Liverpool Solicitors

EMPLOYMENT LAW FOR EMPLOYERS IN LIVERPOOL

How can I calculate holiday pay?

A worker’s entitlement to paid holiday starts on the first day they start work, subject to a minimum period of employment.  Holiday pay changes according to the type of work the employee is doing.  For example, different rules can be applicable to shifts, fixed and variable hours. The rules and regulations frequently change, so you will need to make sure that you are up to date with the latest changes.

I want to make sure my employees give me notice prior to taking a holiday. What should I do?

You need to make sure that your staffs are aware of the fact that you require notice prior to them taking a holiday and if you want to govern how long this is, you should agree this with the employee in the employment contract.  In absence of any agreement, the notice period will be twice the length of their intended holiday.

What are the time limits for an employee to make an Employment Tribunal claim?

The time limits depend on the type of claim and should be checked in each case, but the rules are generally strict. In most cases the tribunal must receive a claim within 3 months from the date employment ended or when the matter being complained about happened.

If the claim is received outside the time limit, the tribunal will probably not be able to consider it unless there are exceptional reasons for the delay. For example, the claimant may have been in hospital for the period when they should have made their claim.

If a claim is accepted, the tribunal office will send the employer a copy of the claim form (ET1) together with a form for any defence (ET3). If no defence is received within 28 days, a tribunal may consider issuing a default judgment in favour of the employee.

Is there a time limit for an employee bringing an Unfair Dismissal Claim?

An employee must bring an Unfair Dismissal claim within 3 months of being dismissed. If they don’t bring a claim within this time they will lose the right to claim.

What notice period needs to be given to an employee before dismissal?

This depends on the fundamental issue of whether the employee is being dismissed for gross misconduct, in which case, summary dismissal (immediate dismissal) may be legally valid with no notice period or payment.

If dismissal is not on the basis of gross misconduct, the starting point is to consider the contract of employment and comply with this. If the contract gives the employee rights in excess of statutory minimum notice, the contract should be complied with. In any event, at law an employee will be entitled to a minimum of :-

1. An employee is entitled to a minimum of 1 weeks’ notice of dismissal if they have worked continuously for 1 month, but less than 2 years.

2. After 2 years’ employment, a further 1 weeks’ notice is required for each whole year of continuous employment up to a maximum of 12 weeks.

What consultation is required before making an employee redundant ?

An employer is under a legal duty to properly consult with employees before making them redundant, and to consider available alternatives to redundancy and to have a reasonable, documented, fair and transparent set of criteria for deciding between employees under threat of redundancy, as to which will lose his, her or their jobs. If this does not take place, you may face a claim for unfair dismissal, on procedural grounds if nothing else.

What is the difference between an Employment Contract and a Service Agreement?

Service Agreements are used to hire service providers or independent contractors, not employees. A Service Agreement is limited to a specific project or time period. Employment Contracts are used to hire employees.

What kind of actions can lead to an Employment Tribunal claim for discrimination ?

• Discrimination can be direct or indirect and includes victimisation and harassment.  You can discriminate against an employee or a group of employees based on the grounds of discrimination.
• Direct discrimination includes comments, remarks or actions made or taken directly because of one of the factors set out above.
• Indirect discrimination includes rules or practices which apply to everyone but by their very existence discriminate against a particular group.
• Victimisation includes comments, remarks or actions made because an employee has made a complaint or gave evidence based on one of the grounds of discrimination.
• Harassment
• An employer can be liable for discrimination based on vicarious liability. This is the legal concept of being responsible for another’s actions. An employer can be responsible legally for discriminatory conduct by an employee against another employee, even if the employer was unaware of such conduct

What sort of conduct can constitute sex discrimination?

• Circulation of emails with innuendos or dirty jokes
• Displaying lewd posters
• Making personal/intrusive comments about physique or clothing
• Unwanted and/or inappropriate physical contact or attention
• Not promoting someone because of their sex
• Not selecting someone for employment or promotion because of their sexual orientation

A common misconception that employers have is that if some or the majority of staff, whether men, women or both, do not object to, for example, circulation of dirty jokes, that this protects the employer. This is not correct. It does not matter that other staff of the complainant’s sex were not offended, it merely matters whether the complainant was offended.

Disciplinary and Dismissal Procedures

Employers are required by law to go through certain disciplinary procedures before dismissing an employee.

Even if you have a fair reason for the dismissal, you may be liable for unfair dismissal if you do not go through the correct procedure.

A fair procedure should, at the very least, include the following :

• You should carry out a reasonable investigation before making a decision
• You should arrange a disciplinary hearing at which the employee is given the opportunity to state their case
• The employee should be notified of the hearing and the reasons for the hearing in writing
• The employee should be given the right to bring a colleague to the hearing
• You should consider other lesser forms of discipline
• You should notify the employee in writing of the termination of employment and the reasons for it.
• The employee should be notified of the right to appeal against the decision.

Tips for managing sickness absence

Recent UK business studies have shown that levels of sickness absence have lowered during the past two years. Researchers have concluded that workers are pulling fewer ‘sickies’ because they fear this will result in lost jobs during the economic downturn.

Despite the reduction in “sickies”, absences at work still do result in costly bills for employers and can cause considerable headaches for managers.

The following article looks at some of maybe the less obvious reasons as to why absences occur and looks at what procedures employers can put in place to mitigate the effects of absences.

Identify reasons for absence

If an employee is away long term ill then the reason for this is normally fairly clear.

It is the continued short term absences which provide managers the most issues. There may be a number of reasons for this type of absence; it could be genuine illness. But maybe short terms absences need to be addressed by disciplinary action. In order to identify why the absences are taking place employers should assess whether a pattern exists. Perhaps Monday absences are the result of a socially packed weekend. Maybe the absence is due to the presence of a certain manager/employee working alongside the employee on a particular day or maybe the absence falls on a day when the employee is expected to take part in their extra curricular activities.

Conduct return to work meetings.

A meeting providing the employee to discuss the underlying reasons for their absence can give the employer useful indicators as to whether there are any health or stress issues, or whether the employee is maybe a victim of workplace bullying. It may be that in order for the employee to change their behaviour the matter needs to be dealt with as a disciplinary issue. Just by questioning their behaviour this may lead to a change of behaviour as the employee may decide to re-evaluate their absence on their own accord.

Maintain contact with absent employees

Employers are often uncertain of whether to contact absent employees but as an employee is not under any general obligation to let the employer know why they are absent it can be difficult to know what is going on. Employers should therefore specify in employment contracts that absent employees will get in touch with them when they know they will be sick.

Maintain accurate records

By maintaining good records for all absences this will help manage your employees more effectively. Any communications between the employer or employee or medical experts should be recorded such as telephone calls or back to work meetings. Good record allows the employer to see if there are patterns in absence and properly defend a claim for unfair dismissal if applicable.

Consider reasonable adjustments

An employer has a duty of care under the Disability Discrimination Act 1995 to consider and implement minor adjustments such as physical adaptations to premises or providing support and assistance through reduced work hours to employees who may suffer from a serious illness. Failure to do so could lead to prosecution under this Act. An employer should discuss any potential arrangements with the employee even if they are not considered disabled to see if any adjustments can be made.

Issues concerning stress

Employers need to consider whether an employees abscence could be down to stress. If they think they it could be then the employer needs to implement measures to deal with this stress upon the employees return.

The factors that leave an employer vulnerable to stress claims are if they were or should have been aware that the employee was suffering from stress and did not take appropriate measures to address the situation.

In order to avoid the risk of a personal injury or stress claim being made against the claim a Return to Work Plan should be devised.