Common Questions

Here at Employment Legal Solutions Ltd we are frequently asked questions. As part of our aim to provide a premier class service for our customers, below is a list of questions and answers we feel may be helpful:

Please click on each question to reveal the answers

Contract of Employment Questions

• What is an employment contract and does it have to be in writing?

  All employees have a contract of employment. A contract exists as soon as an employee accepts an employer´s terms and conditions of employment.

• Does the contract need to be in writing?

  Except for apprenticeships, employees´ contracts need not be in writing. However, the law requires employers to provide most employees with a written statement of the main terms and conditions of employment.

• When must an employer provide the main terms and conditions statement?

  The Employment Rights Act 1996 requires employers to provide employees within two calendar months of starting work, with a written statement of the main terms and conditions of employment.

• What information should it contain?

  The statement should contain information on the following:

  • the employer's name
  • the place of work and the address of the employer
  • the employee's name
  • the date employment began
  • the date on which the employee´s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period)
  • where the employment is not permanent, the period it is expected to continue
  • where the employment is for a fixed-term, the date when it is to end
  • the job title
  • the amount of pay and the interval between payments
  • hours of work
  • holiday pay and entitlement
  • sickness and sick pay arrangements
  • pensions
  • whether a contracting out certificate under the Social Security Pensions Act 1975 is in force
  • notice periods
  • a note specifying any disciplinary rules and to whom employees can apply if they are dissatisfied with a disciplinary decision
  • a note on grievance procedures specifying to whom employees can apply to seek redress of any grievance
  • any collective agreements which directly affect the terms and conditions
  • where the person is required to work outside the UK for more than one month, the period he/she is to do so; the terms and conditions relating to his/her return to the UK.

  The written statement must set out the employee´s terms and conditions in full; it is not sufficient to refer employees to some other document, such as a collective agreement or a staff handbook.

  There are, however, certain exceptions to this rule. The written statement can refer the employee to some other easily accessible document for detailed information on:

  • disciplinary rules
  • particulars of sick pay terms
  • particulars of pension entitlements
  • terms relating to notice of termination of the contract (i.e. relevant statutory provisions or a collective agreement).
• What if I need to make changes to written statements?
  If there is any change to any of the terms and conditions set out in the written statement after it has been issued, you must give the employee a fresh written statement. The new statement must be issued not later than one month after the change. Where the change results from the employee being required to work outside the UK for more than one month, the new statement must be issued at the time the employee leaves the UK, if that is less than one month after the change.

Grievances Questions

• What are grievance procedures?
  They are procedures where an employee can raise grievances with management.
• Why are grievance procedures important?

  If grievances are not dealt with, they are likely to fester and result in bad employee relations. In some cases they may develop into major disputes.

  What is the statutory grievance procedure?

  • step one: inform the employer of the grievance in writing
  • step two: meet to discuss the grievance and
  • step three: hold an appeal, if requested.

  Employment tribunals may adjust any award of compensation by between 10 and 50 per cent for failure by either party to follow relevant steps of the statutory procedure.

• How should grievance procedures operate?
  Grievance procedures should aim to settle a grievance fairly, quickly and as closely as possible to the point of origin and help to prevent minor disagreements developing into more serious disputes. For this reason, it is usually advisable for the first stage to be between the employee and his or her immediate supervisor or line manager. This can also help to maintain the authority of the supervisor and can often lead to the issue being resolved directly between the parties without the involvement of a representative. Grievance procedures should be clearly communicated to all employees. If a dispute is not settled at the first stage, the procedure should provide for employees to have their grievance heard at further agreed levels. The number of levels will depend on the size and nature of the organisation and in small firms the second and final stage will frequently be the employer. Larger organisations may have one or more stages.
• Does the employee have a right of appeal?
  Yes. This right to appeal should be built into each stage.
• Does the employee have a right to be accompanied by another employee or trade union representative at any grievance hearing?
  Only in relation to legal duties of the employer in relation to the worker, e.g. contractual commitments.

Holiday Entitlement Questions

• What is the holiday entitlement my employees are entitled to?

  The legal requirements

  Entitlement to holidays and holiday pay is determined by the contract of employment but also subject to the minimum provisions laid down in the Working Time Regulations 1998 (as amended). Workers covered by the Regulations (including part-timers, and most agency and freelance workers) have the right to:

  • 5.6 weeks´ paid leave each year; and
  • payment for untaken statutory leave entitlement on termination of employment.

