HR TIPS to student

8/7/2019 HR TIPS to student

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Employing Staff [16],Managing People [26],Training for SMEs [2], Retirement and Pensions [2],Temporary Staff [7], Employment Policies [4], Employment Rights [32]

Q & A Experts

Q : I am starting a small construction firm with about five employees. As the employer, do I haveto supply transport for employees to get to the work place?

Q: Do staff accrue holidays whilst on long term sick?

Q: One of my employees keeps taking time off for 'stress'. I am sceptical about this but amworried that she will take legal action if I challenge her. How can I handle this situation?

Q: I want to discipline an employee whose work is falling well below standard. What is the bestway of doing this?

Q: Our staff work for 3 hours at 5.45 per hour in the morning, and then go on home-based call-out, staying within a 20 minimum radius of their home, for the next 21 hrs. For this they receive15.00. They then start their next three hour shift. Is this legal?

Q: I am starting up a hairdressing business and would like to know how to work out how much topay my staff?

Q : If I am self-employed, can I get any sick pay when I have an operation?

Q: We are an ironing service looking to employ staff to carry out ironing in their own homes on acasual basis. Can we advertise for non-smoking/clean environment when recruiting?

Q: We are a small hairdressers business (owner, plus 1 full-time and 1 part-time worker). The part-timer works 16 hours (2 days), one of which is on her own. She now states that due to personalissues, she cannot be on her own. Two days takings have already been lost, which she has beenpaid for! Am I within my rights to insist she works on her own one day per week, or tell her she

goes back to eight hours only? Can I then employ someone else for the remaining eight hours?

Q: I left a job two years ago. One year after leaving, the employer contacted me saying that I wasoverpaid and is now trying to reclaim the money. I have received four letters detailing fourdifferent amounts. I offered to repay it if they could confirm the correct amount and deductoutstanding flexi-time. They did not respond for five months and are now chasing a new amountof money. I am therefore refusing to pay. Do they have any legal grounds to pursue me at this latestage?

Q : Do employees have any rights as to when they can take annual leave or is it purely as theemployer dictates?

Q : Can I provide electronic payslips to my employees instead of paper ones?

Q: What is the minimum number of annual days leave and does it include statutory bankholidays?

Q : Can employers put a ceiling of 50 years of age when advertising for staff?

Q: What are the main things that should be included in a contract of employment?

Q: What is the legal entitlement to breaks relating to hours worked?
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2/23

Q: My boss wants to shut down for one week. Do we have to use our holidays? He says we cantake it unpaid or use our holidays?

Q: A married couple that work for me have lots of paid time off for looking after their children. Irecently gave them more paid time off because the wife was due to have an operation. I recentlyfound out the op was cancelled but they never came to work and were in fact at a party that night.Is this grounds for dismissal?

Q: After more than ten years working full-time for a company are you legally entitled to havelonger holidays?

Q: An employee walked out of his job this week and has demanded a reference do we have toprovide him with one; he is a very difficult character!

Q: Is a 17-year-old allowed to work in the evenings during the week when they are still in full-timeeducation? They are employed as a sales assistant, but are required to go to work to help paintthe shop?

Q: If my employer took me on for a permanent role, knowing that a few months later the site

would be closing and my role would be redundant, have they breached my employment contract?

Q: What is holiday entitlement for employees and when is an employee entitled to paid holiday? Isit after 13 weeks?

Q: I am a first aid trainer with a national company. I am poorly paid and want to go freelance andstill mainly work for them but they tell me I can't do this as it would be "a clash of interest". Is thistrue, is it enforceable and can they stop me earning a living in this way?

Q: What's involved in hiring self-employed sales people to work for my company?

Q: How does European employment law affect voluntary overtime?

Q: How long does a temporary contract last, I have been temporary for three and a half years;should I now be classed as permanent?

Q: What legal issues are involved if you wish to fire an employee? Do you have to pay anycompensation?

Q: If an employee is undertaking responsibility over and above her contract, i.e. deputising into amore senior role, at what point, if at all, does the employee have the right to be offered theposition on a permanent basis or be paid for deputising?

Q: We use a self-employed cleaner who comes in three-four hours during office hours on aFriday. This is no longer suitable and we have an alternative company ready to deal with it. What,if anything, do we need to be aware of before terminating the existing cleaners services?

Q: I would like to know how to calculate holidays, including Bank Holidays for part-timeemployees.

Q: If an employee breaks a pane of glass worth 40, can I take that out of their wages?

Q: What rights do temporary staff have?
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3/23

Q: Are UK small business employers obligated to pay for prescription spectacles for staff for usewith computers if it has been deemed necessary by an optician?

Q: How do I go about discussing a staff members bad body odour?

Q: As a Limited Company I have been working for a company who have been my main client forthe past eight years. Are they legally obliged to pay me holiday pay? If so how much?

Q: We have just bought a small shop and Post Office, the shop employs three staff members,which we have inherited. The owners previous to us were not in good health, which is why theyhad more staff than we actually need and more than the business can sustain. Is there any waywe could cut their hours by law, or to even get rid of them altogether? None of them have awritten contract and all of them are 60+ in age.

Can an employer do the following: details 20 days holiday leave in a letter of employment andthen after 6 months produce a contract of employment with only 15 days leave and 2 lessstatutory days?

I need to devise a human resources plan and am wondering if you could please define these

terms please - job analysis and personal specification.

Can I make an employee work on Boxing Day?

