What to do when your employees are off sick

Lawpack on March 27, 2020

It’s inevitable that at some point your employees will be ill. Ailments range from the common cold to serious illnesses. So, what do you, as their employer, have to do? What rights do your employees have?

Off sick for up to seven days

If your employee is off sick for up to seven days, you can ask them to fill in a form to confirm their illness. This is called ‘self-certification’ and you can provide your own version of this form.

Sick for longer than seven days

After seven days off work sick your employee will need a fit note from their GP or hospital doctor. The fit note says that the employee ‘may be fit for work’ or ‘not fit for work’. If it says that the employee ‘may be fit for work’, then you need to discuss the situation with them. You should consider whether there are any changes that could help the employee return to work.

Off sick for over a month

If your employee is off work for more than four weeks, then they are considered as long-term sick. It’s possible to dismiss an employee who is long-term sick. This is only after you have considered whether the employee can return to work with some adjustments, such as working part time. You must also consult your employee about returning to work should their health improve. Your employee will be able to take you to an employment tribunal if you unfairly dismiss them.

Holiday pay during sick leave

Holiday is still built up while your employee is on sick leave, no matter how long they are off for. Your employee can choose to use their holiday entitlement instead of sick leave, usually because they don’t qualify for sick pay. Any holiday entitlement that isn’t used because of sickness can be carried over to the following year. If your employee is sick before or during that holiday leave, then they can take it as sick leave and take the leave another time.

Disability

If your employee becomes disabled as a result of their illness, then you are expected to make ‘reasonable adjustments’ to accommodate their return to work. These could be things like working shorter hours or adapting equipment that your employee uses.

Sick pay

Your employee may be entitled to Statutory Sick Pay (SSP). To qualify your employee must have an employment contract; be off sick for four consecutive days (including non-working days); earn at least £118 per week; give you the correct notice; and give you proof of their illness after seven days. You can set your own notice period and your employee must tell you about their illness within this time limit. If you have no set notice period, then it will be seven days.

For 2019/2020 the rate of SSP is £94.25 per week for 28 weeks. You can offer more if you have a company sick pay scheme.

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How to terminate an employment contract

Lawpack on March 27, 2020

When you want to dismiss an employee and terminate their employment, you must give them the proper notice period. This should be outlined in their employment contract, which you should have given to them when you first hired them.

You may also have outlined your company’s staff dismissal policy at the start of their employment if you gave them a Dismissal and Disciplinary Procedure when they joined the company.

But if a notice period hasn’t been expressly agreed should dismissal occur, then you can terminate employment upon ‘reasonable’ notice. What is reasonable depends on factors such as the employee’s seniority, age, length of service, remuneration, and what is usual in their profession or industry.

Whatever has been stated in their employment contract, the notice period mustn’t be less than the statutory minimum notice period.

The statutory minimum notice period

  • Employee’s length of service is less than 1 month – No notice period
  • Employee’s length of service is 1 month to 2 years – 1 week
  • Employee’s length of service is 2 to 3 years – 2 weeks
  • Plus an additional week for each year of continuous employment to a maximum of 12 weeks

If you terminate their employment without proper notice, then your employee does have a claim for wrongful dismissal (see below for further details).

If you’ve given them proper notice, they will have no claim for compensation. But they may still have a valid claim for unfair dismissal, even if the proper notice period is given.

Instant dismissal

When an employer terminates an employee’s employment contract, they often want the employee to stop working immediately. They may want instant dismissal to take affect, as they may be worried that the staff member may not continue to work effectively or they may be disruptive in the workplace. If this is the situation in your case, it’s usual for you to pay them a sum in lieu of notice or as compensation for failure to give notice.

Sometimes the employment contract will expressly state that you can terminate employment on payment of a sum in lieu of notice. In this instance, when the payment is made, tax and National Insurance deductions should be made in the usual way.

If there is nothing in the employment contract relating to making payments in lieu, the payment may be paid tax-free, up to a limit of £30,000 and without deduction of National Insurance contributions. It’s not always entirely clear whether the payment is tax-free, so it’s worth seeking advice on this point.

If a payment in lieu of notice is made, it’s not only the employee’s salary, but also all of their benefits, such as a company car, that must be included in the calculation. The exception to this would be if their employment contract stated that pay in lieu of notice didn’t include benefits.

Wrongful dismissal

If you dismiss your employee without giving the proper notice period and without pay in lieu of notice, then they’re entitled to claim damages for their notice pay and benefits; and this claim is known as ‘wrongful dismissal’. The exception to this is if the employee is guilty of gross misconduct, in which case you would be justified in the dismissal taking immediate effect. What constitutes gross misconduct does depend upon the work environment. Examples of gross misconduct are theft, damage to your property, physical assault and gross insubordination, or the employee not being able to work as they’re under the influence of alcohol or illegal drugs, or they have misused the email and internet.

