FAQs about Employment Law

EMPLOYMENT LAW FOR EMPLOYERS – DUDLEY

Recruitment law

The legal obligations start with the moment you take on new staff. The law states that the person must have the right to work in the United Kingdom; otherwise it is a criminal offence. The prospective employee must provide original documentation, both passport and full birth certificate or National Insurance card. It is the employer’s responsibility to ensure that the candidate is the lawful owner of the documents and that each of them are copied.

Moreover, the law demands that recruiting practices do not discriminate on grounds of race, disability, gender or marital status.

It is compulsory for the employer to provide within the first two months basic terms of employment.

The contract should be signed and dated by both the employer and employee. It should detail:

•             The full names and addresses of the parties involved.

•             Start date.

•             Job title/description.

•             Pay, including holiday entitlement and sick pay.

•             Place of work.

•             Hours of employment.

•             Disciplinary, grievance and appeal procedures.

•             Pension information.

•             Notice periods.

•             Any collective agreements.

•             Duration of contract if not permanent.

•             Whether the employee is expected to work outside the UK for more than a month (and, if so, under what terms).

Recent changes to employment law on health questions allowed in recruitment process

Care now needs to be taken about questions and enquiries made about a possible employees health in the recruitment process. The Equality Act has limited the legitimate questions, subject to certain exceptions, as follows :-

  • Where the questions relate to ensuring an applicant is fit to take a legitimate test for suitability for a job.
  • Where the questions are with a view to making reasonable adjustments to the recruitment process in order to properly deal with health issues.
  • For monitoring diversity in the workplace.
  • Where a disabled person is specifically sought for a particular role.
  • The job requires certain physical attributes such as lifting or manual work.

What conditions does a pregnant employee need to fulfil in order to be entitled to Statutory Maternity Pay (SMP)?

There are 6 conditions that need to be satisfied, as follows : -

  • to have worked for the employer for a continuous period of 26 weeks ending with the qualifying week – i.e. the 15th week before the expected week of childbirth (EWC)
  • to have reached, or been confined before reaching, the start of the 11th week before the EWC
  • to have stopped working for the employer
  • to have average weekly earnings in the 8 weeks up to and including the qualifying week at least equal to the lower earnings limit for Class 1 National Insurance contributions
  • to have given 28 days’ notice to the employer of the date when she expects liability to pay SMP will begin or, if not reasonably practicable, such lesser notice as was reasonably practicable
  • to have produced medical evidence of her pregnancy and of the Expected Week of Childbirth (EWC).

When is the earliest date an employee can start maternity leave ?

Maternity leave can be started up to 11 weeks before the due date. At least 3 weeks notice is required unless it’s not “reasonably practicable” to do so. If the baby is born before the agreed leave begins, it will start automatically that day.

What is statutory paternity leave ?

Paternity leave is paid or unpaid time off work to care for a child or make arrangements for a child’s welfare. This leave is separate from usual holiday allowance. Most employees whose wife or partner has given birth, or who have adopted a child, are legally entitled to take 1 or 2 weeks’ paid paternity leave.

Who qualifies for paternity leave?

Aside from the employee showing if necessary, the appropriate legal/biological relationship with the baby, the employee must have worked for your employer for at least 26 weeks by the end of the 15th week before the baby is due.

What is parental leave ?

Parental leave provides the right for parents to take time off to care for a young child or a child with a disability or to make arrangements for their welfare.

What are the qualifying criteria for parental leave?

Any parent who has completed 1 year’s service with their current employer is entitled to 13 weeks’ unpaid parental leave for each child born or adopted. It may be taken at any time up to the child’s 5th birthday. Parents of disabled children can take up to 18 weeks unpaid leave up to the child’s 18th birthday. Employees remain employed while on parental leave and the terms of their contract, such as contractual notice, still apply.

At the end of parental leave, employees have the right to return to the same job as before or, if that is not practicable, a similar job which has the same or better status as the old job. If the leave is taken for a period of 4 weeks or less, the employee is entitled to return to the same job.

What if an employee asks for emergency time off due to a family illness ?

All employees have the right to take a reasonable period off work to deal with an emergency problem involving a dependent such as a child, partner or parent. There is no set time allowed for this, although your employee handbook may state some guidelines.

Long Term Ill Health

Dealing with long term ill health is very different to dealing with short term persistent absenteeism.

What should an employer deal with long term absence ?

  • Keep in touch with the employee.
  • If their condition improves consider if they can return to work.
  • If they can return, consider offering them suitable alternative employment.
  • Ask for information from the employee’s doctor (although be very careful that this is done through the employee who may or may not co-operate) and take into account what the medical practitioner says.
  • Subject to employee co-operation, consider obtaining a medical opinion from an Occupational Health Consultant.

Can an employee be dismissed for long term absenteeism?

This can be legitimate legally on the grounds of incapability to do his or her job but it is crucial to deal with such a situation in the correct way, failing which a Tribunal claim may be brought and these types of claim can be very expensive. In considering any dismissal the employer must adopt a fair procedure in all the circumstances.

What steps might constitute a fair procedure before dismissal for long term sickness absence ?

  • Check your company’s employment contracts, staff handbook and any policies & procedures and comply with them
  • Check how similar situations may have been dealt with in the past and act consistently
  • Document everything
  • Consult with the employee
  • Take steps to obtain the employee’s consent to assess his or her medical position
  • Assess whether the employee may be classified as disabled under the Disability discrimination Act
  • Consider the employee’s opinion
  • Consider the possibility of offering alternative employment

If an employee has any physical or mental impairment which has or is likely to last for a long period of time, and has substantial or long term effects on their ability to carry out their normal day to day activities the employee may be considered disabled for the purpose of the Disability Discrimination Act, and this should also be taken into account. If ignored, it can give rise to further claims.

What now ?