Can we terminate the employment of an employee who is persistently off work due to kneeproblems on the grounds of the employee being unfit for work? He has been with us for 8 yearsand has spent much of his working life on his knees which has clearly caused damage and he isincreasingly unable to fulfil his duties.

I have been self-employed for nearly one year and I have a baby due soon. What, apart from MAcan I get to keep the business running whilst I am on maternity leave? I have no staff at presentand accounts have yet to be done to show if the business can afford to employ someone.

Can a sixteen year old person be self-employed?

I have taken a year's unpaid leave with my employers permission, so far have been off 8 months,my employer is now saying he may want to move me to an alternative town and that if I do notwork in December they may employ someone else. When I took time off I gave them a letterdetailing that I would not return until January - what are my rights.

Q: I am setting up an information service. Can I do this privately, or would I have to register it as abusiness?

Q: Is there any advantage in changing from being self-employed to a limited company?

Q: I havent yet sent in my self-assessment tax return. What should I do now?

Q: I recently retired after 17 years as a director. The company was not in a position to buy backthe shares and suggested a buy back over a period of four years. Can I claim any relief or will Ihave to pay tax on the proceeds?

Q: I run a small business agency and want to put employees onto a self-employed basis.

Q: Im a production editor looking to set up on my own, taking with me two clients. One of theclients said that he might have to treat me as PAYE.Is this right?
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Q: Both my wife and I work full-time and pay Class 1 National Insurance contributions (NICs) andwe own a small residential home and pay Class 4 NICs. We are now asked to pay Class 2 NICS asself-employed people. Is this right?

Q: Im self-employed and dont use my own name. Do I have to register the name anywhere?

Q: Please could you advise me on what insurance I should take out. I employ three men who areall self-employed to work for me.

Q: I am in full-time employment as a woodworker. I also do private work.Could I be self-employed?

Q : I am starting a small construction firm with about five employees. As the employer, do I haveto supply transport for employees to get to the work place?Answered by Peter Done, PeninsulaTechnically no, you do not. Unless you mention an offer in the job advert; by word of mouth during theinterview; in the job offer letter; or in the statement of employment particulars, which implies you willprovide transport, then you would not be obliged to do so.At first thought, most people find their own way to work at their own cost, and why should this be different

in the case of your employees? Incidentally, as far as the law is concerned, be it five, 50 or 500, thenumber of employees makes no difference. But, will these five have the ability to get to this site? Whatabout a different site in the future? Would it be necessary to pay their travel expenses? Would it becheaper to provide a van or mini bus? If they are all picked up they should all arrive together, howevernone of them would arrive if the van breaks down.I think you need to consider the current site and any future site changes plus tax and cost implications, toformulate a long-term strategy, which you can introduce into your policies.Back to topQ: Do staff accrue holidays whilst on long term sick?Answered by Carolyn Mumby, Employment Law EssentialsThis is an interesting question because lawyers have played it safe in the past and advised employers toallow holiday to accrue during long-term sickness absence because there was uncertainty as to how theWorking Time Regulations could be interpreted. However, that has all changed with a recent Court ofAppeal decision in a case called Kigass. Now, unless you have promised to pay such holidayentitlement, the employee does not have the right to claim it and can only accrue Holiday Leave whilst in

receipt of Statutory Sick Pay. Once their right to Statutory Sick Pay runs out, which is a maximum of 28consecutive weeks, then they also lose the right to accrue holiday leave.Back to topQ: One of my employees keeps taking time off for 'stress'. I am sceptical about this but amworried that she will take legal action if I challenge her. How can I handle this situation?Answered by Ben Wilmott of the CIPDOne of the challenges for employers in managing stress is that it is often impossible to distinguishwhether it is caused by work or by what is happening in an individuals personal life. An employee mayfind their workload manageable under most circumstances but if they are going through, for example, amarriage break-up, their ability to cope with the pressure of work may be affected. Some individuals alsohave low thresholds when it comes to coping with pressure and will suffer from stress regardless of howwell their employer attempts to identify and manage its causes at work.This means of course that much stress is completely outside employers control. That is why employersshould have in place support available for workers who are suffering from stress. Such support mightinclude access to a counselling service or confidential helpline, as well as training in coping skills such as

time-management and relaxation techniques. The provision of flexible working policies can also helpemployees balance their home and work lives and can help reduce the pressures that can result.Research by the CIPD into employee attitudes shows that flexible working was one of the key HRpractices associated with workplaces which were likely to have lower levels of reported stress at work.It is important to try and identify the cause of stress first and some up with an intervention as soon aspossible. For example, if struggling with workload this might require time management training or if it isthe nature of the job that is causing the problem the employer might need to change working hours ormake changes to the job role. Providing support for those with problems outside work is still beneficial tothe employer because the problem is affecting the individuals productivity. You could also take action byreferring the individual who is suffering from stress to an occupational health professional.
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Having a stress management policy also makes it clear that the issue is seen as a priority. Policiesshould cover all aspects of an organisations approach to managing stress including risk assessmentprocedure, training for staff and support for individuals suffering from stress.Training employees and particularly managers to identify and respond to the causes and symptoms ofwork-related stress will help ensure that where there are problems they are spotted at an early stage sothey can be addressed before they can escalate.Back to top

Q: I want to discipline an employee whose work is falling well below standard. What is the bestway of doing this?Answered by Ben Wilmott of the CIPDWe all like giving praise but most of us find it more difficult to criticise. Setting out guidelines in the firstinstance is a good start it gives managers clear direction and tells employees what behaviour wont betolerated.In the first instance it is important to investigate the reasons for poor performance, particularly if theemployee has a satisfactory record previously. Some people start going sick or coming in late becausethey are stressed. They may have a difficult relationship with a colleague, be struggling with particulartasks, or there may be a traumatic event in their home life. Inadequate investigation may make it moredifficult to defend yourself against unfair dismissal claims.A formal performance review will help but wont solve the problem unless they are supplemented withmore regular ongoing communication. It is important to arrange a time to discuss the issues with theemployee concerned identify the problem and offer the employee the chance to explain. The individualconcerned might not realise there is a problem or simply need some additional training and support.

