A Brief Guide to Employment Law for Employers
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A
Brief Guide
to
Employment Law
for
EmployersCONTENTS
Introduction
Chapter 1 Adoption Leave
2 Business Transfers
3 Dependants’ Leave
4 Discipline
5 Equality and Diversity
6 Flexible Working
7 Grievances
8 Maternity Leave
9 National Minimum Wage
10 Parental Leave
11 Paternity Leave
12 Performance Management
13 Recruitment
14 Redundancy
15 Whistleblowing
16 Working Time
2INTRODUCTION
This guide has been produced to give employers a brief introduction
to employment law. It outlines the most common areas of
employment law faced by employers on a day to day basis. Some of
the areas outlined apply to employees and some apply to workers.
Employees are defined in law as those individuals who have entered
into or work under a contract of employment. A contract of
employment is defined as a contract of service or apprenticeship,
whether express or implied, either oral or in writing.
Workers are defined in law as those individuals who have entered
into or work under a contract of employment or any other contract,
whether express or implied and whether oral or in writing, whereby
they undertake to personally perform work or services.
The definition of worker is somewhat wider than employee and
employers should be aware of the different rights afforded by virtue of
an individual’s status.
This guide cannot, and should not, take the place of specialist advice.
Should you require any further information or assistance then please
contact
Jonathon Stokes
Telephone: 0191 389 5180
Email: jonathon.stokes@gblf.co.uk
This booklet reflects the position in law as at April 2013.
31
Adoption
Leave
4ADOPTION LEAVE
The right to adoption leave
Adoption leave is available to employees who satisfy certain qualifying criteria.
For adoptions within the UK, employees must have (i) been matched with a child
to be placed with them by a UK adoption agency, (ii) notified the agency that they
agree to the placement and the date of placement, and (iii) been continuously
employed by the employer for at least 26 weeks. For adoptions from overseas,
employees must have (i) received official notification from the relevant UK
authority of their eligibility to adopt a child from abroad and (ii) worked for the
employer for least 26 weeks by the time they have received official notification or
by the time the adoption leave is due to begin whichever is the later. In all cases,
employees must comply with the notification requirements.
Notice of intention to take adoption leave
For UK adoptions, employees must notify the employer in writing of their intention
to take adoption leave and the start date no more than seven days after they are
matched with a child. They must also confirm the date the child is expected to be
placed for adoption. If it is not reasonably practicable for the employee to meet
the seven day deadline, they should notify the employer as soon as possible. For
overseas adoptions, employees must notify the employer in three stages.
Stage 1: Confirm the date on which you received official notification and the
date the child is expected to enter the UK either within 28 days of
receiving official notification or within 28 days of completing the 26
weeks' qualifying employment.
Stage 2: Give 28 days' notice of the actual date adoption leave is to start.
Stage 3: Confirm the child’s entry into the date UK within 28 days of the
child's date of entry.
If an employee does not give the correct notice, the employer can delay the start
of adoption leave until the correct notice is given.
Amount of adoption leave
Employees are entitled to 52 weeks adoption leave. This comprises 26 weeks
ordinary adoption leave and 26 weeks additional adoption leave. Only one period
of adoption leave is available per adoption arrangement, even if more than one
child is placed for adoption as part of the same arrangement. If the child’s
placement ends during the adoption leave period, the employee is still entitled to
continue adoption leave for up to 8 weeks after the placement ends.
For UK adoptions, leave can start from the date of the child’s placement or from a
date up to 14 days before the expected date of placement. For overseas
5adoptions, leave can start on the date the child enters the UK or on a date no
later than 28 days after the date the child enters the UK. Employees can change
the date their adoption leave starts, provided they give the employer 28 days
notice in writing of the new start date.
Keeping in touch days
During adoption leave, and subject to agreement, employees may attend work for
up to 10 days as ‘keeping in touch days’. They do not have a right to be paid for
these days and neither can the employer insist an employee attends work as
keeping in touch days. Any keeping in touch days worked do not extend the
employee’s adoption leave.
Returning to work after adoption leave
Employers should assume the employee is returning to work at the end of the full
52 weeks’ leave. If an employee wishes to return to work earlier, they must give
the employer 8 weeks’ notice of the date they intend to return. If not, their return
to work may be postponed so as to give the employer 8 weeks’ notice, provided
the notice does not end after the full leave entitlement.
Employees are entitled to the benefit of their normal terms and conditions of
employment during their full adoption leave, except for terms relating to wages.
They are also bound by their contractual obligations. On returning to work after
ordinary adoption leave, employees are entitled to return to the same job as they
had before commencing leave, on the same terms and conditions. On returning
to work after additional adoption leave, they can return to the same job on the
same terms and conditions unless it is not reasonably practicable for the
employer to allow them to do so. In such cases, the employee should be offered
suitable alternative work, on terms and conditions no less favourable than they
would have had if they had not been on leave.
Statutory adoption pay
Statutory adoption pay (SAP) is paid for 39 weeks but the eligibility criteria is
different depending on whether the employee is adopting a child from within the
UK or from overseas. In all cases, the employee must have average weekly
earnings at or above the lower earnings limit for National Insurance contributions.
62
Business
Transfers
7BUSINESS TRANSFERS
Employees are protected when their employer changes by virtue of a business
transfer. Under the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (TUPE), employees retain the same terms and conditions with
the new employer as they had with the former employer. The TUPE regulations
apply in two situations: (i) the transfer of a business or undertaking (a business
transfer); and (ii) a service provision change.
