Here you'll find brief answers to some of the most commonly asked Human Resources questions. The advice and answers here are given as a general guidance only - if you would like to discuss any of the topics in more detail then please do not hesitate to get in touch. Please remember to seek professional HR or legal advice for your particular circumstances.
TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations.
It relates to preserving employees' terms and conditions when a business or undertaking, or part of one, is transferred to a new employer. This is relevant to any redundancy decisions where a business or part of it is transferred from one owner to another.
TUPE requires the outgoing employer and the incoming employer to share information and consult about the transfer of business activities with their respective employees. The law applies not just where there is a change of ownership but also where there is a change of contractor, for example if the contracted services of one company change to another provider. In these situations employees will have their emplouyment automatically transferred to the new owner or contractor on their existing terms and conditions of employment.
It is advisable to seek professional HR and legal support in TUPE situations.
What should an employer do if an employee fails to attend a disciplinary hearing? Both the employer and the employee should make every effort to attend the disciplinary meeting (this is included within the ACAS Code). Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer should make a decision based on the evidence available.
It is sensible for the employer to investigate the employee's reason for non-attendance, and reschedule the meeting at least once. Depending on the circumstances, you may need to reschedule more than once but you are not expected to do this indefinitely, even when the employee claims to be unwell.
It is important to get your communications to the employee correct here. Advise the employee of the importance of attending meetings and that continued failure to attend without good cause may lead to a decision being made in their absence.
Factors that the employer should consider when deciding what would be a reasonable course of action in relation to an employee who has repeatedly failed to attend a disciplinary meeting include Company policy and past precedent in this area; the employee's reason for non-attendance; the employee's disciplinary and work record, seniority and length of service; the severity of the disciplinary issue; and any medical opinion on the employee's ability to attend the meeting (ask the employee for consent to write to their GP to establish why they can’t attend a meeting, even if it was held, for example, at their home address).
If it is reasonable to do so, for example where there is no good cause for the employee's repeated non-attendance, the employer can hold the meeting in the employee's absence, taking into account any written representations from the employee, and any other available evidence, before it makes a decision. The employer should always set out the decision clearly and give the employee the right to appeal the decision.
The short answer is yes they can. There are a number of different ways someone who doesn't have the required length of service could bring a claim of "automatically" unfair dismissal, including dismissal for reasons of discrimination against a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation), for breaches or statutory rights, deductions from wages, health and safety issues and for dismissal as a result of whistleblowing.
It is likely that a tribunal (normally via a preliminary hearing) will have to assess if the individual has worker and emploment rights via legal tests in relations to the claim(s) brought. It is always advisable to seek professional HR and legal assistance when presented with a tribunal claim.
Where a tribunal makes an award of compensation for unfair dismissal the award will consist of a basic award and a compensatory award.
The basic award is calculated according to age, length of service and normal weekly pay (as it is with a statutory redundancy payment). Where the effective date of termination is on or after 6 April 2019, the maximum amount of a week's pay is £525.
A minimum basic award of £6,408 is payable where the employee was dismissed on grounds of trade union membership or activities, for carrying out legitimate health and safety activities as a health and safety representative, for carrying out functions as an occupational pension scheme trustee or for carrying out functions as an elected employee representative.
The employee may also be given a compensatory award, which is an amount the tribunal considers just and equitable in all the circumstances loss sustained by the applicant in consequence of the dismissal (for example including loss of wages, loss of benefits and loss of future earnings).
For more information see our article: https://embrace-hr.co.uk/news/employment-tribunals/
If your employee has 26 weeks service, they are legally entitled to make a flexible working request to change their hours of work. However, you are able to refuse the request if you have reasonable business grounds on which to do so (you should consider each request and document any reasons for refusal or where you have suggested a compromise).
The individual's request should be made in writing and include:
If you want to change an employees hours, it is always advisable that you consult with the employee(s) and gain their agreement. To suddenly and permanently change a regular shift pattern may be unfair and unlawful.
Check whether you have a policy on compassionate leave. Some employer's policies relating to bereavement give guidance on what is permissible time off following the death of a relative or close friend.
However, there is no legal entitlement to unpaid time off or paid time off to attend a funeral.
It is possible to discipline an employee for sickness absence but you should always check how this is represented in your organisation's Absence Policy.
You can include receiving penalties for persistent absence or for failing to follow the notification procedure. A robust Absence Policy is essential for any business. However, caution should be exercised where individuals have an underlying health condition or a disability. These types of cases should be handled fairly and reasonably, but no business can be expected to cope with high levels of absence indefinitely.
Talk to us if you would like to review any of your absence policies and processes, including return to work interviews, health investigations and capability considerations.
Employees are entitled to either one or two weeks' paternity leave. This is the same for multiple births. To be eligible, you must have a contract of employment and have been working for the same employer for 26 weeks by the end of the 15th week before the week your baby is due.
Your organisation may choose to offer enhanced paternity pay, but the minimum which must be paid is statutory paternity leave. A good source of information on this topic is the gov.uk website: paternity pay
During the first month of employment, you can terminate a person’s employment without notice, depending on what the contract of employment (or offer letter) says.
After one month’s service, you are legally obliged to give a weeks’ notice for dismissal. Again, check the contract to see if it improves on this statutory requirement.
This increases again after 2 years, and you will need to give a minimum of one week’s notice for each year of employment between 2 and 12 years and then 12 weeks’ notice if employed for 12 years or more.
However, always check what the employee’s contract says – it may be that contractually they are entitled to more than the statutory minimum, but you cannot give them less.
And whilst you can get rid of a short-service employee fairly quickly, we would always recommend following a fair procedure to dismiss them that is in line with best practice.
Be aware that whilst an employee with less than two years’ service can’t usually claim unfair dismissal, they can still claim for things such as wrongful dismissal, breach of contract and discrimination. And there is no time limit on being able to claim ‘automatic’ unfair dismissal for bringing a whistleblowing claim, so be very aware of the ‘warning bells’ if you think a disgruntled (ex)employee could have something to base a claim on.
It is a good idea to have your written disciplinary and performance management policy/procedures specifically exclude staff with less than two years' service. They can be managed, and if necessary dismissed, via the probationary policy. Our advice is to ensure your standard probationary period is six months and that you are prepared to extend it by up to three months if the employee hasn’t convinced you they are right for the job during this time.
Make good use of the probationary period – it’s a key period and should be actively used throughout probation – not just at the end. Meet with the employee during probation to make it clear that their performance isn’t good enough – don’t leave it until the very end of the 6 months. Be clear and specific enough about what the performance/conduct issues are and that their employment is at risk if improvement isn’t seen. This also applies to taking someone through a performance management or disciplinary process.
If you need help with contractual agreements, drafting policies, dismissal support (including chairing and note taking for meetings), independent investigations, preparing for tribunal claims or line manager training around difficult conversations, get in touch with us today.
It’s 1st April, no joke! If you are an employer, have you tackled all the 7 things recommended for you to do this month?