  Statutory annual leave entitlement

  This increased from 4.8 weeks to 5.6 weeks (capped at 28 days) on 1 April 2009. Many workers already get contractual leave which is more than 28 days. Their holiday entitlement will not change as a result of the amendments to the Working Time Regulations.

• Should the holiday entitlement be put in writing?
  Most employees are legally entitled to a written statement of main terms and conditions of employment which must include holiday rights. The statement must detail holiday entitlement, including public holidays, and give sufficient information to allow any entitlement to accrued holiday pay on the termination of employment to be calculated precisely.
• How do I calculate holiday pay?
  There are many different methods of calculating holiday pay. Salaried employees usually receive their normal rate of pay, including any additions such as location or shift allowance. Holiday pay for manual workers varies widely, from basic pay to average earnings calculated over a specified period prior to the holiday.
• What about extended leave without pay?

  Apart from parental leave, and time off for emergency reasons involving dependants, as set out in the Employment Relations Act 1999, there is no general statutory right to extended leave without pay and whether it is granted is a matter for agreement between employer and employee, or where appropriate with trade unions. It may help to have a policy on extended leave and if so, the following points should be borne in mind:

  • the policy should apply to all employees.
  • any conditions attached to the granting of extended leave should be carefully explained to the employee and the employee´s signature obtained as an acknowledgement that he or she understands and accepts the conditions.
  • if an employee fails to return on the agreed date, this should be treated as any other failure to abide by rules and the circumstances should be investigated in the normal way as fully as possible.
  • care should be taken that foreign medical certificates are not treated in a discriminatory way.
  • before deciding to dismiss employees who overstay leave, their age, length of service, reliability and any explanations given should be taken into account.
• What about other time off?

  Employees have a statutory entitlement to time off for the following:

  • antenatal care
  • maternity leave
  • paternity leave
  • adoptive leave
  • time off for family emergencies
  • to look for work if declared redundant with at least two years´ service
  • public duties such as jury service
  • trade union duties and activities

Working Hours Questions

• What are the rules on hours my employees should work and how can I get flexibility without falling foul of the law?

  There are many pressures which are prompting employers to change traditional working patterns. The following paragraphs describe various patterns of hours of work that some organisations are using to provide greater employee flexibility. The Working Time Regulations 1998 set limits on how many hours many people can legally work.

  Working parents

  Parents of young and disabled children and carers of adults have the right to request a flexible working pattern and employers will have a legal duty to consider such requests seriously and to refuse them only if there are clear business reasons for doing so.

  Annual hours contracts

  This is a system whereby the period of time within which full time employees must work is defined over a whole year; for example, an average 38-hour week becomes 1,732 annual hours, assuming five weeks of holiday entitlement. Once the yearly hours of work have been agreed these hours are usually distributed in a schedule.

  Some of the hours may be held in reserve to be used when the employer and employee agree, or they may all be used within the schedule. It will also be necessary to determine the arrangements for public holidays and overtime. Annual hours can be applied to all employees, including day workers and white-collar employees, but in practice the system is often restricted to shift workers.

• Why introduce annual hours?

  An annual hours system may be considered appropriate for one or more of the following reasons:

  • to assist in the reduction of the working week
  • to reduce, abolish or control overtime
  • to cope with seasonal variations and/or peaks and troughs in demand
  • to maximise productivity
  • to help introduce technological change
  • to harmonise terms and conditions of employment

  The advantages and disadvantages of annual hours

  For employers annual hours can provide greater employee flexibility, reduce overtime and maximise productivity and efficiency. The benefits for employees can include improved basic pay and progress towards salaried status. Most annual hours agreements specify that employees can be asked to work extra hours at short notice which may be beneficial to employers but can reduce the freedom of employees to plan their leisure.

  Introducing an annual hours system

  Before introducing an annual hours system, employers should explain to employees and their representatives what is meant by the concept of annual hours and consult with them fully on any proposals.

  Flexible working hours

  A system of flexible working hours gives employees some choice over the actual times they work their contracted hours.

  Most schemes have a period during the day, known as core time, when employees must be present. A typical core time would be 10:00–16:00.

  Employees may choose their starting and finishing times within flexible bands at the beginning and end of each day. These bands are typically 08:00–10:00 and 16:00–18:00 but there is wide scope for variation depending on the core time, the hours the work place is open and the nature of the business. Some schemes also have a flexible band during the middle of the day so that employees have some choice over the time they take their lunch break.

  Contracted hours are made up by employees working the core time plus hours of their choice during the flexible bands over an agreed period. This period is known as the accounting period and is typically four weeks long. Some schemes allow for an excess or deficit (within set limits) to be carried over to the next accounting period. Hours are credited for absences such as sickness or holidays.