Back to topQ: Our staff work for 3 hours at 5.45 per hour in the morning, and then go on home-based call-out, staying within a 20 minimum radius of their home, for the next 21 hrs. For this they receive15.00. They then start their next three hour shift. Is this legal?Answered by Carolyn Mumby, Employment Law EssentialsIf you require employees to be on stand-by awaiting instructions to work without notice, you are requiredto treat them as though they were actually working during the stand-by periods. This means the hours willbe subject to minimum wage pay and the accrual of holiday entitlements. As your staff only receive 15for the 21 hours on stand by, they are not receiving the national minimum wage for these call out periodsand it is advisable to review the situation immediately.Back to topQ: I am starting up a hairdressing business and would like to know how to work out how much topay my staff?Answered by Ben Wilmott of the CIPDPay is important but it is not the only tool that can be used to attract and retain staff. CIPD research

reveals that individuals are attracted, retained and engaged by a whole range of financial and non-financial rewards and that these can change over time depending on their personal circumstances formore detailed information see CIPDs free factsheet on total reward www.cipd.co.ukHowever, it is important to remain competitive in order to attract employees. It might be worth contactingthe hairdressing council www.haircouncil.org.uk for advice. Also look at the job market within thegeographic region, find out what other salons are paying staff and check the average rate of pay forhairdressers within the region by visiting www.paywizard.co.ukThe Office of National Statistics also carries out an Annual Survey of Hours and Earnings (ASHE) thatprovides information about the levels, distribution and make-up of earnings and hours worked foremployees in all industries and occupations.Back to topQ : If I am self-employed, can I get any sick pay when I have an operation?Answered by Peter Done, PeninsulaThis question crosses boundaries between employment law, the law of contract and the national benefitssystem. Since you are not an employee, it is unlikely that you would be entitled to Statutory Sick Pay however if you have only recently gone self-employed you might be entitled to payment if you were fullyup on your NI class contributions until less than two years ago. Alternatively you might be entitled to claimIncapacity Benefit. It would therefore be worth a telephone call to your local Job Centre Plus to enquire.For the future, you might consider taking out ill health/accident insurance to protect your income.Click here to find your local Job Centre Plus.Back to topQ: We are an ironing service looking to employ staff to carry out ironing in their own homes on acasual basis. Can we advertise for non-smoking/clean environment when recruiting?Answered by Carolyn Mumby, Employment Law Essentials
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You are right to consider the laws of discrimination when considering recruitment. However, althoughmany minority groups are protected, including women, ethnic minorities and younger and older workers,you will be pleased to read that the world has not yet taken leave of its senses by introducing legislationto promote the employment of unhygienic workers and as far as refusing to dispatch your cleanlaundry to smoke filled homes, you are positively at the forefront of government policy to ban smoking inthe workplace. So you are, for now, free to recruit those who work from clean, smoke free zones.Back to top

Q: We are a small hairdressers business (owner, plus 1 full-time and 1 part-time worker). The part-timer works 16 hours (2 days), one of which is on her own. She now states that due to personalissues, she cannot be on her own. Two days takings have already been lost, which she has beenpaid for! Am I within my rights to insist she works on her own one day per week, or tell her shegoes back to eight hours only? Can I then employ someone else for the remaining eight hours?Answered by Carolyn Mumby, Employment Law EssentialsAs her employer, you have to find a solution that is practical for your business otherwise you wont haveone! However, you need to balance this interest with that of the employees right to work safely and herneed to earn a living.You havent said what the personal issues are, but I am concerned that they may be linked to a disabilitywhich is, of course, a protected situation. This means that you could be penalised for treating a disabledemployee less favourably than an able worker.Remember too that disability now includes conditions which are not necessarily clinically recognised, so ifshe is suffering with stress, then she may fall within that definition. Just make sure that you are treatingall your workers equally when it comes to deciding how to deal with this situation.

Try to reach an agreement with your employee for a mutually acceptable way forward, through discussionof all the options and the effects on both the business and the employee. Ask the employee what shesuggests. Employees often understand the problem more readily if they are involved in the solution.If all else fails, and after genuine consultation, as a small employer you should be within your rights toreduce her hours of work, if doing otherwise would be an unreasonable financial burden on the business.(i.e. to employ two people where only one is required to fulfil customer demand).Back to topQ: I left a job two years ago. One year after leaving, the employer contacted me saying that I wasoverpaid and is now trying to reclaim the money. I have received four letters detailing fourdifferent amounts. I offered to repay it if they could confirm the correct amount and deductoutstanding flexi-time. They did not respond for five months and are now chasing a new amountof money. I am therefore refusing to pay. Do they have any legal grounds to pursue me at this latestage?Answered by Carolyn Mumby, Employment Law EssentialsIf you were still employed by the company, it would be a case of making a deduction from wages, but as

