A. Recruitment and Selection

Legislation Governing Recruitment of Employees

 

You should be aware of the following areas of legislation governing recruitment and selection as applicable.

1. Sponsorship Licences and Immigration

   Legislation prohibits the employment of certain workers based on their nationality. There is a distinction drawn between EEA (European Economic Area) and Non-EEA nationals.

2. Employing Children & Young Persons

   Legislation distinguishes between a child and a young person

3. Disabled Workers

   All employers, irrespective of the number of employees they employ MUST comply with the Equality Act 2010.  In relation to recruitment and the effect of this legislation, an employer must not discriminate either directly or indirectly against a disabled person.

4. Membership of Trade Unions

   It is illegal to refuse employment on grounds related to membership of a trade union, either because an applicant is a member of a trade union or refuses to become a member of a trade union.

5. Employing Agency Workers

   The Employment Agencies and Employment Business Regulations 2003 require that an agency and client agree in writing who has what responsibility for an agency worker. However, a person from an agency could in some circumstances be deemed to be your employee. 

6. Criminal Records

   The Rehabilitation of Offenders Act 1974 sets down time periods after which a criminal offence is deemed to be spent. Once a conviction has been spent, it is treated as though it never existed and therefore does not need to be disclosed by applicants.

7. Criminal Records Bureau (CRB) – Disclosure Document

   Certain jobs and professions are excluded from the Rehabilitation of Offenders Act 1974, a full list can be found on the Criminal Records Bureau (CRB) website at www.crb.homeoffice.gov.uk/guidance/rb_guidance/eligible_posts.aspx

8. Independent Safeguarding Authority (ISA) Registration & Checking

   The Safeguarding Vulnerable Groups Act 2006 recognised the need for a single agency to vet all individuals and help prevent unsuitable people who want to work or volunteer with vulnerable adults.

9. Data Protection – Employment Practices Code

   The Employment Practices Code is intended to assist employers in complying with the Data Protection Act 1998 and to establish good practice for handling personal data in the workplace.  The Code covers such issues as the obtaining of information about workers, the retention of records, access to records and disclosure of them.

10. The Equality Act 2010

    Much of the law in respect of anti-discrimination and equal treatment remains the same.  Each head of discrimination is now legally referred to as a Protected Characteristic, relating to: age, disability, gender reassignment, marriage or civil partnership status, race, religion or belief, sex, and sexual orientation. One must bear the provisions of the Equality Act in mind when carrying out all recruitment and selection procedures.

11. Codes of Practice

    The Equality and Human Rights Commission's Codes of Practice give practical advice on discrimination in employment and contains general advice on the policies that are needed e.g. outlining steps that may have a positive impact on equal opportunity. The Code of Practice does not have force of law. If however an Employment Tribunal believes the provisions of the code are relevant to a case it must take these provisions into account.

     

 

Recruitment and selection procedures

The discrimination legislation (e.g. Equality Act) makes it an offence to advertise UK job vacancies in a discriminatory manner, whether or not this was intended.  The organisation must ensure therefore that it has proper procedures in place covering:

1. The advertisement of job vacancies

2. The application and selection processes

3. The offer of employment, the request for references and additional information

The employer / organisation must ensure that it takes all reasonable steps to avoid treating any applicant less favourably on the grounds of race, gender, marital status, sexual orientation, gender re-assignment, disability, age or union membership. Care must be taken from the very beginning to avoid allegations even at the recruitment stage.

Other procedures that should be in place for recruitment and selection, some of which will enable applicant's access to an appeal are:

 

4. Equal Opportunities Policy monitoring
5. Interviews
6. Complaints procedure
7. Grievance procedures
8. New Employee Induction Programme
9. Probationary Periods

   

 

B. The Employment Contract - A summary

Terms and Conditions of Employment at the Commencement of Employment

 

The employee must be provided with written particulars of the key terms of their employment no later than two months if their employment continues for a month or more with the employer.  To summarise, the employment must state, amongst other things:

1. The identity of the parties (ie employee and line manager)
2. The date on which the employee's period of continuous employment began
3. The scale or rate of remuneration, how this is calculated and intervals of pay
4. Any terms and conditions relating to hours of work and normal working hours
5. Any terms and conditions relating to holidays and holiday pay
6. Any terms and conditions relating to incapacity for work owing to sickness or injury including any provision for sick pay
7. Any terms and conditions relating to pensions and pension schemes
8. A note stating whether a contracting-out certificate is in force
9. The length of notice which the employee is entitled to receive and is obliged to give
10. The title of the job or a brief description of the employee's work
11. Where the employment is temporary, the period for which it is expected to continue, or if it is for a fixed term, the date when it is to end
12. The place of work
13. Any collective agreements which directly affects the terms and conditions of employment
14. Details relating to any work outside UK particularly when this work is for more than one month
15. Any disciplinary rules applicable to the employee
16. The name or description of the person to whom the employee can apply if they are dissatisfied with any disciplinary decision or seek to redress a grievance
17. Any further steps consequent upon an application expressing a dissatisfaction over a disciplinary decision or grievance

Changes cannot normally be made to the contract without the consent of the employee. However, some changes such as changes to employer's address, etc, but the employee must be advised of such changes in writing within one month.

 

Duties of the Employer

1. To provide work
2. To pay wages
3. To co-operate with the employee (preserve mutual trust and confidence)
4. To take reasonable care of the employee
5. Safe premises
6. Safe plant, equipment and tools
7. Safe system of work
8. Competent and safe colleagues
9. Duties of the Employees
10. To co-operate with the employer

Fidelity

 

The obligation not to compete with the employer

1. The obligation not to disclose confidential information
2. To take reasonable care

 

Fixed-term

 

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 say that fixed-term employees should not be treated less favourably than comparable permanent employees on the grounds they are fixed-term employees, unless this is objectively justified. Any such less favourable treatment must be actually necessary to achieve a legitimate objective and must also be an appropriate way to achieve it. Employees who believe their rights are infringed under these Regulations may present their case to an employment tribunal.

They apply to employees on contracts that last for a specified period of time or will end when a specified task has been completed or a specified event does or does not happen. Examples include employees covering for maternity leave and peaks in demand and employees on task contracts such as setting up a database. An example where less favourable treatment may be justified could be the disproportionate cost of giving a company car to an employee on a short fixed-term contract just because the comparator has one.

Less favourable treatment may be assessed in one or two ways: either each of the fixed-term employee's terms and conditions of employment should not be less favourable than the equivalent treatment given to their comparator or the fixed-term employee's overall package of conditions should not be less favourable.

Fixed-term employees have a right to:

1. Ask for a written statement setting out the reasons for less favourable treatment if they believe that this may have occurred. The employer must provide this statement within 21 days. Use of successive fixed-term contracts is limited to four years, unless further fixed-term contracts are justified on objective grounds. However, it will be possible for employers and employees to increase or decrease this period or agree a different way to limit the use of successive fixed-term contracts via collective or workforce agreements. Service accumulated from 10 July 2002 counts towards this four-year limit. If a fixed-term contract is renewed after the four-year period, it is treated as a contract for an indefinite period (unless the use of a fixed-term contract is objectively justified).

2. Ask their employer for a written statement confirming that their contract is permanent or setting out objective reasons for the use of a fixed-term contract beyond the four-year period. The employer must provide this statement within 21 days.

• To receive information on permanent vacancies in their organisation.

Any redundancy waiver that is included in a fixed-term contract which is agreed extended or renewed after 1 October 2002 will be invalid.

The end of a task contract that expires when a specific task has been completed or a specific event does or does not happen counts as a dismissal in law; so does non-renewal of a fixed-term contract concluded for a specified period of time.

 

 

Part-time Working

It is unlawful for any part-time employee to be treated less favourably in their terms and conditions of employment than comparable full-time employees.  An employee who changes to part-time working can compare their employment terms and conditions with those when they were working on a full-time basis. They should never be penalised or suffer worse conditions for switching to part-time working.

 

Holiday Entitlement & Conditions

The statutory minimum amount of holiday for which full-time employees are entitled to from 1 April 2009 is 5.6 weeks annual holiday. This statutory minimum amount can include the 8 Public Holiday Days a year.  Part-time employees are entitled to receive a pro-rata entitlement to the legal minimum or their contractual entitlement, whichever is the greater.