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How to enable employees to work beyond 48 hours per week

Lawpack on March 27, 2020

Some jobs are just too demanding for the normal 48-hour working week rules to apply, making it necessary for employers to ask their workers to waive this restriction through a 48 hour opt out agreement.

Under government legislation, workers over the age of 18 cannot be told to work more than 48 hours per week, which can be averaged over a 17-week period in a system designed to protect people from over working.

However, there are instances where the necessity to work beyond these hours is paramount, particularly in emergency situations or during busier periods in the year when demand is exceptionally high.

Rather than being unable to meet these demands, employers can request their employees sign a 48 hour opt out agreement, but the decision to do this is at the employee’s discretion and it is illegal to force them to waive this right.

Applying the 48 hour rule

Workers can legally put in more than 48 hours in a week so long as the average over the 17 week duration remains at 48 hours or less.

Before getting an employee to sign a 48 hour opt out agreement, it is first worth noting whether you are already operating under circumstances where the law is not applicable.

For instance, the limit does not apply to jobs in the emergency services, armed forces and in some instances, the police. Domestic help in a private home might also be exempt from this rule, as well as those in sea faring roles such as fisher men and vessel crews.

So if these exemptions do not apply to the role your employee is in, then the only way to legally allow them to work for more than 48 hours in seven days is to have them sign the 48 hour opt out agreement.

Getting your employee’s permission

Just as it is the employee’s decision to sign the waiver, it is also their prerogative to cancel the opt out agreement whenever they choose, though they must give you a minimum notice period of seven days before they can reduce their hours.

It is also possible to agree a longer cancellation period with the employee before they sign the opt out agreement so that they are required to give you up to three months’ notice.

Defining working hours

Of course, the definition of work extends beyond the main duties of the role to other areas which come under the 48-hour restriction.

These include job-related travel, training and working lunches, as well as paid and some unpaid overtime.

The duration can also extend to work conducted abroad by the employee and always entails on-call hours the employee puts in.

Instances that are not covered under the 48-hour restrictions are lunch breaks unrelated to the job, normal travel to and from work and general travel outside of normal working hours.

A candidate pursuing evening and day-release classes not related to work cannot put these into their working hours either, nor can the time they spend on-call outside of the workplace.

If an employee volunteers to work for longer, such as to complete an ongoing project, this will not count towards the 48 hour quota and neither will paid or unpaid holiday.

Young workers

Restrictions on employers of people under the age of 18 are tighter so it is worth pointing out there is no opt out option for younger workers.

They are generally only allowed to work eight hours per day, completing no more than 40 hours in one week.

Getting it in writing

For more information on getting a 48-hour opt out in writing and to download a template, please see Lawpack’s solicitor approved Working Time Regulations 48-Hour Opt Out Agreement. ADNFCR-1645-ID-801325422-ADNFCR

 

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Questions you can’t ask in a job interview and why

Lawpack on March 27, 2020

It may seem like innocent small talk to ask someone whether they have children, or how old they are, but employers need to be very careful when interviewing job applicants as these seemingly innocent questions would be illegal.

There are certain dos and don’ts to remember when interviewing:

  • Do process all the applications in the same way.
  • Do only ask questions at the interview that are relevant to the job.
  • Do make sure all employees who come into contact with job applicants are trained about how to avoid discrimination.
  • Don’t keep separate lists of male and female or married and single applicants.
  • Don’t make jokes at the interview that are sexist or racist or otherwise biased.

Questions you should avoid asking at a job interview

You shouldn’t ask questions about personal circumstances, such as marital status, children, domestic obligations, marriage plans or family intentions.

You also can’t ask a job applicant about their trade union membership. You can’t use someone’s membership as a reason not to employ them and, equally, you can’t force someone to join a trade union as a condition of their employment.

It’s not permitted to ask about criminal convictions if they are ‘spent’. In this case you should treat the conviction as if it never happened and you can’t use it as a reason not to employ someone. Some employers are exempt from this requirement (e.g. schools).

Examples of questions you should never ask in a job interview

How old are you?

Where were you born?

Are you married?

Do you have children?

Do you plan to have children?

Have you got a disability or chronic illness?

What’s your main language?

Are you a UK citizen?

What religion are you?

How much longer do you want to work before you retire?

What are your long-term career goals?

Have you ever been arrested?

We’ve always had a man doing this job, so how do you think you’ll cope?

Questions you can ask at interview

You can ask about health, provided that it’s to do with a requirement of the job that can’t be dealt with by making reasonable adjustments. You can also ask about health to find out if someone needs help to take part in an interview or selection test.

