Employment FAQs

As it appears that your business is suffering a temporary reduction in work, you may be able to lay-off the employees for February. Whether you can do this depends upon the terms of the contract of employment between the company and the relevant employees. Alternatively, it may be that the company recognises a trade union or there is a national agreement covering the decorating trade. If so, the issue of lay-off may be covered in these agreements.

If there is no express right to lay the employees off, then the employees may be prepared to agree to be laid off as an alternative to redundancy. There are strict rules about how long an employer can lay-off an employee without the employee being able to claim a redundancy payment from the company.

If the company has the right to lay off the employees without pay then they may be entitled to a statutory guarantee payment for a maximum of five days in any period of three months, subject to a maximum daily sum, which is currently £21.50. Once the guaranteed payment has run out, employees may be able to claim Jobseekers Allowance and should contact the local Jobcentre office about eligibility.

It is very important that you do not lay-off the employees until an employment expert has reviewed the contracts of employment because otherwise the company may be acting in breach of contract. If it is in breach of contract the employees could then claim the company has unlawfully withheld wages, they would be able to sue for damages or bring a claim for constructive dismissal.

Until recently the answer would have been that you could ask but your employer would have been entitled to say no. However, the European Court has recently ruled that workers who are sick whilst on pre-arranged holiday leave are entitled to request extra leave in order to make up their minimum leave entitlement under the European Working Time Directive, which is four weeks (not the 28 days now allowed under the UK Work Time Regulations.) The rationale for this is that all workers should be entitled to a minimum of four weeks' rest and relaxation a year, which they are not getting if they are sick.

Bear in mind though that by changing the status of your absence from paid holiday to sickness absence, you will lose the right to holiday pay for the days you have been ill and will only be entitled to statutory sick pay (SSP), which is nothing for the first three days and then £79.15 per week, unless your employment contract entitles you to company sick pay.

The practice in certain sectors of the catering and hospitality industry of using “tronc” schemes, in which tips are pooled, to pay staff's basic wages has long been highlighted as unfair by staff representatives unions and industry groups.

Some employers have been using tips and service charges to “make up” the National Minimum Wage, when customers thought they were giving “extra” money to the workers who had served them

As the law currently stands under rules in place since the introduction of the National Minimum Wage, where tips and gratuities are given directly to workers by customers and are retained by the workers without any other party or the employer being involved, they cannot be used to count towards the worker's National Minimum Wage payment.

But where service charges, tips, gratuities and cover charges, are collected by the employer and then paid to the worker via the payroll then the tip left by the customer can be used by the employer to count towards their obligation to ensure that the worker receives no less than the National Minimum Wage .

However this practice is set to change.

From the first of October this year employers will no longer be able to rely upon tips and gratuities to “make up” or subsidise a worker's wage and all service charges, tips, gratuities and cover charges will be excluded from being counted as payment towards the National Minimum Wage.

The answer to this until recently was no. An employee on long term sick could not claim statutory holiday or holiday pay for the time they were absent from work. At the end of the holiday year any statutory holiday entitlement which had not been taken was lost and could not be carried forward. Furthermore an employee was not entitled to payment in lieu if their employment ended without returning to work.

A recent decision from the European Court has clarified the position regarding payment for holidays whilst on long term sick. The decision only relates to the minimum paid holiday entitlements under the Working Time Regulations. It does not necessarily apply to more generous contractual holiday requirements.

Subject to approval by the UK Courts an employee can accrue entitlement to statutory holiday even when on long term sick. In addition an employee does not lose the entitlement to statutory holiday if it has not been taken during the holiday year in question.

So, if an employee is sick for the whole of the holiday year then it is likely they will be given the option to take the statutory paid holiday during the course of that year or alternatively the holiday entitlement will be rolled forward to the next year. This means that when the employee returns to work they will be entitled to any holiday which has been rolled forward from previous year/s together with the holiday entitlement for the current year. If the employee does not return to work after a period of long term sick they will be entitled to be paid for any holiday which has rolled forward from previous years and for any holiday which has accrued during the current year.

If, as in your case, you have taken and been paid for more holiday than you have accrued by the time you leave your job then it is clear that your employer can seek to recover the monies “overpaid”.

However, if an employer reduces or fails to pay wages without a prior agreement in writing this will amount to an unlawful deduction from wages even if the employee owes money to the employer. In other words, your employer is not entitled to take the law into his own hands by simply deducting any money owed from your wages without your consent.

This area of the law is tightly regulated.

An employer cannot make any deductions from employees' wages unless:

• prior written consent has been given;
• the deduction is authorised by statute (e.g. tax and National Insurance); or
• The deduction is in accordance with a contractual term.

You should check your contract of employment .A clause will often be included providing that the employer will be entitled to make deductions from your final pay cheque in such circumstances.