 

 

Sickness / Injury Payments

 

There are two types of sickness/injury absence payments:

 

Contractual Sick Pay Scheme (if applicable)

 

·      If such a scheme exists it is shown opposite individual employee entitlement and conditions. Where there is no contractual sick pay arrangement, you may wish to declare payment for all such absences, which will be at your discretion.  Alternatively, you may operate a contractual sick pay scheme with some but not all employees.

 

·      Some industries, e.g. building and civil engineering, operate an industrial sick pay scheme under national working rule agreements.

 

People covered by such a scheme receive the national agreed sickness payment plus Statutory Sick Pay for periods of sickness absence. These payments are normally incorporated into the contract of your employees even if the details are not in writing.

 

Statutory Sick Pay (SSP)

 

·      Under the Social Security & Housing Benefits Act 1982 you are responsible for the payment of SSP to all eligible employees for up to 28 weeks in any one period of incapacity for work or across a series of linked periods of incapacity for work.

 

·      If you have a contractual sick pay scheme, you may offset SSP payments against your own payments.

 

·      As an employer it is vital to appreciate your responsibilities and liabilities with regard to statutory sick pay. What follows will provide some guidance as to the SSP regulations and procedures for your Company to follow.

 

Owing to the complexity of statutory sick pay regulations, it is not practical to give full and complete details of the SSP provisions. 

 

 

Maternity Leave

 

All Pregnant employees, irrespective of their length of service, are automatically entitled to take up to 52 weeks Statutory Maternity Leave.   Statutory Maternity Leave (SML) will consist of:

 

·         26 weeks Ordinary Maternity leave (OML),

·         Followed immediately by 26 weeks of Additional Maternity Leave (AML).

 

The contract of employment continues during both Ordinary and Additional Maternity Leave.

 

During Ordinary Maternity Leave, a woman has the right to benefit from all normal contractual terms and conditions of employment with the exception of remuneration (unless she is of course entitled to contractual or Statutory Maternity Pay ).

 

Women are entitled to their full range of benefits during Additional Maternity Leave as during their Ordinary Maternity Leave.

 

The start of Maternity Leave must be no earlier than the 11^th week before the expected week of childbirth.

 

 

Paternity Leave, Adoption Leave and Pay

 

Following the birth or placement of a child, the rights to Paternity Leave and Paternity Pay gives eligible employees the right to take paid leave to care for the child or support the mother.

 

Employees with children born or placed between 6 April 2003 and 2 April 2011 benefit from the Ordinary Paternity Leave and Pay provisions only.

 

Employees with children born or placed on or after 3 April 2011 benefit from BOTH the Ordinary Paternity Leave and Pay provisions AND from the Additional Paternity Leave and Pay provisions.

 

Qualification

 

To qualify for Ordinary Paternity Leave (OPL), the employee must satisfy ALL of the following conditions:

 

·         Have or expect to have responsibility for the child's upbringing;

·         Be the father of the child or the mother's husband or partner;

·         Have worked continuously for you, for at least 26 weeks leading into the 15th week      before the baby is due; and

·         The absence must be for the purpose of caring for the child or supporting the child’s mother in her caring for the child.

 

You can ask the employee to provide a self-certificate as evidence that they meet these eligibility conditions

 

Parental Rights

 

An employee has the right to be absent from work ‘for the purpose of caring for a child’, on Parental Leave if s/he has at least one year’s continuous service with the employer.

 

It is available to birth and adoptive parents or anyone who has parental responsibility for a child.

 

Eligible parents may take a total of up to 13 weeks Parental Leave for each child for the purpose of caring for that chilled (increased to 18 weeks in the case of a child entitled to a disability living allowance)

 

Flexible Working

 

Parents of children aged sixteen and under, or of disabled children aged 18 or under, have the right to apply to work flexibly.

 

“Carers” also have the right to request flexible working.  A “Carer” is an employee who is, or expects to be, caring for an adult (someone over 18 years of age) who:

 

·         Has been continuously employed by the organisation for at least 26 weeks

·         Is married to, or is the partner or Civil Partner of the adult who requires care OR

·         Is a “near relative” (includes parents, parents–in-law, adopters, guardian, step-parent, sons and daughters (including adopted sons and daughters, son and daughter-in-law, step-son and daughters), siblings (including step siblings and those who are adopted and in-laws), uncles, aunts or grandparents (and includes adoptive relationships and relationships of full or half blood such as step-relatives) of an adult who requires care OR

·         Falls into neither category but lives at the same address as the adult.