You can ask if someone is disabled if you are using positive discrimination to recruit a disabled person.

If you want more in-depth expert information – from an employment lawyer – on how to hire someone correctly, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

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The contractual rights of employees

Lawpack on March 27, 2020

When you hire someone, obviously you will express the major terms of their employment to them either orally or in writing. Of course, it’s preferable to detail their terms of employment in an employment contract in order to minimise future disputes; although oral terms may be just as binding as written ones, they are very much more difficult to prove.

But as well as these expressed terms, employment contracts also have what is known as ‘implied terms’ giving the employee contractual rights.

Why are implied terms not stated in the employment contract?

  • 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 employment contract work
  • The parties to the employment contract have shown by their behaviour their acceptance of such terms of employment

What are common implied terms?

Your duties as an employer:

  • 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 them 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

Employee’s duties:

  • To work for the employer with due diligence and care
  • To co-operate with the employer, including obeying lawful orders, and maintaining trust and confidence and not impeding the employer’s business
  • To follow a duty of fidelity, i.e. not compete with the employer and not disclose confidential information, unless 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

In addition to these implied terms, contract terms may be implied into an employment contract by legislation, for example, equality clauses which are implied by the Equal Pay Act 1970; these terms of employment automatically apply to any employment contract.

Contract terms may also be incorporated into an employment contract from other sources. Prime examples are terms of employment which may be implied into an individual contract through collective agreements and work rules or staff handbooks.

Are there any contract terms that are unenforceable?

  1. Unlawful terms of employment or terms contrary to public policy. For example, an employment contract which has the effect of being a fraud on HM Revenue & Customs or an employment contract under which a foreign employee works illegally without a work permit.
  2. Contract terms purporting to waive an employee’s statutory rights.
  3. Discriminatory terms of employment. For example, on the grounds of sex, race or disability.
  4. Contract terms in restraint of trade if the main purpose is to restrain competition. Such terms of employment are enforceable, however, if their main purpose is to protect something in which you, as the employer, have a legitimate business interest worthy of protection. For any such contract clause to be enforceable it needs to be carefully drafted, taking into account the nature of the employee’s work. If the contract clause is too wide, it will be void.
  5. Terms of employment which purport to exclude or restrict liability for death or personal injury resulting from negligence. In the case of loss or damage other than death or personal injury, a contract term may only exclude or restrict liability for negligence if it satisfies the requirement of reasonableness (Unfair Contract Terms Act 1977)

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Contract types and employer responsibilities

Lawpack on March 27, 2020

When employing staff the tax and employer responsibilities will depend on the type of contract they have and what their employment status is. So it’s a good idea to find out about different types of employment contracts. Read our guide below before you make your mind up.

Full-time/part-time employment contract for an indefinite period

The majority of employment contracts are for an indefinite period. They end by either party giving notice and the period of notice is usually specified in the employment contract but if not, there is an implied term that the contract may be ended by reasonable notice taking into account the ability of the employee, remuneration of the employee and what is usual in the trade.

The contractual notice period must not be less than the statutory minimum period of notice, but if the contractual notice is longer, then the longer period must be given.

As an employer you must give full-time and part-time employees the following:

  • A written statement of employment or contract.
  • The statutory minimum level of holiday.
  • A pay slip showing all deductions.
  • The statutory minimum level of rest breaks.
  • Statutory sick pay and maternity, paternity and adoption pay and leave.

You must also make sure of the following:

  • That these employees don’t work longer than the maximum allowed by law;
  • Ensure that you pay the minimum wage;
  • Have employer’s liability insurance;
  • Register with HMRC; and
  • Consider flexible working requests.

Part-time workers have a right not to be treated less favourably than full-time workers.

Fixed-term employment contracts

A fixed-term contract is one that has a definite end. Fixed-term contracts may provide that a notice to terminate the employment earlier than the original termination date can be given; if there is no notice provision, employment is guaranteed for the full period.

Fixed-term employees are entitled to the same rights as permanent employees. However, if the contract is for less than three months, the employee isn’t entitled to statutory sick pay or medical suspension pay.

Nanny employment contracts

When a nanny or domestic help is employed directly by a family, the family, as their employer, will have legal obligations. Nannies have basically the same statutory rights as all other employees. But there are some rights that they don’t have because their employer is exempt as a small employer.

Nannies have:

  • No right to the National Minimum Wage, if they are living with the family;
  • No right to a stakeholder pension;
  • No rights against discrimination on the grounds of disability;
  • No automatically unfair dismissal rights if the dismissal is due to pregnancy or giving birth (but the nanny will still have the right to claim unfair dismissal, it just won’t be automatically unfair).