A relevant transfer
A business transfers occurs when there is a transfer from one person to another
of an economic entity which retains its identity. An economic entity is defined as
an organised grouping of resources which has the objective of pursuing an
economic activity, whether or not that activity is central or ancillary. This could be
the whole business or just a department within a business. The regulations do
not apply where there is simply a transfer of company shares from one owner to
the other.
A service provision change can occur in one of three situations:
(i) contracting out or outsourcing - services previously undertaken by the
employer are awarded to a contractor;
(ii) retendering – a contract is reassigned from one contractor to another;
(iii) contracting in or insourcing - the contract ends and the service is brought
back in-house.
A service provision change would not occur where there is a change in supply of
goods, for example a restaurant changing food suppliers, or where the contract is
for a single specific event or short term task, for example a catering company
being used to cater at a large corporate event.
Information and consultation
The TUPE regulations impose an obligation on an employer to provide certain
information about the transfer to the appropriate representatives of any employee
affected by the transfer. The obligation applies to both the transferring and
receiving employers and affected employees include non transferring employees
if their jobs might be affected by the transfer as well as those actually transferring.
Appropriate representatives must be told that a transfer is to take place, the date
or proposed date on which it will occur and the reason for it. Representatives
must also be told about any legal, economic and social implications of the transfer
and any measures that will be taken in connection with the transfer in relation to
any affected employees.
8Both the transferring and receiving employer are also required to consult with
their appropriate representatives about any measures to be taken. Where the
receiving employer proposes to take measures in relation to the transferring
employees, he is under a duty to inform the transferring employer of those
measures so that the transferring employer can consult with his appropriate
representatives.
The required information must be provided to the appropriate representatives
“long enough” before the transfer takes place so as to enable meaningful
consultation. Employers should enter into consultation with a view to seeking
agreement to any intended measures and must give reasons for rejecting any
representations put forward by the appropriate representatives.
Appropriate representatives
Where there is a recognised trade union, the appropriate representatives will be
representatives of the trade union. Where there is no recognised trade union,
appropriate representatives will be individuals elected by the workforce for the
purposes of consultation.
If there are no existing employee representatives in place then the employer must
arrange elections. It is the employer’s responsibility to decide how many
representatives need to be elected so that the interests of all affected employees
are represented. It is also for the employer to decide whether the affected
employees will be represented as one workforce or different groups.
The candidates for employee representatives must be employees affected by the
transfer. No employee affected by the transfer should be unreasonably excluded
from standing for election and all affected employees are entitled to vote.
Affected employees include those who may not be transferring but could be
affected by the transfer in any event.
If the affected employees refuse or fail to elect representatives, and there is no
recognised trade union, the employer is require to inform and consult all affected
employees on an individual basis.
Rights of employee representatives
Appropriate representatives have certain rights and protections to enable them to
carry out their roles. They should (i) be given a reasonable amount of time off
with pay during normal working hours to carry out their representative duties, (ii)
have access to those employees affected by the transfer, and (iii) be provided
with appropriate accommodation and facilities to enable them to carry out their
role as representatives. Appropriate representatives cannot be subjected to any
detriment because of their status or activities as a representative and if
dismissed, their dismissal will be automatically unfair.
9Employee liability information
The transferring employer must provide to the receiving employer the following
information for every transferring employee:
the employee’s name;
the employee’s age;
the details required to be provided to the employee under section 1 of the
Employment Rights Act 1996;
any collective agreements which apply to the employee;
any disciplinary action taken against the employee within the previous
two years;
any grievances raised by the employee within the previous two years;
any legal action taken by the employee against the employer within the
last two years; and
any potential legal action that the employer reasonably believes the
employee might raise.
The above information should be provided to the receiving employer at least 2
weeks before the date of the transfer.
103
Dependant’s
Leave
11DEPENDANT’S LEAVE
The right to dependant’s leave
The right to dependant’s leave is granted to employees. It is intended to cover
sudden, unforeseen matters and is unpaid.
The purpose of dependant’s leave
The purpose of dependant’s leave is to enable employees to deal with
emergencies involving dependants. Emergencies could include such matters as
when a dependant falls ill or has been involved in an accident, an unexpected
disruption or breakdown of care arrangements for a dependant or to deal with an
incident involving the employee’s child during school hours. Dependant’s leave is
not for things known about in advance.
Who is a dependant?
A dependant is defined as the employee’s partner, child, parent or someone who
lives with the employee as part of their family. For example, this could be an
elderly aunt or grandparent who lives in the employee’s household. It does not
include tenants or boarders living in the family home or somebody who lives in the
household as an employee, for example a live-in housekeeper.
In cases of illness, injury or where care arrangements break down, a dependant
may also be someone who reasonably relies on the employee for assistance.
This may be where the employee is the primary carer or the only person who can
help in an emergency.
How much leave can be taken?
Employees have the right to take a reasonable period of time off work. How
much time is reasonable is not set out in law and would depend on the
circumstances of the case. However, anything more than two days is likely to be
unreasonable.
Employees must tell their line manager as soon as possible about the absence,
the reason for it and how long they expect to be away from work. If they are
prevented from doing so because of the nature of the emergency, they must
explain the reason for the absence on their return to work.
124
Discipline
13DISCIPLINE
An employer is required by law to provide employees with a copy of its
disciplinary rules and procedure within two months of employees starting work.