  Overtime

  Unless specifically provided for in the contract of employment, any requirement to work overtime is a matter for agreement between employer and employees either directly or through their trade union representatives.

  The sensible use of overtime can result in a more flexible workforce. For example, it can be used to:

  • undertake work such as maintenance that can only be done outside production hours
  • deal with temporary bottlenecks
  • meet temporary increases in demand
  • cover absence or labour shortages
  • meet customer requirements

  The main arguments against overtime

  The regular use of high levels of overtime is expensive. It may cause problems by reducing management´s ability to cope with unexpected demand and may act as a disincentive to complete work during normal working hours. It may also affect an employee´s social life and, perhaps, lead to health problems. Payment for overtime is variable and an overdependence on it may cause problems when it is no longer available.

• How should overtime pay be calculated?

  The basic hourly rate is often used as the basis for calculating overtime. Time and a third or time and a half is commonly paid for overtime on Mondays to Saturdays and double time on Sundays and bank holidays.

  The main arguments against overtime

  Any reduction in overtime should be planned in consultation with employees and their representatives. Attempts to control overtime may include:

  • inserting a clause in an agreement to reduce overtime
  • giving time off in lieu
  • increasing the basic hourly rate to compensate for any reduced overtime
  • reducing hours but deferring the time at which overtime rates start, so that the first hour or two of overtime is at flat rate
  • introducing annual hours.

  Employers ought to consider other methods of dealing with increased workloads, before using overtime.

  Shiftwork

  Shiftwork is a pattern of work in which one employee replaces another on the same job within a 24-hour period. Shiftworkers normally work in crews, which are groups of workers who make up a separate shift team. In most shift systems, each crew will regularly change its hours of work and rotate from morning, to afternoon, to night shift, depending on the shift system. Continuous shift systems provide cover for 24 hours, seven days a week. Non-continuous or discontinuous shift systems may provide cover, for example, for five 24-hour periods out of seven days, or for 12 hours out of 24.

Absenteeism Questions

• How do you deal with absenteeism?

  An unduly high level of absence is costly and can adversely affect your business´s efficiency and morale which may in turn lead to even higher absence levels. All absences should be investigated promptly in order to be fair to employees and to minimize any adverse effects on their colleagues.

  Dealing with unauthorised absence and lateness

  Organisations should:

  • require absent employees to notify their supervisor by telephone, wherever possible, by a given time each day.
  • ensure that supervisors discuss the reasons for absence or lateness with employees when they return to work.
  • determine whether the nature of the job contributes to absence – for example, workload which is excessive or stressful – and examine the possibility of changing the job or providing alternative duties.
  • identify persistent offenders through regular monitoring of records, provide counselling or take disciplinary action, as appropriate, after investigation.

  Dealing with short-term sickness

  Organisations should:

  • have clear rules on the provision of certificates to cover sickness absence.
  • ensure employees are seen by their supervisor on return to work.
  • ask the employee to consult a doctor where there is no medical evidence to support frequent self certificated absences.
  • ensure that employees are told if their level of sickness absence is putting their jobs at risk.

  Dealing with long-term sickness

  Organisations should:

  • maintain regular contact with the employee.
  • seek a medical opinion from the employee´s GP or from the company doctor.
  • consider whether alternative work is available.
  • keep the employee fully informed if employment is at risk.
  • consider how long the job can be kept open.
  • ensure that, where employees are dismissed, they receive either wages throughout the period of notice to which they are entitled or wages in lieu of notice as a lump sum.
  • inform the employee of any right of appeal.

  Disability Discrimination Act 1995

  The Disability Discrimination Act 1995 makes it unlawful for an employer to treat a disabled person less favourably for a reason relating to their disability, without a justifiable reason. Employers are required to make a reasonable adjustment to working conditions or the workplace where that would help to accommodate a particular disabled person. Disability is defined under the Act as a physical or mental impairment which has a substantial and long-term adverse effect on a person´s ability to carry out normal day-to-day activities. Further guidance may be found in the Code of Practice for the elimination of discrimination in the field of employment against disabled persons – available from The Stationery Office.

  Statutory Sick Pay (SSP)

  Employers are responsible for the payment of Statutory Sick Pay (SSP) for periods of four days or more up to a total of 28 weeks absence in any one period of incapacity for work. Employers faced with exceptionally high levels of sickness at any one time may be able to claim financial assistance under the Percentage Threshold Scheme operated by the Department for Work and Pensions.

If you cannot find the answer to a specific question please feel free to contact us via our contact form or telephone on 01252 620 423