

In this article we discuss ordinary paternity leave, when it can be taken and who out of your employees is eligible to take it.

What criteria does an employee have to meet to qualify for ordinary paternity leave?

To qualify for ordinary paternity leave (OPL) an employee must meet the following criteria:

• Have at least 26 weeks’ continuous service by the beginning of the 14th week before the expected week of childbirth;
• Give the correct notice period;
• Have a relationship with the child;
• Be the biological father of the child;
• Be married to or have an enduring relationship with the child’s mother; or
• Be adopting a child.

What notice does the employee have to give me, as their employer?

An employee wishing to take OPL must give the required notice at least 15 weeks before the baby is expected. They must tell you the expected week of childbirth; the period of leave to be taken (which may be in one block of either one or two weeks) and the date the leave will start (this can be changed with 28 days’ notice). OPL must be taken within 56 days of the expected week of childbirth, or due date if the baby is born early. Eligible employees can choose to take either one week or two consecutive weeks’ paternity leave (not odd days).

Does an employee still have employment rights during paternity leave?

During OPL, the employee is entitled to all benefits that they would have received had they not been on paternity leave, except wages and salary (but including benefits in kind). This means that the contract of employment continues and the period on paternity leave counts towards their continuity of employment. An employee’s employment rights (holiday, pay and return to work) are protected during paternity leave.

An employee returning after paternity leave has the right to return to the same job. The employee also has the right not to be subjected to any detrimental dismissal because they took or sought to take paternity leave and any such dismissal will be automatically unfair. Please note that the same exemption for small companies applies in relation to adoption leave.

Are my employees entitled to paternity pay?

Statutory paternity pay (SPP) is a payment that you’re required to make to eligible employees, even if the employees don’t intend to work after the child is born. Employees must request statutory paternity pay at least 28 days before they want it to start. Employees can use form SC3 to do this. You should take a copy and return it to them.

An employee qualifies for SPP (currently at the rate of £138.18 per week or 90 per cent of their average weekly earnings, if lower) if:

• They have a right to take paternity leave;
• They have normal weekly earnings that are at least £111 gross in an eight-week relevant period;
• They give at least 28 days’ notice (unless this isn’t reasonably practicable) of the date from which they expect SPP to be paid; and
• They have completed a self-declaration that they are entitled to receive SPP.

Employees still qualify for paternity pay if the baby is either:

• Stillborn from 24 weeks of pregnancy;
• Born alive at any point in the pregnancy but later dies.

You may be able to recover statutory paternity pay from HMRC. Your payroll software should be able to tell you how much you can recover.

What happens if my employee is adopting a child?

To qualify for paternity leave an employee adopting a child must:

• Have worked for you continuously for at least 26 weeks by the end of the week that they were matched with a child (for UK adoptions);
• Have worked for you continuously for at least 26 weeks by either the date the child arrives in the UK or when they want their pay to start (overseas adoptions);
• Confirm in writing that their partner is receiving statutory adoption pay by giving you a copy of their partner’s SC6 form;
• Meet the other eligibility criteria for paternity leave and pay mentioned earlier in this article.

An employee adopting a child must give you a copy of their form SC4 for:

• Leave – no later than seven days of their co-adopter or partner being matched with a child;
• Pay – 28 days before they want their pay to start.

For overseas adoptions the notice period is different. It’s explained on form SC5.

An employee adopting can start their leave on the date of the placement; an agreed number of days after the date of the placement; on the date the child arrives in the UK or an agreed number of days after this (overseas adoption).

Leave must be taken within 56 days of the date of the placement or the child’s arrival in the UK (overseas adoption).

Employees must give you proof of adoption to qualify for paternity pay. This can be their matching certificate or a letter from the adoption agency.

Shared parental leave reforms

Shared parental leave is due to be introduced in December. It’s a new right that will allow eligible employees – who are mothers, fathers, partners and adopters – to choose how they share time off from work after their child is born or adopted. To take shared parental leave, the baby must be due to be born – or placed for adoption – on or after 5 April 2015.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Download our solicitor-approved Paternity Leave Policy to protect your business and comply with employment law.