The procedure should give examples of what the employer considers to be
unacceptable conduct and such conduct can cover a broad spectrum of
behaviour. This could range from less serious matters such as poor timekeeping,
unsatisfactory attendance or unauthorised use of telephones to the most serious
of misconduct such as theft, violence or downloading pornography.
Investigation
All allegations of misconduct should be thoroughly investigated. The investigation
should be carried out by someone who is senior to the employee and in certain
cases, it may be necessary to suspend the employee while the investigation is
underway. Suspension should always be with pay and for the shortest amount of
time possible. The suspension should be confirmed to the employee in writing
and the employee should be given an indication as to how long the investigation
is likely to take.
Disciplinary meeting
The employee should be notified of the disciplinary meeting in writing. The letter
should set out the specific allegations and should provide sufficient information to
enable the employee to prepare answers to the allegations. The letter should
also give (i) an indication of the likely disciplinary sanction if the allegations are
upheld, (ii) the details of the disciplinary meeting and (iii) inform the employee of
their right to be accompanied by a union official or a work colleague of their
choosing. The employee would normally be provided with copies of any written
evidence such as witness statements before the disciplinary meeting.
The disciplinary meeting should be held without unreasonable delay. The person
chairing the meeting should, wherever possible, have had no involvement in the
investigation. The employer should be represented at the disciplinary meeting by
the person who carried out the investigation.
The case against the employee should be explained and the employee given an
opportunity to respond. Witnesses may be called to give evidence and the
employee should be given a reasonable opportunity to ask questions, present
evidence and call witnesses of their own. The person accompanying the
employee should be allowed to address the meeting to put and sum up the
employee’s case. They should also be allowed to respond in general terms on
behalf of the employee but the companion does not have the right to answer
questions put to the employee.
If the employee’s chosen companion is unable to attend the meeting as first
arranged then the employee is entitled to ask for a postponement. The employee
14should provide the employer with alternative dates for the re-arranged meeting
which are within five working days of the original date.
Disciplinary sanctions
The person chairing the disciplinary meeting should decide whether there has
been misconduct or not. If there has, it is for the chairperson to decide what
disciplinary sanction should be imposed. These can include a verbal warning, a
first written warning, a final written warning or dismissal.
A written warning should contain a summary of the misconduct and set out the
consequences of future repetition. The warning should also set out the required
improvements and the consequences of failure to improve. A copy of the written
warning should be kept on the employee’s personnel file for a specified period
and the warning itself should state how long that period will be.
It is not necessary for an employer to always issue a verbal warning first. In
cases of serious misconduct, dismissal may be the only appropriate sanction.
The employee would usually be dismissed without notice.
The employee should be notified of the disciplinary sanction as soon as possible.
This can be at the end of the disciplinary meeting or afterwards. Either way, the
decision should be confirmed in writing as soon as is reasonably practicable. If
the employee is dismissed then dismissal can only be effective when the
employee is actually notified of the dismissal.
Appeals
Employees have the right to appeal a disciplinary sanction. The right to appeal
should be set out in the letter informing the employee of the disciplinary sanction.
It is normal to require the employee to set out their appeal in writing within five
working days of receiving written confirmation of the disciplinary sanction.
If the employee chooses to appeal then an appeal meeting should be arranged as
soon as is reasonably practicable. The meeting should be chaired by someone
who has had no previous involvement in the disciplinary proceedings.
The employee has the right to be accompanied by a trade union official or work
colleague of their choosing. The companion has the right to address the appeal
meeting in the same way as they have to address the disciplinary meeting.
If the employee is unable to attend the appeal meeting because of the
unavailability of their chosen companion then they should provide the employer
with alternative dates for the meeting within five working days of the original
meeting date.
The outcome of the appeal can be notified to the employee at the end of the
meeting or afterwards. In either event, the appeal outcome should be confirmed
to the employee in writing as soon as is reasonably practicable. The decision at
the appeal stage is final.
155
Equality and
Diversity
16EQUALITY AND DIVERSITY
Equality relates to the treatment afforded to employees irrespective of their
individual characteristics. It is covered by a legal framework which makes it
unlawful to discriminate against an employee because of certain protected
characteristics.
Diversity is a broader concept than equality. It relates to recognising, respecting
and valuing the differences of each employee and the contribution those
differences can make to the success of the employer’s business.
Protected characteristics
The law outlaws discrimination on the grounds of 9 protected characteristics.
These are:
(i) age;
(ii) disability;
(iii) gender reassignment;
(iv) marriage and civil partnership;
(v) pregnancy and maternity;
(vi) race;
(vii) religion or belief;
(viii) sex;
(ix) sexual orientation.
Forms of discrimination
The law identifies a number of different forms of discrimination.
(i) Direct Discrimination - less favourable treatment of a person because of
a protected characteristic.
(ii) Indirect Discrimination - a provision, criterion or practice applied to a
person with a protected characteristic and which puts that person at a
particular disadvantage when compared to persons who do not have the
protected characteristic and which cannot be objectively justified.
(iii) Harassment - unwanted conduct that violates a person’s dignity or
creates an intimidating, hostile, degrading, humiliating or offensive
working environment.
17(iv) Victimisation - subjecting a person to a detriment because they have
done a protected act. Protected acts are (i) bringing proceedings under
the Act; (ii) giving evidence or information in connection with
proceedings under the Act; (iii) doing any other thing for the purposes of
or in connection with the Act; (iv) making an allegation (whether or not
express) that a person has contravened the Act.