However, if such a clause is not included and is against your wishes, if the employer tries to recoup holiday pay from your final salary, this deduction will be unlawful.

A worker who suffers an unauthorised deduction from wages should firstly write to his employer seeking payment of the monies and if they are not forthcoming can apply to an Employment Tribunal .Complaints must be made within three months of the date of payment of the wages from which the deduction was made (or where a series of deductions are involved, three months from the last deduction)

The key to managing and minimising absence is to have a clear and consistently applied absence management policy. If people think they can get away with it, they will keep on doing it.

• Have a clear policy on reporting in when sick. Make it a requirement that anyone who is unable to attend work telephones you themselves before a deadline each day to notify you that they are not coming to work. Do not allow them to notify you through a third party unless they are literally unable to get to a telephone themselves. They should continue to contact you each day until they can produce a doctor's certificate. When they ring, ask them the nature of their illness and make a note of what they say on their personnel file.
• When they return to work, always have a quick return to work interview.; this is important. Ask them to tell you the cause of their absence. Write it down on a return to work interview form (or just a blank sheet of paper), date it and get them to sign it.

Already, by doing these two things you will be sending a message to your workforce that their sickness absence is an important issue for you, which you are addressing.

If you are sure that there is a problem, firstly speak to the employee in private and ask them what the problem is. If there is no acceptable explanation tell them that if they do not improve, the next step will be a disciplinary meeting.

If there is still no improvement, you must resort to formal disciplinary action. Do not put off dealing with it, do it promptly.

You must find out the current medical position of your employee. This means that you need to seek the employee's consent to obtain a report from his general practitioner (GP).

You must write to him explaining the need to obtain a report on his health. You will need to send the employee his rights under the Access to Medical Reports Act 1988 and a form for him to sign to confirm his consent.

If he consents, write to the GP and/or consultant. Set out in detail the employee's job role and the hours worked. Ask the doctor to explain what condition the employee is suffering from, when the employee is likely to be able to return to work and what adjustments the doctor believes you could make to the employee's role or hours to enable him to return to work.

When you receive the report consider the prognosis. If the doctor is saying the employee cannot return to work to undertake his role, then consider whether the employee could be offered an alternative position more suitable to his state of health, or whether this current role could be adjusted to enable him to return to work.

Write to the employee inviting him to a meeting to discuss the report (send a copy to him) and his employment. Advise the employee in the letter that he has a right to be accompanied by a trade union representative or work colleague at the meeting. State that one outcome of the meeting may be that his employment is terminated.

At the meeting, consult with the employee about the report and his opinion of his health. Discuss any adjustments that could be made and any vacancies that may be more suitable for him.

Only after consulting with the employee can you proceed to terminate his employment, if it is clear that he cannot return to work. Write to him terminating his employment and offer him the right to appeal.

Under the Working Time Regulations 1998, all workers were entitled to 4 weeks paid holiday a year ie, a worker who works 5 days a week was entitled to 20 days paid holiday a year. However, many employers included bank holidays as part of this entitlement.

The Government therefore increased the entitlement; from 1st October 2007 the entitlement for a worker who works 5 days a week increased from 20 to 24 days, with a further increase to 28 days (5.6 weeks) on 1st April 2009. Part timers' entitlements increased pro rata.

If your employer currently gave you 4 weeks holiday a year plus the bank holidays, the changes will not affect you in any way. However, if your employer only allowed you 20 days holiday, which included bank holidays, you should have received an extra 4 days paid holiday with effect from 1st October 2007 and will get another 4 days with effect from 1st April 2009.

Payment for your holidays should either be at the rate you are paid for your normal hours of work, or if you do not have normal hours, at the average wage you have earned during the 12 weeks immediately before your holiday.

You will be entitled to nine months of statutory maternity pay. These will all be paid at the statutory weekly rate. It is therefore only the final three months of the twelve months maternity leave that is unpaid.

All pregnant employees automatically qualify for twelve months' maternity leave regardless of their length of service. If you wish to return to work earlier than the end of the one year period then you will have to give not less than 8 weeks' notice to your employer.

“Keeping in touch” days have been introduced for employees on maternity leave. This means that you can work up to 10 days during your maternity leave without bringing your maternity leave to an end. You can also receive pay over and above your statutory maternity pay for the days worked.

Your employer will also be entitled to make reasonable contact with you whilst you are on maternity leave.

The Work and Families Act 2006 amended the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 to enable carers to apply for flexible working.

In order to be eligible to apply, the person needing the care must be married to, the partner or civil partner or a relative of the employee or living at the same address. You will also need to be involved in substantial and regular care for this person.