you have left their employment this is clearly not the case and as a result it makes it more difficult forthem to get their hands on the cash. They do have every right to stake a claim to the money in the courts,because you have received money to which you were not entitled. This does not mean to say that theywould win their case.If you work out who is morally entitled to the money, you will have your answer. If you realised youremployers mistake but refused to repay it and instead spent the money on trivial indulgences you maywell find their case is easily won.On the other hand, if you didnt realise the employers mistake and they didnt enlighten you until after youhad spent the cash, then they would find it harder to argue for repayment, especially after such a longtime. Alternatively, if they win their case, you could ask the court to let you repay it in small instalments,such as a few pounds a month to ease the burden.As you no longer work for the company, they would pursue their case in the County court or High courtand different limitation periods apply, that is to say, they must stake their claim to the money in the courtswithin six years of the overpayment itself.Back to topQ : Do employees have any rights as to when they can take annual leave or is it purely as theemployer dictates?Answered by Peter Done, PeninsulaThe Working Time Regulations 1998 gives employees and workers the right to four weeks paid holidayper annum or pro rata for part-timers. Thus someone who normally works five days per week would beentitled to 20 paid days per annum, and someone who normally works two days per week would beentitled to eight paid days holiday.The government is currently consulting on the period over which this will be extended to 28 days perannum, to include in addition to the current 20 days, the eight Bank/customary holidays.
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The Regulations allow the employer to control when holidays are taken in two direct ways; the employercan, by giving the appropriate notice, tell employees when they must take their holidays; or by giving theappropriate counter notice, can refuse an employees request for holidays at a particular time. If theemployer does not have a relevant agreement with employees then the default rules apply. These are: An employer must give twice the amount of notice as the amount to be taken. So if the employerwants the employee to take one weeks holiday he/she must tell the employee at least two weeks beforethe start of the weeks holiday;

An employee must request give notice of at least twice the time to be taken before the start of theleave. So if the employee wishes to take one days leave he/she must ask at least two days before; and If the date requested by the employee is unsuitable then the employer can refuse the request butmust do so at least once before the time requested. So if an employee requests a day off two days beforethe date requested and it is unsuitable then the employer must refuse the request at least one day beforethe date required.If you give contractual holidays over and above statutory leave, you can set whatever rules you like,within reason, regarding the taking of leave. Most employers would find trying to control holidays usingonly the default rules difficult and therefore a relevant agreement at least, would seem essential.Back to topQ : Can I provide electronic payslips to my employees instead of paper ones?Answered by Peter Done, PeninsulaNo, according to the Employment Rights Act 1996 the requirement is:'Itemised pay statement

(i) An employee has the right to be given by his employer, at or before the time at which any payment ofwages or salary is made to him, a written itemised pay statement'In a worst case scenario the employer could be ordered by a Tribunal to repay the last 13 weeks illegaldeductions to the employee if they have not issued a written itemised statement in the correct form. Sinceany deductions, such as tax or National Insurance, would have been an illegal deduction, it could amountto a considerable sum. Plus the chances of HM Revenue and Customs paying you back the tax andNational Insurance is very unlikely.Back to topQ: What is the minimum number of annual days leave and does it include statutory bankholidays?Answered by Carolyn Mumby, Employment Law EssentialsThe right to paid holidays was introduced by the Working Time Regulations 1998 and came into force onthe 1st of October 1998.Currently statutory annual leave is four working weeks which is usually 20 days (where the worker worksa five-day week). The four weeks is proportional if somebody is part-time.

It is likely that government will use the new legislation in the form of The Work and Families Act 2006 toextend the entitlement to 28 days, so for those companies that currently allow just 12 days holiday pluseight Bank Holidays each year (making a total of 20 days) they will be in breach unless they extend theirholiday entitlement in line with the new Act to a total of 20 days plus eight Bank Holidays.However, the good news for employers is that this provision will be gradually phased in and as fromOctober 2007 the entitlement will be raised by four days with the right to take the other four beingintroduced in October 2008 or 2009.Back to topQ : Can employers put a ceiling of 50 years of age when advertising for staff?Answered by Peter Done, PeninsulaIt would be unwise to do so for two reasons currently and a third one from the 1st October 2006. Firstly,there are many 50-year-olds who are supremely fit, quick and active and many 40-year-olds who are not,therefore using a stated age is inadvisable as it would rule out many suitable candidates. Secondly, thereis currently in existence a code of practice advising against age discrimination which a Tribunal wouldtake into account, should a Tribunal claim arise. Although the code is not of itself law, breaches of itwould nevertheless have to be justified.Thirdly and perhaps most importantly is the imminence of the 1st October 2006 and the EmploymentEquality (Age) Regulations 2006 coming into force, which will outlaw age discrimination. It covers allages, young as well as old. Expressions such as office junior and mature person are unlikely to beacceptable. Unless a specific age is relevant under other legislation such as National Minimum Wagerates and driving rules; it is highly unlikely that you would be able to objectively justify a 50 years of agecut-off, if only for the first two reasons above.Back to topQ: What are the main things that should be included in a contract of employment?
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Answered by Carolyn Mumby, Employment Law EssentialsEmployees are entitled to a Statement of Terms of Employment within the first two months of startingwork for a new employer. It should be compliant with the Employment Rights Act 1996 and theEmployment Act 2002. stating the obvious in some instances, such as the start date, the days and hoursof work, the place of work, the job itself, the rate of pay, holiday entitlement, sick pay entitlement, thedetails of any collective agreements (relevant to unionised environments) which may be in place, andpension entitlement, etc. Then there are some apparently obscure clauses such as whether the