(v) Failure to make Reasonable Adjustments – not taking such steps so as
to prevent a disadvantage to disabled persons when compared with non-
disabled persons.
(vi) Discrimination by Association – less favourable treatment of a person
because they are associated with a person with a protected
characteristic.
(vii) Discrimination by Perception – less favourable treatment of a person
because of the perception of a protected characteristic.
(viii) Discrimination arising from Disability - less favourable treatment of a
disabled person arising from their disability.
Equality and diversity – an employer’s responsibilities
Employers should have in place policies and procedures to ensure that all
employees are treated fairly and equally. Treatment of employees should be
consistent with the employee’s aptitudes, skills and abilities and any form of
discrimination should not be tolerated.
Employers should consider taking positive action to address imbalances in the
workforce. For example, they may seek to encourage applications for
employment from a particular under-represented group. Potential applicants
should be given clear and accurate information about a vacancy through job
descriptions and person specifications which include only requirements that are
necessary and justifiable for the effective performance of the job.
No disabled applicant should be considered unsuitable or less suitable for
appointment simply because they are disabled. Full consideration should be
given as to whether reasonable adjustments can be made to counteract the effect
of their disability upon their suitability for employment.
All new employees should receive induction training within one month of starting
work to give them an understanding of the employer’s organisation and its
policies and practices. Regular and appropriate training should be provided to all
employees to enable them to perform their jobs effectively and to ensure that
they have the best opportunities for advancement. Employers should consult
with their disabled employees to ensure that reasonable adjustments are made
so as to enable them to work safely and effectively. Outside specialists could be
consulted, where appropriate.
Men and women should receive equal pay for the same work and for work rated
as equivalent or of equal value. Staff facilities and services shall be equally
18available to all employees and where, for reasons of space and cost, this cannot
be achieved, reasonable alterations should be considered.
Reasonable adjustments should be made to enable a disabled employee to carry
out their job. This could include the provision of specialist equipment, job re-
design, re-training, flexible hours, or re-deployment. Employers should ensure
that all reasonable measures are taken to retain disabled employees in
employment. Once an adjustment has been made, it should be reviewed at
agreed intervals to assess its continuing effectiveness.
All aspects of policies and procedures should be kept under constant review.
Employee audits should be carried out annually to establish the composition of
the work-force and action taken to address any imbalances. Any records of
audits should be kept anonymously
Equality and diversity – the employee’s responsibilities
Whilst the responsibility for creating and monitoring a culture of equality and
diversity rests with the employer, the success of any policy relies on every
employee playing their part.
Every employee should comply with measures that are introduced to ensure
equality of opportunity and non-discrimination. They should participate in any
equality and diversity training and those individuals with line management
responsibility for other employees should not discriminate when applying policies
and procedures.
No employee should induce or attempt to induce another employee or trade
unions or management to discriminate. Likewise, no employee should victimise
another on the grounds that they have made complaints or provided information
about discrimination or harassment and no employee should harass, abuse or
intimidate another employee on any grounds.
Employees must recognise that unlawful and discriminatory conduct will be
considered as gross misconduct, for which the only appropriate sanction can be
dismissal.
196
Flexible
Working
20FLEXIBLE WORKING
The right to flexible working
The right to flexible working is granted to employees who have been employed by
their employer for 26 continuous weeks. To qualify for flexible working, the
employee must:
(i) have or expect to have parental responsibility of a child aged under 17 or
a disabled child under 18 who receives Disability Living Allowance; or
(ii) be the parent, guardian, special guardian, foster parent, private foster
carer or the holder of a residence order, or the spouse, partner or civil
partner of one of these and are applying to care for the child; or
(iii) be the person who cares for, or expects to be caring for, an adult who is
a spouse, partner, civil partner or relative or who lives at the same
address as the employee.
Flexible working
Flexible working involves a permanent change to an employee’s normal working
pattern. It could include such things as:
part time hours;
flexi time;
annualised hours;
compressed hours;
job sharing;
working from home.
Procedure for requesting flexible working
An employee can make only one application in any 12 month period. The
application should be made well in advance of when the employee wants the
changes to take effect and must be in writing and dated.
The request should state that the application is made under the statutory right to
request a flexible working pattern. It should set out the details of the flexible
working pattern requested and include the date from which the employee wants
the changes to start. The employee must explain what effect they believe the new
working pattern would have on the employer and how any effects might be dealt
21with. The request should state whether the employee has made a previous
application, and if so, when.
Within 28 days of receiving the written request, the employer must set up a
meeting with the employee to explore the requested work pattern and to discuss
how it might be accommodated.
Within 14 days of the date of the meeting, the employer must write to the
employee to either agree the new work pattern and a start date or set out clear
grounds as to why the application cannot be accepted and the reasons why the
grounds apply in the circumstances.
The employer is allowed to refuse a flexible working request if one or more of the
following grounds apply:
the burden of additional costs;
a detrimental effect on ability to meet customer demand;
inability to re-organise work among existing staff;
inability to recruit additional staff;
a detrimental impact on quality;
a detrimental impact on performance;
insufficient work during the periods you propose to work;
planned structural changes.
The employee has the right to appeal a refusal of their request for flexible
working. Any appeal should be submitted to the employer in writing within 14
days of the employer’s decision being notified to the employee. The employer
must hold an appeal meeting within 14 days of receiving the employee’s appeal
letter and must notify the employee of the outcome of their appeal within 14 days
of the appeal meeting.
