The Five Most Common HR Questions We’re Asked
Posted on 8th November 2021 at 15:14
Q: I have an employee who is not doing what I want them to do can I get rid of them?
A: The answer is dependent on a number of things. How long have they been employed? If under 2 years there is no risk to the company of an unfair dismissal claim at an Employment Tribunal. Are they still in a probation period and if so you may want to extend the probation period or end their employment?
Caution should still be exercised in ensuring that there are no other underlying factors that have affected performance e.g. an underlying health issue that could be classed as a disability. There is no length of service requirement for bringing a discrimination claim to an Employment Tribunal. So, in answer to the questions yes you can but you should always ensure a fair process and have a valid reason for dismissal. If you’re having employee troubles at the moment, why not call us to discuss your options?
Q: I am taking on my first employee what do I need to do?
A: Depending on where you are in the process of taking on a new employee will depend on what you need to do. At ADD HR Solutions we will advise to consider what the employee will be doing, this will help build up a picture of the tasks they are going to carry out (job description) the knowledge, skills and attitude required to carry out the job (person specification) and how the job will be undertaken (full-time, part-time, fixed-term, outsourced etc).
For your first employee you will need a contract of employment which sets out the expectations of both parties. This professionalises the relationship and if there is an employment dispute outlines the express terms you have agreed; otherwise it will be a case of establishing this in a tribunal, which is. You will also need to check the employees right to work in the UK; if this is not completed and the employee does not have permission to work in the UK you could be facing a fine of £20,000. Basic policies such as disciplinary, grievance and an induction checklist will set you on the right road to a successful relationship.
Q: I am conducting a disciplinary but the employee is unable to attend what can I do?
A: Try and avoid seeing the employees’ inability to attend as an admission of guilt in the circumstances. The employee may have valid reasons for not attending the hearing; examples could include illness, lack of availability of their chosen companion, needing more time to prepare etc.
I have known a number of occasions when an employee has taken sick leave for work-related stress; particularly when facing a disciplinary for gross misconduct. It is here that an employee should tread carefully and consider the use of its sickness absence procedures in these circumstances. It is important for the employer to establish the causes of the work related stress as these could be pertinent to the disciplinary. If the work related stress is caused by invoking the disciplinary procedure itself, well that is unfortunate and the employee needs to be informed that the process will continue. However, the employer could offer to hold the disciplinary off company premises, or allow the employee to put forward a written case if necessary.
Although an employer can hold a disciplinary in the absence of the employee it needs to be careful in making that decision. The employer needs to show they have acted reasonably in the circumstances and that there is a clear audit trail which indicates that the employee has been warned that failure to attend a meeting may result in being held in their absence.
Q: Do I need to give an employee a written contract of employment?
A: Under the Employment Rights Act 1996 you need to provide a written statement of particulars to an employee within two months of their commencement of employment with you. If this is not provided and an employee does not receive a satisfactory response from their employer they can seek redress through an Employment Tribunal. Compensation is usually between 2 to 4 weeks’ pay.
The minimum requirements of a written statement of particulars are the following:
The names of the employer and employee
The date the employment began
The date continuous service started (this may be the same as the date the employment began in most cases. However, in a transfer of undertakings employment with a previous employer will count)
The pay rate and/or way of calculating it
The date and method by which payment of salary/wages is made
Hours of work
What happens when you are sick or incapacitated? Entitlement to sick pay
Pension and pension scheme
Notice required from both parties to end the contract
Whether the job is intended to be permanent or not (if fixed term, an end date)
Place or places of work
Any collective agreements (these are agreements that you may have in place with a recognised trade union)
If the employee is required to work outside of the UK for more than a month
How he/she will be paid (currency)
The period for which he/she will be required to work abroad
Any terms and conditions relating to his/her return to work in the UK
Any benefits payable for working outside of the UK
So what is the difference between a written statement of particulars and an employment contract? Very little, the written statement of particulars is the basis of an employment contract but an employer may want to have more than a written statement of particulars that go over and above to protect his/her business activities.
For example, if a company was to employ a sales person it would be normal for that employee to have access to sensitive client information. Therefore an employer may want to have the option to put an employee on garden leave if they resign due to a job offer with a competitor. The employer may also include a number of restrictive covenants to prevent the employee from revealing sensitive information to its new employer.
Any restrictive clauses need to be sensible and the employer needs to be able to prove they are relevant and not just put them in place for all employees. Basically restrictive clauses which are too restrictive are likely to be unenforceable particularly if they affect an employees’ employability or ability to practise their skills. For example, hairdressers are often restricted from setting up within a 2 mile exclusion zone from their current employer and are not able to contact their current client base, which would seem fair in a local area not dominated by salons; however this may be difficult to enforce in a city centre where competition would be greater anyway.
Q: I have an employee who is not working out but I don’t want to go through capability disciplinary as it takes too long. Is there a way to end their employment?
A: Assuming the employee has a length of service over 2 years, which ensures that they have the qualifying service to make a claim of unfair dismissal the best way to end the employment relationship is through a settlement agreement (previously known as a compromise agreement).
Employees have the right to have a companion within a without prejudice discussion about ending the employment relationship via a settlement agreement. The settlement involved may include pay in lieu of notice and an enhanced redundancy payment; but it depends on contractual obligations within the contract of employment. The employer must also meet the costs of independent legal advice to ensure the settlement agreement is legally binding.
The settlement agreement usually includes a promise not to take the employer for any claim to Employment Tribunal, a gagging clause and an agreed reference that both parties will not deviate from
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