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Employment law: do you know the facts?

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Employment law regulates the relationship between employers and their employees. It covers every aspect of employment from the hiring process through to the exit process, ensuring every individual is treated fairly.

Employment law is potentially full of pitfalls. Getting it right means keeping up with developments and really thinking about your policies before carefully implementing them. Getting it wrong can be extremely expensive.

Jo Moseley, a Professional Support Lawyer in Irwin Mitchell’s Employment Team says, “There’s no doubt that the law is complex, but dealing with employees on a daily basis doesn’t have to be complicated. If employers act reasonably and think through their actions, they can stay on the right side of the law.”

There are seven areas of employment law likely to affect you. Here are the main things to be aware of in each area.

1) Recruitment

If you recruit the right people, you’ll have fewer problems to deal with later. We all make instant judgments about people and may even decide about a candidate’s suitability before they’ve said a word. Train interviewers to be aware of, and avoid, unconscious bias: ask standardised questions to give each candidate an equal chance. You must also check they have the right to work in the UK. “Use probationary periods effectively and have regular reviews,” says Jo, “If there are early signs the employee is likely to be unsuitable you can usually dismiss without risk.”

2) Hours, leave and pay

You must adhere to the Working Time Regulations regarding working hours, rest breaks and paid annual leave. “You need to make sure your staff are not working in excess of 48 hours a week (unless they’ve opted out) and should have a system in place to record an employee’s actual working hours – not just those set out in their contract of employment,” advises Jo. Ensure employees are paid at least the minimum wage, with everyone receiving a wage slip, and you must operate PAYE for tax and National Insurance contributions.

3) Employee rights

All employees should receive a statement setting out the main terms and conditions of their employment. Plus, certain ‘rights’ will be implied. There must be a relationship of ‘trust and confidence’ between employer and employees; a reasonable amount of privacy, the right to belong (or not) to a trade union, and the entitlement to ‘blow the whistle’ on employer wrongdoing; employers must provide a secure, safe and healthy working environment, and most employees are entitled to keep their jobs if the business changes hands. Jo adds, “Everyone has the right to ask for (but not necessarily get) flexible working after being with an employer for 26 weeks.”

4) Discrimination

Underpinned by the Equality Act 2010, it’s crucial that employers get this right as they are legally responsible for discrimination and harassment by their staff. Discrimination can be direct (e.g. not employing somebody because they are gay) or indirect (applying a policy equally to everyone that disadvantages one group, e.g. irregular shifts for women who may be carers). Harassment is often dismissed as ‘just banter’, but as Jo points out, “it’s not the intention that’s the issue, it’s how it was perceived.” To prevent discrimination or harassment, “employers need a workplace policy, should train their staff about what is and isn’t acceptable, and take prompt action against anyone who oversteps the mark,” advises Jo.

5) Disciplinary and grievance

You need to have disciplinary and grievance procedures that follow the ACAS Code of Practice in place. If you’re going to dismiss someone, you’ll need a good reason and it must not be unlawful or unfair (genuine redundancy can be grounds for dismissal). When dismissing employees, says Jo, “As long as an employer approaches the situation in a fair, reasonable way, and can justify their actions, the law allows for ‘a range of reasonable responses’”. And you don’t necessarily have to go through the rigmarole of a series of verbal and written warnings – you can go straight to a final written warning or dismissal in serious cases.

6) Sickness

Tackling illness in the workplace can be tricky – particularly if the employee has a disability and is protected under discrimination legislation. We’ve all come across an employee who seems to have a sickness bug on Monday mornings (short, intermittent illness) or those who are off for over a month (long-term sickness). All employees should be asked to attend a back-to- work interview after any period of illness: the key thing here is, where necessary, to offer adjustments that ease people gently back into work. Not all illnesses incapacitate a person so much that they need to stay in bed, or remain at home - this is particularly true of conditions such as stress or depression. “Questions should also be asked if the employee is regularly phoning in sick on a Monday. If the employee is unable to give a satisfactory answer, it might be appropriate to instigate the disciplinary procedure, but not if the employee is genuinely ill,” adds Jo.

7) Working parents

When an employee is expecting a baby or is a new parent, they have extra rights at work. An employee and their partner could be entitled to: paid time off for ante-natal care, maternity leave and pay, paternity leave and pay, shared parental leave and pay, adoption leave and pay, and unpaid time off to care for a child. These rights apply to same-sex relationships as well as opposite-sex relationships. Employees can also have a few days’ ‘unexpected emergency leave’ for domestic emergencies.

With over 1,000 legally trained staff in offices across the country, Irwin Mitchell solicitors provides clear, straightforward personal and business advice with a human touch. If you need legal advice and assistance on your legal responsibilities when running a company, call Irwin Mitchell on 0808 163 1717.