227
Grievances
23GRIEVANCES
Employees who have a grievance should raise that grievance with the person
concerned in the first instance. If this does not resolve the matter, or the
employee feels unable to speak to the person concerned, they should raise their
grievance with a manager who is not the subject of the grievance.
Grievances are normally raised in writing and should give the employer sufficient
details to enable the employer to investigate the grievance. However, employers
should recognise that not all employees can properly express themselves on
paper and an employer should consider alternative means of submitting a
grievance.
The employer should arrange for the employee’s grievance to be investigated
without delay. Once that investigation has been concluded, a meeting should be
held with the employee to discuss the grievance.
Grievance meeting
The grievance meeting should be chaired by someone who has not been involved
in the investigation. The employee is entitled to be accompanied by a trade union
official or a work colleague of their choosing. The employee should be given an
opportunity to set out their grievances and the investigating officer should explain
the outcome of his investigation. The person chairing the meeting should decide
on what action is appropriate. It may well be that the meeting needs to be
adjourned so that further investigations can be carried out.
At the end of the grievance meeting, the chairperson should decide whether the
employee’s grievance is upheld, and if so, what action should be taken next. The
decision should be confirmed to the employee in writing and the letter should also
confirm the employee’s right to appeal that decision.
Appeals
If the employee chooses to appeal the outcome of the grievance meeting, they
should do so in writing, setting out the reasons for their appeal.
An appeal meeting should be arranged as soon as is reasonably practicable. The
person chairing the meeting should have had no previous involvement in the
procedure and the employee has the right to be accompanied by a trade union
official or a work colleague of their choosing. If the chosen companion is unable
to make the meeting then the employee must provide the employer with
alternative dates for the meeting within five days of the original meeting date.
The outcome of the employee’s appeal can be notified to the employee at the end
of the meeting or afterwards. In either case, it should be confirmed in writing to
the employee as soon as is reasonably practicable. The decision at the appeal
stage is final.
248
Maternity
Leave
25MATERNITY LEAVE
The right to maternity leave
Employees are entitled to 26 weeks ordinary maternity leave irrespective of the
length of service or numbers of hours worked. To qualify for ordinary maternity
leave, the employee must:
by the end of the 15th week before the week of expected childbirth, notify
the employer of the pregnancy, the expected week of childbirth and the
date on which the employee intends their ordinary maternity leave to
start;
produce for inspection a certificate from a registered medical practitioner
or registered midwife stating the expected week of childbirth.
Employees who are entitled to ordinary maternity leave are automatically entitled
to a further 26 weeks additional maternity leave.
Antenatal appointments
Employees are entitled to take a reasonable amount of time off work in order to
attend appointments for antenatal care. Employers can require those employees
to produce proof of the antenatal appointment and time off should only be
requested if it is not possible to arrange the antenatal outside of working hours.
Attendance at authorised appointments should be paid time off work.
Commencement of maternity leave
Maternity leave commences on the day the employee notifies the employer of the
intended start date. This can be any time after the start of the 11th week before
the expected week of childbirth. The start date can be earlier provided the
employee gives the employer at least 28 days notice in writing of the new start
date. Likewise, the employee can delay the start of her maternity leave provided
she gives the employer at least 28 days notice in writing before the original
proposed start date.
Continuation of terms and conditions of employment
During maternity leave, an employee’s contract of employment continues. She is
entitled to the benefit of the terms and conditions which would have applied if she
had not been absent due to pregnancy or having given birth, expect to wages.
Conversely, the employee is also bound by their obligations under the contract of
employment subject to the right to take maternity leave.
26Keeping in touch days
During maternity leave, an employee may attend work for up to 10 days as
‘keeping in touch’ days. Employees do not have a right to be paid for these days
but if they are paid, this may affect any maternity benefit. An employer cannot
insist that an employee on maternity leave attends work as keeping in touch days
and nor can the employee be subjected to any detriment if they choose not to
attend. Any keeping in touch days worked will not extend the maternity leave.
Returning to work after maternity leave
An employer must assume that an employee is taking the full 52 weeks maternity
leave unless notified otherwise. If the employee wishes to return to work before
the end of her maternity leave (both ordinary and additional), she must give her
employer eight weeks notice of the return to work date. If not, the employer can
postpone the return to work so that eight weeks notice has been given, provided
that the proposed date of return is no later than the date on which the maternity
leave would otherwise have ended.
On returning to work at the end of ordinary maternity leave, an employee is
entitled to return to the job she was doing before the maternity leave started, on
no less favourable terms. If returning to work at the end of additional maternity
leave then the employee has the right to return to the job she was doing before
her maternity leave, provided it is reasonably practicable for the employer to let
her return to that job. If not, the employee has the right to return to another job
which is both suitable and appropriate, and on no less favourable terms than the
job she was doing before the maternity leave commenced.
Pay during maternity leave
Employees do not have the right to receive their contractual pay during maternity
leave. They are entitled to receive statutory maternity pay (SMP) and in order to
qualify for SMP, the employee must:
be pregnant or have had the baby by the beginning of the 11th week
before the expected week of childbirth;
be earning more than the lower earnings limit for National Insurance
payment purposes; and
have given the employer notification of the pregnancy.
SMP is payable for a maximum period of 39 weeks and is subject to income tax,
National Insurance contributions and any other deductions which the employer
can lawfully make.