employee will be required to work abroad for more than one month per annum. The full list is availablehere at the OPSI website.There are matters which a competent employment lawyer would advise an employer to include such asdeductions from wages clauses and lay-off provisions and equality and diversity policies but that is amatter for the individual and as specialists in employment contracts we find that however similar abusiness may apparently be to another down the street, in fact, they each have different requirements soits difficult to advise on a general basis beyond the statutory requirements stated above.Not to be missed out are the disciplinary and grievance procedures which are elaborated upon in theEmployment Act 2002 and ACAS can give you a brief description of the procedures but in my experienceit is a bit too brief and gives the impression that disciplinary management is merely a three-stepprocedure. Well you could say that flying to the moon is a three step procedure if you boil it down farenough, but most people would accept that its a bit more complicated than that!Back to topQ: What is the legal entitlement to breaks relating to hours worked?Answered by Peter Done, Peninsula

The Working Time Regulations 1998 states that:Where an adult workers daily working time is more than six hours, he is entitled to a rest break of noless than 20 uninterrupted minutes.Where a young workers daily working time is more than four and a half hours he is entitled to a restbreak of at least 30 minutes, which shall be consecutive if possible.A young worker is a worker who is at least 15 but not yet 18 years old and adult workers are 18 or over.There are other rules relating to the interrupting of breaks; it is to be spent away from the workstation;compensatory rest if a rest break is interrupted or disallowed; if the health and safety of a worker is put atrisk, particularly for monotonous or pre-determined work, then the employer should ensure that theworker is given adequate rest breaks.For most workers the first two rules will apply. Nothing in the regulations states that the breaks should be

paid if monotonous or predetermined work rates apply, although they can be paid if the employer wishes.Risk assessments should also be carried out, and if you are still unsure professional advice taken.Back to topQ: My boss wants to shut down for one week. Do we have to use our holidays? He says we cantake it unpaid or use our holidays?Answered by Peter Done, PeninsulaThis depends upon what is in the contract of employment.The right to statutory holidays is four paid weeks in each leave year, as stated in the Working TimeRegulations Act 1998. If no relevant agreement is in force to change matters then the default provisionsapply.The main rule is:A workers employer may require the workerto take leave to which the worker is entitlednot to takesuch leave.This effectively means that an employer can tell the worker when to, or when not to, take their leave.The rules require that the employer gives notice of the planned holiday, twice as many days before theearliest day specified in the notice as the number of days (or part-days) which the notice relates to.This means that if the employer wants a worker to take a day off, the worker must be informed at leasttwo days before. So for one week of holiday notice, he would have to be given at least two weeks noticebefore the start date of the weeks holiday.
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Therefore an employees contractual terms are the statutory terms that an employer can act on as statedabove. Often employers offer holiday terms that are better than statute. In my experience mostcontractual holiday clauses do give the employer the right to control when holidays are taken and, if so inyour case, the employer can do it. It is advisable to check your personal contractual terms to find outwhat you are entitled to.

Clearly problems do arise over holidays; factors combine which prevent the employer allowing thebooked and possibly paid-for holiday at the very last minute. In such a situation one would assume theemployer would pay compensation and allow the holiday to be deferred, possibly into the next holidayyear. It would clearly be beneficial for yourself if you can afford to take it as unpaid, whilst still retainingyour total paid holiday.Back to topQ: A married couple that work for me have lots of paid time off for looking after their children. Irecently gave them more paid time off because the wife was due to have an operation. I recentlyfound out the op was cancelled but they never came to work and were in fact at a party that night.Is this grounds for dismissal?Answered by Carolyn Mumby, Employment Law EssentialsIf you are providing your employees with paid time off you would expect them to behave in an honest andresponsible manner whether or not that paid leave was a statutory entitlement or just because you are agood boss.However, when the employee abuses the situation the relationship can turn sour and you have to remind

yourself that you must remain objective and look at this behaviour on its own merits because it doesnthave anything to do with previous paid leave at this stage.You are asking whether this type of misconduct is grounds for dismissal. Well, misconduct itself is one ofthe potentially fair reasons for terminating an employees employment, and gross misconduct can resultin immediate termination of employment without previous warnings, but the decision must be fair in thecircumstances.I advise you to take a step back and ask yourself how serious you think this behaviour is on a scale ofone to ten with ten being the most serious misconduct such as fighting on company premises orembezzlement. The other end of the scale would be really minor acts of misconduct such as being a fewminutes late for work on the odd occasion. Midway serious, you may expect to find examples of beingrude to a senior manager; and it will be even more serious if insubordination was carried out in front of acustomer because it could have adverse affects on the business as a whole and for that reason, someobservers may say that kind of behaviour is more like gross misconduct. The point is that you can onlyassess the conduct as minor, serious or gross if you look at the surrounding facts.Here, the employees in question may have lied to gain a monetary advantage from you and this would