With regard to your employment, you must have been continuously employed by your employer for 26 weeks before you can make an application to vary your hours. Your application needs to be in writing and you can request a change in hours, times or location of your work for the purpose of enabling you to care for your mother.

Once you have made your application, your employer must hold a meeting with you to discuss your request within 28 days and inform you of their decision in writing within 14 days of the meeting. If your employer refuses your request you do have the right to appeal within 14 days of receiving the decision. An appeal meeting must be held with you before a final decision is reached.

Yes. There is a possibility that you can lawfully deduct the monies from the employee's wages. If the terms of the employee's existing contract of employment allow for a deduction and the employee has been given a copy of the contract then you can recover the money, or if the employee has agreed in writing to the deduction.

Retail workers are given added protection by the law in relation to deductions made as a result of cash shortages or stock deficiencies. It is unlawful to deduct more than 10% from the gross amount of the employee's wages on any pay day. This 10% limit does not, however, apply to deductions from the final payment of wages if an employee leaves for any reason.

Any deduction must be made within 12 months after you discover, or ought reasonably to have discovered the shortage.

If you have the contractual right to make deductions from the employee's wages then you must satisfy these additional conditions before you make the deduction:-

1. Notify the employee in writing of his liability in respect of the shortage or deficiency; and
2. Make a demand for payment which is in writing and on a pay day.
3. The amount demanded must not exceed the 10% of gross wages due to the employee on that particular pay day.

If your existing contracts of employment do not provide for deductions to be made then you may want to consider varying the terms of the contract, which will then enable you to recover any future shortages.

Problems arising from consumption of alcohol and misuse of drugs are seen as an increasing issue in the workplace. As an employer you do have a duty of care to ensure, so far as reasonably practicable, the health, safety and welfare at work of your employees. If you are aware that an employee is under the influence of drink or drugs at work then you could be breaching your duty of care if you allow the employee to continue working.

Depending upon whether your business is involved in a highly safety critical industry or not, will to a large extent determine whether you can introduce random testing. If you are not, then random testing is unlikely to be justified and testing should only be considered when you have a reasonable suspicion of drug or alcohol use that has an impact on safety.

I would suggest you introduce a drugs and alcohol policy in which you reserve the right to test your employees. It is important to consider the least intrusive and most reliable method of testing. Even with this right within your policy you will be unable to force an employee to undertake a test, as it would be an assault. Your policy should cover the consequences for employees if they refuse to take the test. It must also spell out what will happen if they take the test and the result is positive, will your approach be different, for example, if they have consumed the drugs or alcohol inside or outside work.

Remember that dependency upon alcohol or drugs is an illness and you should consider whether or not an employee is able to pursue medical or rehabilitative treatment.

There certainly is. Although you will not be able to refuse to retire, as the legislation provides for a default retirement age of 65, you do nevertheless have some important rights which may be of benefit to you.

Your employer has to comply with a prescribed procedure, notifying you in writing, at least 6 months but no more than 12 months prior to your proposed retirement date, of the fact that you are due to retire and also informing you in writing of your right to ask to stay on beyond 65. The right to ask to stay on does not mean that your employer has to keep you on beyond 65, but it does mean that he has to seriously consider your request to do so, if that is what you want.

So, if you would like to continue beyond 65 write to your employer after receiving his letter stating you wish to continue working.

If your employer does not send the first letter to you, you will be entitled to be compensated by a payment of 8 weeks wages, capped at a current maximum of £350 per week, i.e. you will become entitled to a payment of up to £2800. So it is worth checking that your employer has got the procedure right, because if he has not, there may be a windfall waiting for you.

If the company has an equal opportunities policy which provides a procedure for making complaints of sexual harassment then follow this immediately. If there is no such policy then raise a formal grievance in writing under the company grievance procedure. Advise the company of the remarks and advances made towards you by your line manager. The company should then ensure that an appropriate investigation into the allegations is commenced and may well suspend your manager, or move him to a different department whilst this is ongoing. Explain to your employer your reluctance to attend the party if your line manager is going to be there. If they are unable to finish the investigation before the party, or are unable to conclude that harassment has occurred, then they may allow your line manager to go.

If your manager attends the party, my advice would be to make sure you stay with a colleague throughout the evening. If your line manager, or indeed any one else harasses you during the evening, then raise a grievance about the treatment you have suffered. Improper behaviour by one employee to another at the office party (or any other social event occurring outside work) can give rise to a finding of discrimination against your employer, so they should take your complaint seriously.

If the situation does not improve then you may want to consider issuing a claim at the Employment Tribunal against both your employer and your line manager for sex discrimination, including harassment. If your employer does not treat your allegations seriously then you could consider resigning and bringing a constructive unfair dismissal claim as well. However, please do not take this course of action without seeking further specialist employment advice.