For the first six weeks of maternity leave, the rate of SMP is 90% of the average
weekly earnings. For the remainder of the SMP qualifying period, the rate is the
statutory rate or 90% of the average weekly earnings, whichever is the lesser. If
27an employee does not qualify for SMP then they may be able to claim maternity
benefit.
Health and safety Issues
An employer is required to carry out a risk assessment for all pregnant
employees. If the pregnant employee’s job poses a risk to her health or that of
the unborn child, the employer must make arrangements to eliminate those risks.
These could include altering the employee’s working hours, altering her place of
work or temporarily transferring her into a safer job. If risk elimination is not
possible then the employer can suspend the employee on full pay until she is no
longer at risk. The alternative arrangements may continue after the birth of the
child if the employee returns to work and is still considered to be at risk.
Should it be necessary to suspend a pregnant employee from work then maternity
leave would ordinarily start at the beginning of the sixth week before the expected
week of childbirth. Assuming they are eligible, SMP would start at the same time.
289
National
Minimum Wage
29NATIONAL MINIMUM WAGE
Entitlement to the National Minimum Wage (NMW)
Workers who ordinarily work in the United Kingdom and are over school leaving
age are entitled to be paid at least the NMW. It makes no difference when the
worker is paid, how they are paid, the number of hours they work or whether they
work at the employer’s premises or not. Furthermore, a worker cannot agree to
be paid less than the NMW and any contract which claims to show such an
agreement will have no legal effect.
Calculating the NMW
A worker’s pay for NMW purposes is calculated over a pay reference period. This
is the period of time that the worker is actually paid for. If the worker is paid
weekly then the pay reference period is one week; if they are paid monthly then it
is one month.
The pay reference period can never be longer than one month. If an employer
pays their workers at longer intervals, for example once a quarter, then the worker
must still get paid the NMW each month during that quarter.
For pay calculation purposes, workers are classified as either (i) time workers, (ii)
salaried workers, (iii) output (piece) workers, or (iv) unmeasured workers. The
method for calculating NMW pay is different for each category.
For time workers: divide the amount paid in the pay reference period by
the number of hours worked in the pay reference period.
For salaried workers: calculate the contracted hours of work for a full
year, calculate the average number of hours for each pay reference
period, calculate the amount of pay in each pay reference period, divide
the amount of pay for the pay reference period by the number of hours in
the pay reference period.
For output workers: multiply the amount paid per task or piece by the
number completed in the pay reference period, divide the amount paid in
the pay reference period by the number of hours worked in the pay
reference period.
For unmeasured workers: divide the amount paid in the pay reference
period by the number of hours worked in the pay reference period.
Pay that counts towards the NMW
The NMW is calculated against gross pay, before the deduction of income tax and
National Insurance contributions. Gross pay includes a worker’s basic pay plus
other amounts such as commission, performance-related pay or bonuses.
30Pay that counts towards the NMW may not just be the pay a worker receives
during the pay reference period. It can also include pay which they earn during
that period but do not receive until the next. For example, a worker is paid
monthly and works overtime in July but does not get paid for that overtime in
August - the overtime pay received in August will count towards the July pay
when calculating whether the worker was paid the NMW in July.
Pay that does not count towards the NMW
Some payments will not count towards the NMW. The following should be
deducted from gross pay before making any calculation:
loans and advances of wages;
pension payments and retirement lump sums;
redundancy payments;
rewards under staff suggestion schemes;
premium payments, for example payments for working bank holidays;
allowances, for example payments for working ‘on call’;
tips, gratuities, service charges and cover charges;
Deductions and payments which reduce the NMW pay
Some deductions from pay or payments made to the employer are taken into
account when calculating NMW pay. These include:
refunds of any money spent in connection with work, for example the
cost of purchasing tools or uniform;
refunds of expenses incurred doing work, for example travel costs;
deductions to cover the cost of items supplied by the employer which the
worker needs to carry out the work, for example tools or uniform;
deductions for goods and services provided by the employer to the
worker, for example work to home transport.
Deductions and payments which do not reduce NMW pay
Certain deductions from pay or payments made to the employer are ignored when
calculating NMW pay. These include:
penalties for misconduct, provided the penalties are contractual;
31 paying back an advance of wages;
paying back an accidental overpayment of wages;
the costs of any shares or securities which the worker has chosen to buy
in the firm;
money the worker chooses to have deducted from their pay, for example
a pension contribution or trade union subscription, as long as the
deduction is not required as part of the workers work and is not for the
employer's own use and benefit;
payments the worker chooses to make to their employer to buy goods or
services from the employer, for example wages spent on meals in the
staff canteen.
3210
Parental
Leave
33PARENTAL LEAVE
The right to parental leave
The right to parental leave is granted to employees who are the mother or father
of a child or a person with formal parental responsibility for a child. Parents of
children under the age of 5 are entitled to take unpaid time off work to care for a
child. The employee must have at least 1 year’s continuous employment before
they can take parental leave.
If the child is adopted, an employee is entitled to take leave until the fifth
anniversary of the child’s placement with them or until the child’s 18th birthday,
whichever comes first. If the child is disabled, leave can be taken for children until
the child’s 18th birthday. A disabled child is a child for whom disability living
allowance is awarded.
Parents who are separated and do not live with the child only have the right to
parental leave if they retain formal parental responsibility. Foster parents do not
have a right to parental leave. The employer is entitled to require the employee to
provided evidence that they are the parent of the child for whom leave is
requested. Such evidence would be the birth certificate or copies of the adoption
papers and for a disabled child, a copy of the letter confirming entitlement to
disability living allowance.