normally be regarded as unacceptable behaviour as it can adversely affect the business in terms ofprofitability and staff morale (as other staff have to cover during a colleagues absence).From the facts you have given this would seem on the face of it to be a gross misconduct issue but weonly have to add a few mitigating factors to describe a totally different scene. For example, if theemployee was suffering with a life threatening condition and due to her specialist being involved in a caraccident only half an hour before her operation, she was sent home, the time being 3.00pm in theafternoon when she was finally discharged from hospital. Now, quite distraught by events her husband,who has been at her side throughout her ordeal, persuaded her to attend her parents golden weddinganniversary celebrations in an attempt to lighten the burden. (Their loving daughter having kept herparents in the dark about her illness in an attempt to spare them the trauma of recent events!)Oh dear, if you were to fire these two employees I fear that you could come unstuck in a tribunal. But onthe other hand, two thoughtless, party animals who screw their boss for every freebie they can get, wellthats a different matter entirely and if you make sure that you follow the disciplinary procedure to theletter, you may be able to justify a dismissal for gross misconduct but in any event, I advise you to takethe advice of a solicitor before dismissing these two.Just a note, employers often misread the phrase dismissal without notice when it comes to grossmisconduct. It means that after you have applied the proper disciplinary procedure and if a dismissal isjustified on the evidence, then you can dismiss the employee with immediate effect, without paying themfor their notice period. They would still be entitled to appeal of course. It doesnt mean that you can sackthem on the spot without the formal procedure!Back to topQ: After more than ten years working full-time for a company are you legally entitled to havelonger holidays?Answered by Carolyn Mumby, Employment Law EssentialsThe place to find the answer to your question is your statement of terms of employment, otherwise known
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as your contract of employment; this should set out your statutory and any extra contractual annualholiday leave entitlement. If your employer hasnt provided you with a long service bonus, the answer in anutshell is, Im afraid, No.At present the statutory requirement for annual leave (i.e. the legal minimum) is four working weekswhich, if you work a five days week, is 20 days per year as set out in the Working Time Regulations1998. This can be comprised of 12 days annual leave and eight days for the Bank Holidays.The Work and Families Act will increase the legal minimum to 28 days which will mean employers who

currently include the Bank Holidays will be in breach of the legislation unless they extend the entitlementto 20 days plus the eight Bank Holidays. These changes will start being phased in during October 2007.There is no legal requirement to extend annual leave entitlements in line with length of service althoughsome companies do operate a system by which they award long serving employees with extra daysannual leave. However, due to the Age Discrimination Regulations coming into force in October this year,loyalty bonuses such as extended leave will only be lawful where the employer can demonstrate a goodbusiness case for treating longer serving employees more favourably. For example, where the jobrequires a long and expensive training period the company may be able to demonstrate that a longservice award helps to keep the costs of the business down and that there isnt a proportionate way ofachieving the same result.Back to topQ: An employee walked out of his job this week and has demanded a reference do we have toprovide him with one; he is a very difficult character!Answered by Carolyn Mumby, Employment Law EssentialsAn employer is not legally under an obligation to provide a departing employee with a reference unless

there is a contractual requirement to do so and the answer to this should be evident from reading theemployment contract.However, it is advisable to give some basic information to enable an employee to get another job(especially if you want them to leave!) Details of their length of service, job title and salary is at least thebasic information that would be expected. This type of reference has become known as tombstoneadvice for obvious reasons.However, the whole purpose of a reference is to assist the employee in securing new employment. Herestarts the dilemma. If you disclose information which is unhelpful to the original purpose and in fact mayput off a future employer, the employee may sue you for damages arguing that your disclosure was insome way either protected by Data Protection legislation or untrue or malicious.So remember, if you do disclose information which may prevent an employee from gaining futureemployment, it is dangerous to do so and unless it is necessary in the circumstances it is advisable tokeep the information to yourself.For example, if an employee was dismissed for stealing money from the till, is it really relevant to theroad-sweeping job they are applying for? The chances of a difficult employee suing your company are

quite high I would have thought and unless you can show that this difficult personality polarised yourbusiness or caused you to dismiss them for misconduct AND that this is relevant to the reference inquestion, then it is advisable to remain quiet on the subject and provide the basic tombstone advice,while waving a fond farewell from the safety of your office window!Back to topQ: Is a 17-year-old allowed to work in the evenings during the week when they are still in full-timeeducation? They are employed as a sales assistant, but are required to go to work to help paintthe shop?Answered by Peter Done of PeninsulaThe answer to this question is quite complicated. There are several regulations that apply, there areseparate rules for under-13, under-14, 1416, and 16s qualified for school leaving age. Therefore, theindividual could be quite a lot over 16 or conversely barely reaching 16. There are then the Working TimeRegulations 1998 which deals with young workers who are over the minimum school leaving age buthave not yet reached the age of 18; i.e. they are aged between 16 and 17 years of age. Other pieces oflegislation affecting young persons and children are the Employment of Women, Young Persons andChildren Act 1920, the Children and Young Persons Acts 1933 to 1969 as amended by the Children(Protection at Work) Regulations 1998 and Children (Protection at Work) Regulations 2000. There is alsothe Health and Safety at Work etc Act 1974 and other regulations affecting things like the Education(Work Experience) Act 1973 and the Children (Performances) Regulations 1968 to name but a few!Perhaps you might want to take note of the Management of Health and Safety at Work Regulations 1999as well! I think it is therefore fairly obvious from the foregoing that there are many regulations applying tothis situation and not only are they complicated they also contain for those who transgress them, quiteserious penalties. If all of that national law is not enough there are also local authority bylaws, whichaffect categories of light work entered into by children over the age of 13. It would therefore be prudent tocheck with your local education authority that the work, not just this additional work in the evenings, is
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within the rules and in any event covered by a permit for working those hours and if this additional hoursthey are required to work would mean the licence hours are exceeded.Back to topQ: If my employer took me on for a permanent role, knowing that a few months later the sitewould be closing and my role would be redundant, have they breached my employment contract?Answered by Peter Done of PeninsulaThere is, except in certain very specified roles, no such thing as a permanent role. I assume what you