As an employer you must:

  • Deduct the correct amount of PAYE from your nanny’s pay;
  • Work out what  National Insurance contributions you and your nanny have to pay;
  • Keep a record of your nanny’s pay, tax and National Insurance contributions; and
  • Pay the total tax and National Insurance contributions to HMRC.

There are organisations that carry out payroll services for families employing nannies. This is a good way to make sure that your legal obligations as an employer are met.

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.

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Statutory employee rights: Part 1

Lawpack on March 27, 2020

When your employees enter into an employment contract with you, they automatically become entitled to statutory rights (i.e. rights laid down by employment law) without any need for the
details of these rights to be written into the employment.  

A number of these statutory rights do depend upon the employee attaining a qualifying period of employment with your firm.

Here’s a summary of the statutory rights of employees so you can comply with employment law:

Employee Statutory Right #1: Non-discrimination 

You must not discriminate employees on the grounds of sex, sexual orientation, race, marital status, disability, membership or non-membership of a trade union, religion or religious belief and age.

Employee Statutory Right #2: Itemised pay statements

You must issue an itemised pay statement to all employees at the time of payment. Contents must include:

  • Gross earnings
  • Net pay
  • Fixed and variable deductions from gross earnings
  • The amount and method of payment (if the net pay is paid in different ways)

Employee Statutory Right #3: Equal pay for like work, or work rated as equivalent, or work of equal value

Employee Statutory Right #4: Maternity and adoption rights, and benefits

Female employees who are expecting a baby are entitled to time off for antenatal care, protection from dismissal and detrimental treatment, suspension from work on maternity grounds, the right to take maternity leave and return to work and statutory maternity pay (SMP). Employees (male or female) who adopt a child also have protection from dismissal and detrimental treatment, the right to take adoption leave and return to work and statutory adoption pay (SAP).

See our Maternity, Paternity, Adoption & Parental Leave Policy.

Employee Statutory Right #5: Notice of termination of employment

The minimum notice periods for terminating employment are as follows:

By you:

Length of service Minimum notice period
Less than 1 month Nil
1 month-2 years 1 week
2-3 years 2 weeks

and an additional week for each year of continuous employment to a maximum of 12 weeks.

By the employee: 1 week

Your employment contract can impose a duty to give a longer period of notice.

Employee Statutory Right #6: Guarantee pay

You must make ‘guarantee’ payments’ to employees with at least one month’s service, when they could normally expect to work, but when no work is available. Periods when employees are laid off because there is no work available must be agreed in advance, to avoid you being in breach of contract.

An employee is entitled to a maximum guarantee payment per day for up to five days in any period of three months where they are laid off. Therefore, there is an annual maximum.

Employee Statutory Right #7: Redundancy pay

Employees in a redundancy situation are entitled to a statutory redundancy payment if they have at least two years’ service. The calculation is made by considering the employee’s age, length of continuous service and gross average weekly wage.

Find out more about calculating redundancy pay with our Employment Law Made Easy Guide.

Employee Statutory Right #8: Healthy and safe working environment 

You must provide your employees ‘so far as is reasonably practicable’ with a safe place to work and access to the place of work, a safe system of work, adequate materials, competent fellow employees and protection from unnecessary risk of injury. If you employ more than five employees at any one time, you must prepare and bring to the notice of your employees a written statement of the firm’s health and safety policy.

Find out more on meeting the health and safety guidelines in the workplace with our Health & Safety Legal Guide.

The Working Time Regulations provide for an average 48-hour working week; minimum breaks and 11 consecutive hours rest in any 24-hour period; 5.6 weeks’ paid holiday and an average 8 hours work in 24 hours for night workers. This means that employees are prevented from working any overtime that would result in their average working week exceeding 48 hours. However, the Regulations enable individual employees to ‘opt out’ and work in excess of this 48-hour limit; any Working Time Regulations Opt Out Agreement must be in writing.

Employee Statutory Right #9: Sickness benefit

Subject to satisfying certain conditions, all employees are entitled to receive statutory sick pay (SSP) when they are absent from work for four or more consecutive days, up to a limit of 28 weeks. Unless the employee has a contractual right to normal pay, statutory sick pay is all you’re obliged to pay employees during sickness.

Find out more about calculating statutory sick pay with our Employment Law Made Easy Guide.

Employee Statutory Right #10: Remuneration on suspension on medical grounds

An employee is entitled to be paid for up to 26 weeks if they are suspended on medical grounds in compliance with any regulation or law which concerns the health and safety of workers. An employee is only entitled to claim a medical suspension payment if they have been continuously employed for a period of one month. An employee employed for a fixed term of three months or less, or under a specific task contract which isn’t expected to last for more than three months, isn’t entitled to a medical suspension payment.

Read more on employee statutory rights #11-19 with our article The Statutory Rights of Employees: Part 2.

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