The amount of leave
The amount of leave is 18 weeks. Parental leave is specific to the child and not
employment. The employer is therefore entitled to make enquiries of previous
employers to find out how much leave, if any, an employee has already taken.
Taking parental leave
Employees can take parental leave as soon as the child is born or placed for
adoption, provided they have completed 1 years’ continuous employment. They
can take leave in blocks of one week, up to a maximum of four weeks in any one
leave year. Employees must give the employer at least 21 days notice but the
employer can postpone the leave for up to 6 months where the business could
not cope. However, leave cannot be postponed when the employee gives notice
to take leave immediately after the child is born or is placed with the family for
adoption. Parents of a disabled child can take leave a day at a time or longer if
needed.
3411
Paternity
Leave
35PATERNITY LEAVE
Ordinary Paternity Leave
The right to ordinary paternity leave is granted to employees who satisfy the
following conditions:
are the biological father of the child or the mother’s husband or partner
(including same-sex relationships);
where the child is adopted, be married to or be the partner of the child’s
adopter (including same-sex relationships) or be the child's joint adopter
but not taking statutory adoption leave;
have or expect to have responsibility for the child’s upbringing and if not
the child’s father, the main responsibility apart from the mother;
have worked continuously for the employer for 26 weeks prior to either
(i) the 15th week before the expected week of childbirth, (ii) the end of
the week the adopter of a child is matched with the child if adopting
within the UK, or (iii) the end of the week the adopter of a child is
notified of adoption if adopting from overseas.
An employee is entitled to two weeks ordinary paternity leave. They can either
take one week or two consecutive weeks but cannot take odd days. An
employee can decide whether to take just one week or a fortnight but they
cannot take two separate weeks.
Taking ordinary paternity leave
Employees should supply a completed SC3 or SC4 form as evidence of their
entitlement to paternity leave. Form SC3 applies for births and SC4 for
adoptions.
Employees must notify their employer of the expected date of childbirth. If
adopting a child within the UK, they must confirm when the child is expected to
be placed for adoption and the date on which the adopter was notified they had
been matched for adoption. Notification must be at least 15 weeks before the
expected week of childbirth or within seven days of being told by the adoption
agency that the adopter has been matched with a child. The employee must also
tell the employer the date of the birth or the actual date of adoption.
If adopting from overseas, employees must notify the employer in three stages:
Stage 1: Confirm the date on which the other or main adopter received
official notification and the date the child is expected to enter the
UK.
Stage 2: Give 28 days' notice of the actual date you want your ordinary
paternity leave to start.
36Stage 3: Confirm the date the child entered the UK within 28 days of the
child's date of entry.
In all cases, the employee must confirm whether they want one or two weeks'
ordinary paternity leave and when they want their leave to start. The start date
can be changed providing the employee gives at least 28 days’ notice.
Leave must be completed within eight weeks of the actual date of birth. If the
child is born early, leave must be taken within the period from the actual date of
birth up to eight weeks after the expected week of childbirth. If adopting within
the UK, leave must be completed within eight weeks of placement. If adopting
from overseas, leave must be completed within 8 weeks of the date the child
enters the UK. Only one period of leave is available irrespective of whether more
than one child is born as a result of the same pregnancy or placed for adoption
as part of the same arrangement.
Continuation of terms and conditions of employment
Employees are entitled to the benefit of their normal terms and conditions of
employment during paternity leave except for terms relating to wages.
Employees have the right to statutory paternity pay (SPP) if their average weekly
earnings are above the lower earnings limit for National Insurance contributions
and they comply with certain notification requirements. SPP will be paid for either
one or two consecutive weeks and the rate of SPP will be the same as the
standard rate of Statutory Maternity Pay.
Employees returning to work after paternity leave are entitled to return to the
same job they had before starting the paternity leave.
Additional Paternity Leave
In order to qualify for additional paternity leave, employees must be taking the
time off to care for a child who was born or placed for adoption on or after 3 April
2011. In the case of a birth, the child's mother must have been entitled to
Statutory Maternity Leave, Statutory Maternity Pay or Maternity Allowance. In the
case of an adoption, the child’s adopter must have been entitled to Statutory
Adoption Leave or Statutory Adoption Pay. In all cases, the mother or adopter
must have returned to work and stopped claiming any relevant statutory pay.
Additional paternity leave is for a minimum of 2 weeks and a maximum of 26
weeks. It can be taken any time between 20 weeks and one year after the child is
born or placed for adoption.
37Taking additional paternity leave
Employees should give the employer at least eight weeks’ notice in writing of
their intention to take additional paternity leave. They can do so by providing a
completed form SC7 (births), SC8 (UK adoptions) or SC9 (overseas adoptions).
The child's mother or the adopter must also sign a declaration stating:
their name, address and National Insurance number;
they were entitled to Statutory Maternity Leave or Statutory
Adoption Leave and either Statutory Maternity Pay, Maternity
Allowance or Statutory Adoption Pay if the employee is applying
for Additional Statutory Paternity Pay.
they have given notice of their intention to return to work and the
date they intend to return to work;
the start date of their Maternity Allowance, Statutory Maternity
Pay or Statutory Adoption Pay period if the employee is applying
for Additional Statutory Paternity Pay;
the employee is the only person taking additional paternity leave
in respect of the child; and
that they consent to the Company processing the information
given in the declaration.