mean is that when the job is offered it does not have any sort of label attached to it regarding it beingtemporary or casual, or that it is not to be defined for a fixed-term. If you were induced to leave a job onthe promise of a new job that would be permanent and the employer knew at the time that they made thatoffer that it would in fact be only for a short period, they would have been committing an offence. Thedifficulty would be for you to prove that they knew, at the time they made the offer, that it would be onlytemporary rather than permanent. You would not be able to pursue a claim to Tribunal because thecircumstances under which an Employment Tribunal can hear a breach of contract claim is somewhatlimited and does not include areas such as this. You would need to therefore pursue a claim in theCounty Court for breach of contract or even, depending on the losses sustained, possibly the High Court.You should seek professional advice from a solicitor who specialises in this field.Back to topQ: What is holiday entitlement for employees and when is an employee entitled to paid holiday? Isit after 13 weeks?Answered by Peter Done of PeninsulaEvery employee and worker is entitled to four weeks paid holiday per year. If somebody works less than

a full week i.e. they work two days a week then their paid entitlement is four times two days equallingeight days paid holiday. The reference to 13 weeks is incorrect. When the regulations were firstintroduced, in October 1998, there was a requirement that employees had to work for 13 weeks beforethey became entitled to paid holidays. This was altered as a result of a claim by BECTU to the EuropeanCourt of Justice, who ruled that employees accrue the right to paid holidays from day one of employment.There have been complications with rolled-up holiday pay where someone is paid by a percentage,usually just over eight per cent each week or month, so when they receive that additional eight per centeach week or month, once on holiday they do not receive any pay from the employer having received italready through this eight-plus per cent. This has been ruled illegal and therefore case law, rather thanthe regulations, states that somebody should receive holiday pay to cover the duration of that holiday.This means that even if somebody goes on holiday very shortly after joining a company, and they haveyet to accrue an entitlement to two weeks holiday pay they nevertheless must be paid the two weeks.There is some good news, in that the employer can control when someone goes on leave and it wouldtherefore be prudent not to allow people to take paid leave until they have accrued all or at least themajority of it. It would also be prudent to have a Relevant Agreement which entitles the employer to claim

back from any pay due at the time the individual leaves any over-paid holiday pay. If there is no relevantagreement you cannot do this. The accrual is basically on 20 days divided by 12, which equals 1.67 daysper month. There is a formal calculation for accruing and there is also a formal calculation for calculatingentitlement when somebody leaves if they have not taken all that to which they are entitled. TheGovernment has just commenced consultations on lifting the entitlement to 28 days per annum over aperiod of years.Back to topQ: I am a first aid trainer with a national company. I am poorly paid and want to go freelance andstill mainly work for them but they tell me I can't do this as it would be "a clash of interest". Is thistrue, is it enforceable and can they stop me earning a living in this way?If you work as an employee for a company and you decide to set up your own business, you can do soon a full-time or part-time basis. If you do so on a full-time basis, you are of course resigning from yourcurrent employment and going it alone. Sometimes, workers do just that and then contract their servicesback to their previous employer on an agreed basis and this article may help you think that processthrough. However, there is no obligation on the previous employers part to agree to terms which are notin their interests and if you want to supply your services to them on a freelance basis you are on a levelplaying field with any other supplier.However, many workers are employed by a third party during the day and then run their own business inthe evening. If this is what you want to do (work part-time for your current employer and do somefreelance work for other companies in your free time) it is difficult for a company to prevent you doing sounless your current employment contract already restricts such activity, (this is known as a restrictivecovenant and it must be reasonable in the circumstances and as you suggest, they cannot prevent youfrom earning a living). Alternatively, they could argue that you are unfit for work (due to the long hoursspent freelancing) and in that case, as your employer, they could discipline you, but it would come downto whether or not there was reasonable evidence of the alleged unfitness.
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Back to topQ: What's involved in hiring self-employed sales people to work for my company?Answered by Peter Done of PeninsulaDanger! The danger, as always, is what is the real contractual relationship between the parties? Whatstarts out as one may change over a period of time to another. (See answer to fork-lift truck driversquestion). Someone who is genuinely self-employed will be of interest to HM Customs and Revenue ina different way to an employee. They will want (if you are ever investigated) to see a copy of the contract

for services. No such contract means almost certainly that the Revenue will regard him/her as anemployee and that means trouble. So, firstly make sure you have the proper contractual terms in place.Secondly if he/she is genuinely self-employed then they are free to refuse or accept work from you at will.If they also sell for other organisations, to which they provide services, are they in fact an agent? If sothere is legislation, inevitably these days, originating from Europe, regarding agencies. Since suchcontracts are commercial contracts and not employment ones, and the dividing lines sometimes can bevery fine it would be prudent to take advice from a solicitor specialising in that field.It might be easier to actually employ the individual as the law is simpler and easier to obey and you willbe in a much better position of control than if they were self-employed!Back to topQ: How does European employment law affect voluntary overtime?Answered by Peter Done of PeninsulaI am not quite sure what is meant by voluntary overtime either in a European or UK sense. The WorkingTime Directive 1993, brought into force in the UK by the Working Time Regulations 1998 (slightlydifferent name but same details for Northern Ireland) limits working time to 48 hours per week unless a

signed opt-out is held by the employer in respect of the individual employee.Clearly if someone has signed such an-opt out the number of overtime hours, voluntary or not, isirrelevant.Most employers insert into contracts clauses regarding overtime. If they state overtime is mandatory andguaranteed then overtime is working time. If overtime is mandatory but not guaranteed then it is workingtime. Even where there is a clause which states you will be required to work the hours necessary forthe proper fulfilment of your dutiesetc such overtime is working time.The one time where overtime might be said to be voluntary and not count towards the working timemaxima would be where an individual decides to work beyond normal finishing time knowing that they willnot be paid (or given time off in lieu) simply because it suits them so to do. Then that time may not countas overtime and therefore not as working time. Again a Tribunal would look at the reality of the situationto ensure an employer wasnt illegally exploiting an employees goodwill.