The following options are considered to constitute flexible working:

 

·        Compressed Hours (part-time working)	·         Shift working
·         Job Sharing	·         Staggered hours
·         Flexitime	·         Annualised hours
·         Home working	·         Self-rostering
·         Term-time working	·         Teleworking

 

 

Periods of Notice

 

Unless the employee’s contract provides for a longer period of notice, there are minimum periods of notice which exist for both employers and employees to be given when employment is terminated. This notice is the statutory minimum notice period as required by law.

 

The minimum notice of termination to be given by the employer to an employee is the greater of:

That stated in the Employee’s contract, OR the statutory minimum notice period which is as follows:

·      Under one month's service - none.

·      Over one month's service but less than two years - one week's notice.

·      Two year’s service or more - one week for each completed year of service, up to a maximum of twelve weeks.

 The notice of termination to be given by an employee to the employer is the greater of:

·      The period in the employee’s contract OR

·      One week

 This may be increased by agreement and if extended this should be shown on the employee's contract statement

 

 

Dismissal on the Grounds of Sex, Race, Age, Sexual Orientation, Religion, Religious or Philosophical Belief, Disability and ill-health

 

Employers should note that the burden of proof in discrimination cases rests with them and not with the employee, once the employee has made out their initial case

 

When an employee is absent from work for a long period of time due to ill health you may wish to consider dismissing that employee and replacing them with another employee. However, before any such action is taken, legal advice should be sought.

 

Dismissal action should only be taken if it appears unlikely that the employee will be able to return to work and the employee's position needs to be filled.

 

In such cases it is essential to obtain a doctor's opinion as to whether the employee will be able to return to work in the near future and whether or not any reasonable adjustments would assist.

 

Payments: guaranteed, itemised, deductions, medically suspended

 

Employees with at least one month's service, who are not provided with work throughout a day during which they would normally be required to work under their contract of employment are entitled to be paid a guaranteed payment by their employer if:

 

·   There is a reduction in the requirements of the employer's business for work of the kind for which the employees are employed to do, OR

 

·  There is any other occurrence that affects the normal working of the business in relation to this type of work.

 

Payment depends on:

 

·   Complete 24 hours working days being lost, i.e. midnight-to-midnight.

 

·   The employee being available for work.

 

·   The employee not unreasonably refusing an offer from the employer of suitable alternative work.

 

·   The reason for lay off or short time working not being due to strike, lock out or other industrial action involving an employee of the employer or associated employer.

 

The statutory entitlement to guarantee payment is limited to 5 days in any period of 13 weeks.

 

Under employment legislation, employees are entitled to an itemised pay statement concerning their wage or salary.

 

Deductions from Pay

 

Under the Section 13 Employment Rights Act 1996 employers may not make deductions, other than statutory deductions, from wages.

 

Deductions from wages may be made if:

 

·   They are agreed in the employee’s contracts.

 

·   The employer has given advanced notice of its intention to make the deduction.

 

·   Prior to the deductions being made, the employee has given written permission for the deduction to be made.

 

 

Time off

If an employee is suspended from work by an employer on medical grounds, in compliance with a law or regulation concerning the health and safety of workers, payment will be made by the employer for a period not exceeding 26 weeks.

 

To claim payment the employee must have worked continuously for at least one month before the day on which suspension begins.

 

The employee will not be entitled to payment, if an offer of suitable alternative work by the employer is unreasonably refused by the employee.

 

Disciplinary Practice & Procedures

 

Time Off to Look for Work & / or Arrange Training

 

Employees who have been declared redundant, and who have been continuously employed for at least two years are allowed a reasonable amount of time off with pay before their notice expires either to seek new employment or to arrange training for future employment.

 

If time off is not allowed, the employee may complain to an Employment Tribunal.

 

Time Off for Public Duties

 

Employees must be allowed reasonable unpaid time off to engage in certain public duties. The requirement arises where an employee is:

 

·  A Justice of the Peace.

·  A member of a Local Authority.