The declaration must also state that the employee is either;
the father of the child,
the mother's spouse or partner or civil partner (including same-
sex relationships),
jointly adopting the child with their spouse or partner (including
same-sex relationships), or
the spouse or civil partner or partner (including same-sex
relationships) of an overseas adopter.
If an employee wishes to change the date of leave or decides not to take leave,
they must give the employer at least six weeks’ notice. If the employee wants to
return to work before the end of their additional paternity leave, they must give
the employer at least six weeks' notice of the new return date. If they do not give
this notice, the employer can insist they do not return to work until either the end
of the six week notice period or the original return date, whichever is earlier.
Keeping in Touch Days
Employees may attend work for up to 10 days as ‘keeping in touch days’ during
additional paternity leave. They do not have a right to be paid for these days and
38the employer cannot insist the employee actually attends work. Any keeping in
touch days worked do not extend additional paternity leave.
Continuation of employment terms
Employees are entitled to the benefit of their normal terms and conditions of
employment, except for terms relating to wages or salary, throughout additional
paternity leave. They are also entitled to return to the same job they had before
starting leave.
If during additional paternity leave it is not practicable for the employer to employ
the employee due to redundancy, the employee is entitled to be offered a suitable
vacancy as an alternative to redundancy. This alternative job must be offered on
terms no less favourable than the employee’s existing terms and conditions but
could be with a successor or associated employer.
If an employee becomes no longer eligible for additional paternity leave, for
example because their partner has not returned to work as planned, they must
tell the employer as soon as possible. If they do not give at least six weeks'
notice of the change in eligibility and it is not practical for the employer to
accommodate the change, the employer can insist the employee takes a period
of unpaid leave. This unpaid leave would start on the date the additional paternity
leave was due to start and would end either six weeks after the employee gives
notice they were no longer eligible or the date the leave was due to end,
whichever is earlier.
Additional statutory paternity pay
Employees may be entitled to receive Additional Statutory Paternity Pay (ASPP)
if they take additional paternity leave during their partner's 39 week statutory pay
or allowance period.
To qualify for ASPP, employees must earn at least the lower earnings limit for
National Insurance contributions and the mother or adopter must have returned
to work and stopped claiming statutory pay or allowance. There must also be at
least two weeks of unexpired statutory pay or allowance period remaining.
If employees do not qualify for ASPP, they have the right to take unpaid
additional paternity leave. Furthermore, any leave taken after the end of 39 week
statutory pay or allowance period will be unpaid.
3912
Performance
Management
40PERFORMANCE MANAGEMENT
Employers should recognise that during employment, an employee’s capability to
carry out their duties may deteriorate. This can be for a number of reasons, the
most common being either the job changes and the employee fails to keep pace
with the changes or the employee changes and can no longer cope with the work.
Employers should also recognise the difference between capability issues and a
deliberate or careless failure on the part of an employee to perform to the
standards of which they are capable. In such cases, this would be a disciplinary
matter rather than capability.
Appraisals
Performance appraisals are normally carried out once per year. The purposes of
such appraisals are to:
discuss achievements during the previous 12 months;
identify any shortfalls in achieving objectives and establish the reasons
why;
agree any changes to objectives and actions required to improve
performance and/or enable the employee to achieve your full job
potential;
consider any future training, development and career needs;
discuss opportunities for advancement or alternative work.
It is important that the employee contributes to the appraisal process so as to
make it a worthwhile exercise. The meeting should therefore be an open forum
where ideas and opinions can be exchanged and agreed conclusions reached.
A written record of the appraisal should be made and the completed appraisal
form should be viewed as a working document. It should be referred to and
reviewed during the year by both the employee and their line manager.
Training and support
Most performance issues can be dealt with through training and support. The
employer should discuss with the employee the required work standards and the
level of performance expected. Discussions should identify areas of concern,
establish the likely causes of poor performance and identify any training or
supervision needs. Targets for improvement should be set and a timescale for
review agreed.
41The employer should always be alive to the issue of whether the unsatisfactory
performance is related to a disability. If so, the employer is under a duty to
consider any reasonable adjustments that could be made to the job so as to
assist the employee in improving their performance.
Formal action
In cases where training and support does not lead to a satisfactory improvement
in performance, or where performance issues are more serious, the employer
may want to adopt a more formal procedure.
The employer should notify the employee in writing of concerns regarding their
performance. The employee should then be invited to a capability meeting to
discuss those concerns. The meeting would normally be chaired by the
employee’s line manager.
The purposes of the capability meeting are to:
set out the standards the employee has not met;
establish the likely causes of poor performance;
allow the employee to explain the poor performance and to ask any
relevant questions;
discuss measures to improve performance;
set targets for improvement and a timescale for a review;
establish whether there is any reasonable likelihood of the required
performance standards being met within a reasonable time,
if dismissal is being considered, discuss whether there is any
practical alternative to dismissal such as re-deployment either at
the same or a lower grade.
The employee should be given the opportunity to respond to the employer’s
concerns and put forward their reasons for the poor performance.
In the first instance, an employee would normally be given a written warning. The
written warning should set out the areas in which the employee has not met the
required performance standards, the targets for improvement, a timescale for
review and the likely consequences of failing to improve to the required standards
within the review period. A copy of the warning would be kept on the employee’s
personnel file for a specified period, subject to satisfactory performance.
If at the end of the review period, the employer is satisfied with the employee’s
performance then no further action will be taken. If the employer is not satisfied
then a further capability hearing should be held. If there has been a substantial
but insufficient improvement, the review period could be extended.
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