Back to topQ: How long does a temporary contract last, I have been temporary for three and a half years;should I now be classed as permanent?Answered by Carolyn Mumby, Employment Law EssentialsThe place to begin for the answer to your question is your contract of employment. Many temporaryworkers are employed on fixed term contracts which, under the Fixed-term Employees (Prevention ofLess Favourable Treatment) Regulations 2002, is automatically converted by law into a contract ofindefinite duration (a permanent one) when the employee has worked for the employer for four years.If the fixed term contract is not renewed it is techically a dismissal and quite apart from having four yearsservice, even if you have just one years service or more, you will be able to make a claim for unfairdismissal if your employer fails to renew your contracts without following the correct procedure. Whetheror not your claim succeeds depends of course on whether your employer acted fairly in thecircumstances.How much an employee would be entitled to claim would depend, among other factors, on how long theiremployment contract could reasonably be expected to last. Clearly in the case of a fixed term contractunder four years duration the employee would not have attained permanent status under the statute andit may be argued by the employer that the job was expected to end on the last date of the fixed term. Sothe magic number is definitely four years.Back to topQ: What legal issues are involved if you wish to fire an employee? Do you have to pay anycompensation?Answered by Carolyn Mumby, Employment Law EssentialsDismissing an employee can be a difficult area to tackle for employers especially if the employee hasworked for the company for 12 months or more because they attract Unfair Dismissal rights. However, ifthe employer has put employment contracts in place and can show that they have followed the correct
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procedures fairly and competently then they are more likely to successfully defend a tribunal casefollowing a dismissal.The Employment Act 2002 requires employers, as of 1 October 2004, to follow new statutory disciplineand grievance procedures and make employees aware of these procedures and their right to apply thegrievance procedure and their right to appeal against decisions made during the disciplinary procedure.Failure to follow them is very likely to lead to a finding of unfair dismissal and may increase anycompensation payable.

Employment Law provides five potentially fair reasons for dismissing an employee. They are as follows:

Conduct (where the employee's behaviour is seriously unacceptable)

Capability (where the employee can no longer do their job)

Legality (for example, where the loss of his driving licence means the taxi driver cannot drivelegally)

Redundancy (for example, where there is insufficient work - the rules are very detailed in thisarea)

Some other substantial reason (this is called the catch-all reason but it should be used carefullybecause you have to show that the reason was 'substantial'.)

Remember, that these are not 'fair reasons' until the procedure is followed and the allegations

investigated and proven; if the procedure is not followed it is likely to be regarded as an automaticallyunfair dismissal. The compensation limits for unfair dismissal currently stand at 8,700 basic award and58,400 compensatory award.If you wish to dismiss an employee for something other than the five potentially fair reasons listed aboveyou are likely to find yourself in hot water and facing a costly tribunal. Remember also that other claims,such as sex discrimination, have no upper limit on the amount of compensation that can be awarded.You are advised to take legal advice in respect of the particular case before dismissing any employee.Back to topQ: If an employee is undertaking responsibility over and above her contract, i.e. deputising into amore senior role, at what point, if at all, does the employee have the right to be offered theposition on a permanent basis or be paid for deputising?Answered by Peter Done of PeninsulaThis question is more than difficult to answer in a short response like this. As a matter of best practice, ifnot directly statute or contract law, it does not seem sensible to have someone doing extra duties forwhich you do not pay them. For the simple reason that reliance on goodwill such as this is wrong and is

also likely to lead to dissatisfaction; in which case the individual may flatly refuse to carry out the duties orto stand in, and you will lose out because you could not, in those circumstances, force them to do so. Iwould place a caveat on that because under the contractual terms that exist in any particular company itis possible, although remotely, that there could be some contractual right to have someone stand in. It isalmost unheard of that somebody should be expected to do that without pay unless it was for anextremely short period of time. Equally it cannot be good practice for your company to run withoutsomebody in that more senior position for any period of time. If you can run without them then thequestion must be asked do you need that position at all? The best thing to do is to sit the individual down,make them aware that that vacancy is open to them and if they apply for it consider them for it. If they aresuitable, promote them and pay them accordingly. If they are not suitable for it do not promote them.Back to topQ: We use a self-employed cleaner who comes in three-four hours during office hours on aFriday. This is no longer suitable and we have an alternative company ready to deal with it. What,if anything, do we need to be aware of before terminating the existing cleaners services?Answered by Carolyn Mumby, Employment Law Essentials

Status of Employment: There are a number of issues raised by your question. The first is whether thecleaner is actually self-employed (working under a contract for services) or in fact your employee(working under an employment contract). There is no detailed defintion of who is an employeeincorporated into the legislation and even if the employer pays the PAYE and NI they may still be able toestablish that there was no employment relationship but this is more common in the construction industry.

Some guidelines for the purpose of determining employment status have now been laid down in variouscases over the years. The factors which have emerged from those cases are summarised below and arevery much based on control and mutuality of o

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