·  A member of a Statutory Tribunal.

·  A member of a National Health Service Trust, an Area, District or Regional Health Authority or a Family Practitioner Committee.

·  A member of the Board of Visitors for Prisons, Young Offenders Institutions or Remand Centres.

·  A member of a Grant Maintained School, Higher Education Corporation or Education Establishments maintained by a Local Education Authority.

·  A member of the National Rivers Authority.

·  Jury Service

Ø       An employee may receive notification to undertake jury service at any time and you must allow them permission to carry out these duties.

Ø       The court will issue the employee with a loss of earnings claim form that should be completed by the Company and returned to them.

Ø       The court will make a payment (subject to their maximum amount) for each day the employee serves. The employee should notify you of this amount such that you can deduct it from their wage / salary.

 

Time off for Trade Union Duties & Activities & Carrying Out the Duties of a Safety Representative

 

Time Off For Union Learning Representatives (ULR’s)

 

Time off for Dependants

 

 

Grievance Procedure

 

The Acas Code of Practice on "Disciplinary and Grievance Procedures" stresses the importance of Disciplinary Rules and Procedures to ensure fairness and to assist businesses to operate effectively.

 

In Summary, the Disciplinary Rules and Procedures Incorporate:

·   A full investigation of the alleged breach of discipline in order to establish the facts.

·  The provision of information in writing to the employee setting out the alleged breach and potential consequence if they are found guilty of the breach.

·  A meeting at which the employee to can present his or her side of the case, known as a Disciplinary Meeting.

·  The right of an employee to have a single companion of his or her choice present (who can be another of the employer’s workers or an official of a trade union). The companion, who will be given time off work with pay to undertake this role, will be allowed to confer with the employee and address the meeting but not to answer on behalf of the employee.

·  A right of the employee to receive a full and detailed explanation of any penalty that may be imposed.

·  A right of the employee to have an Appeal meeting to reconsider any disciplinary action taken.  

 

The Employee File & Data Protection Act

Reference has been made in this Guide to the Employee File.

Nominate a member of staff to be responsible for keeping and maintaining this file on each employee and ensure that they understand their responsibility for data protection compliance.

 

In principle, employee files must be kept to satisfy statutory requirements. These cover, for example:

·     Hours of work (employment law legislation);

·     Holidays taken (employment regulation inspections/health and safety);

·     Statutory sick pay, Maternity Pay, Adoptive Parental Leave and Pay, time off taken for dependant emergencies, time off without pay for Parental Leave

·     Recovery from the Inland Revenue of Maternity, Adoption and / or Paternity Pay Disciplinary action and the outcome of grievances (employment legislation);

·     Minimum wage compliance

·     Accidents at work (Health and Safety regulations)

 

Perhaps more importantly, they can help the growth and development of the Company because they are a record of how the talents and skills of the individual are being developed.

 

They can also help employers to:

·  Identify any patterns of absence, lateness and / or sickness;

·  Ensure disciplinary matters are dealt with consistently throughout the Company;

·  Assist with identification of training needs;

·  Defend actions if Employee’s claims are made to Employment Tribunals or the Courts

·  Supply information to insurers and others for them to handle claims e.g. accidents.

 

The Working Time Regulations 1998

 

These regulations apply to all workers in Great Britain.

 

The regulations apply to workers. A worker is someone who is paid to work for an employer. This includes the majority of agency workers and freelancers.

 

A young worker is above the minimum school leaving age but under 18 years old.

 

Working time is defined as when someone is ‘working, at his employer’s disposal and carrying out his activity or duties’.

 

Working time includes travelling where it is part of the job, working lunches and job-related training.

 

Working time does not include travelling between home and work, lunch breaks, evening classes or day release courses.

 

If workers can decide how long they work, the working time limits do not apply

 

A worker’s working time, in any reference period must not exceed an average of 48 hours working time, and may not exceed 60 hours in any single week (a week always commences at 00.00 hours on a Monday morning).

 

The average weekly working time is normally calculated over 17 weeks (18 weeks in some cases) this is known as the ‘reference period’.

 

Under a relevant workforce or collective agreement (between the employer and an independent trade union) the workers and the employer can agree to extend the reference period to 26 weeks, and will also agree on the reference method for monitoring (fixed or rolling). 

 

The agreement can also be used to exceed the 10 hour limit for night work. 

 

A workforce agreement is made with elected representatives of the workforce in most cases. A workforce agreement can apply to the whole workforce or to a group of workers

 

 

The Information and Consultation of Employees Regulations 2004

 

The Information and Consultation of Employees Regulations 2004 apply to organisations with 50 or more employees.

 

The Regulations give all employees, the right to be informed and consulted about any developments relating to the organisation’s financial situation, structure and employment of staff. Arrangements for consulting and informing must cover the entire workforce including management up to, but not including, company director level.

 

The Regulation applies to public and private “undertakings” carrying out an economic activity, whether or not operating for gain.

 

Information is any topic/area that is central to the needs of the organisation and relevant to the common interest of all employees.  Communicating information is about the interchange of information and ideas within the organisation.

 

Employers should consider communicating information about:

 

·         Conditions of employment;

·         The jobs / functions employees carry out;

·         Major changes facing the organisation, and

·         The organisation itself.

 

The Civil Partnership Act 2004

 

The principle of the Civil Partnership Act 2004 is to create a new legal relationship of civil partnership, under which two people of the same-sex, can make a formal legal commitment to each other by entering into a civil partnership through a statutory civil registration procedure. 

 

Following the signature of a registration document same-sex couples have similar rights as married couples, making it unlawful to directly or indirectly discriminate, victimise or harass an employee due to their civil partnership.

 

Post-employment victimisation is also unlawful.

 

The Act also introduces rights for civil partners with respect of survivor pension benefits provided by private pension schemes.

 

The Equality Act 2010

 

The Equality Act 2010 came into force on 1 October 2010.  Much of the law in respect of anti-discrimination and equal treatment remains the same.  The Equality Act has largely been an exercise in harmonising the approach taken in relation to each strand of discrimination.

 

Each head of discrimination is now referred to as a Protected Characteristic.  The Protected Characteristics are:

 

·  Age	·  Marriage and civil partnership status
·  Disability	·  Race	·  Sex
·  Gender reassignment	·  Religion or belief	·  Sexual orientation

 

You must bear the provisions of the Equality Act in mind when carrying out all recruitment and selection procedures.

 

The aim of discrimination legislation is:

·        To eliminate discrimination for each Protected Characteristic by making it unlawful.

·        To allow employers to develop equal opportunity policies by taking positive action.

·        To provide a mechanism for individuals who have suffered discrimination to seek redress.

Under the Equality Act it is unlawful to discriminate against an employee, worker or a potential employee or worker on the grounds of colour, age, sex, race / nationality - including citizenship - ethnic or national origins, marital status, civil partnership, disability, sexual orientation, any religion, or religious or philosophical belief.

 

A recent Employment Tribunal found that a claimant’s belief about climate change fell within the remit of philosophical belief.  This claimant argued that his beliefs relating to climate change and the need to cut carbon emissions was more than an opinion but a philosophical belief that affected how he lived his life, including his choice of home, transport, food and drink, waste disposal and his hopes and dreams. 

 

Accordingly it is evident that areas of protection under discrimination legislation can be stretched and employers should be vigilant of this, particularly where a grievance is raised.

 

Under the Equality Act, employers may not discriminate before, during or after employment, including arrangements made for recruitment, promotion, training or transfer, terms and conditions of employment and dismissal. This also extends to discrimination after the working relationship has ended (i.e. the provisions of references).

 

Employers may also be liable for unlawful discriminatory acts carried out by their employees, while these employees were acting in the course of their employment, unless they can show they took all reasonably practicable steps to prevent the employee from acting in such a way.

 

It is essential to ensure your recruitment procedure does not cause your Company to fall foul of the discrimination legislation. To that end all Managers responsible for recruitment must be aware of how they could potentially discriminate against an employee or worker and must be given training as to their duties and the requirements under the various legislation.

 

Failure to consider applications from non-EEA nationals is considered as indirect race discrimination.

 

C.  Employment Contract - Termination

 

       Employment contract can be terminated for a number of reasons which include some of the following:

1. Retirement
2. Resignation
3. Dismissal for capability - performance, ill-health
4. Conduct
5. Disciplinary
6. Redundancy