Checklist when Employing Staff for the First Time

Blogs - Employment

Seven things you need to consider when employing staff for the first time

  • Check someone has the legal right to work in UK
  • Carry out DBS checks (in certain fields e.g. security)
  • Pay at least the National Minimum Wage
  • Get employment insurance
  • Give your employee a written statement of employment covering the basic information that an employer is required to give by law.

This is made up of the main document (known as a ‘principal statement’) which must be given on the first day and a wider written statement which must be given within 2 months.

On the first day of employment the employer must also provide the employee with information about: sick pay and procedures, other paid leave (for example, maternity leave and paternity leave) and notice periods.

The employer can choose whether to include this information in the ‘principal statement’ or provide it in a separate document.

  • Register with HMRC as an employer
  • Check if you need to enrol your staff into a workplace pension scheme

It is not a legal requirement to provide a written contract of employment, but it is good practice to do so.

JY Partners Solicitors can draft all employment documents for you including an employee handbook. An employee handbook is a document that communicates your company’s mission, policies and expectations and clarifies your employees’ rights and responsibilities while employed by you. It is not a legal requirement to have an employee handbook, but it reduces legal risk and ensures that your employees understand the expectations that you have of them and their entitlements.

Contact our Employment Law Solicitors

If you have any enquiries in relation to UK employment law, contact our employment law solicitors on 020 8240 9018 or via the enquiry form on our website.

What is a Staff Handbook?

Blogs - Employment

An employer is responsible for providing staff with a number of HR policies and documents which are usually combined in a staff handbook.

It is not a legal requirement to provide a staff handbook, but it is good practice. Bringing together your company policies in one place is a valuable resource, both for yourself and your employees.

Information such as grievance and disciplinary procedures, sickness absence and annual leave is not only convenient for employees to have at hand; it can also prove useful during any potential disputes.

Parts of a staff handbook can consist of the information that you are legally obliged to pass on, such as specific national employment law policies; other parts can include information such as:

  • The company’s history, vision, values, and culture – helping to communicate and reinforce the company ethos and brand
  • General company policies – this could include smoking/vaping policies, drug and alcohol policies, work conditions, break times, and flexible working procedures
  • Health & Safety – employers with five or more employees are required by law to have a written health & safety policy
  • Anti-discrimination policies – informing employees of the standards expected of them and promoting a safe and inclusive workplace
  • Anti-harassment policies – this is covered by the Equality Act 2010 but including a specific section on anti-harassment policies in the staff handbook can help make employees feel safe, supported, and valued.
  • Sickness absence policies – a policy of ‘Return-to-Work’ meetings following absences could be included here
  • Maternity/paternity/adoption policies – include information on leave and pay entitlements for prospective new parents.
  • Leave/holiday – including these policies will ensure that employees are aware of what limitations there are on taking leave and ease the management of holiday allowances.
  • Disciplinary procedures – this ensures that employees know what to expect and that you are consistent in your approach.
  • Grievances – any grievance and disciplinary procedure included in your handbook should comply with ACAS guidelines.
  • Communication/IT/Social media policies – this can include guidance on appropriate language and refer to Equality and Diversity policies.
  • Data Protection policies – you also need to provide employees with information on how you store & process their personal data.
  • Dress code – employers should be aware of any potential discrimination when implementing a specific dress code. 
  • Company perks – many employees may not be aware of all the incentives or perks on offer when they first join a company. The staff handbook is an ideal format to inform them and boost morale, and productivity.

Although Staff handbooks can be in whatever format you wish and include as much or as little information as you see fit, ideally, they should be user friendly, so that your staff actually read them, and at the same time they should not miss out any crucial information.

Policies change over time, and it is vital that staff handbooks are regularly checked, updated, and reissued.

Handbooks can be used in conjunction with training and development, also providing a resource for employees to refer back to if they have any questions, concerns or grievances and because staff are kept informed, this helps protect against claims.

Contact our Employment Law Solicitors

For expert advice and assistance regarding the UK employment law, please contact our employment law solicitors on 020 8240 9018 or via the enquiry form on our website.

Termination of Employment – Unfair and Wrongful Dismissal

Blogs - Employment

Employees with 2 years’ service cannot be lawfully dismissed unless their employer has a ‘fair’ reason for the dismissal such as misconduct, poor performance, capability, redundancy or ‘some other substantial reason’. The procedure adopted by the employer may also make the dismissal unfair even if it would otherwise have been a lawful dismissal.

An employee can make a claim to an employment tribunal where they believe that their dismissal was unfair. An employment tribunal will listen to the evidence and decide whether the dismissal was actually fair in all of the circumstances of the case.

In certain circumstances employees with less than 2 years’ service may be able to claim that their dismissal was automatically unfair, for example, if an employee has been the victim of unlawful discrimination.

A dismissal could be unfair if an employer does not have a good reason for dismissing the employee or does not follow the company’s formal disciplinary or dismissal process.

If an employee is dismissed in the following situations, it is likely to be unfair:

  • where they asked for flexible working
  • they refused to give up their working time rights, for example, to take rest breaks
  • they joined a trade union
  • they took part in legal industrial action that lasted 12 weeks or less
  • they needed time off for jury service
  • they applied for maternity, paternity and adoption leave
  • they were on any maternity, paternity and adoption leave they were entitled to
  • they tried to enforce their right to receive Working Tax Credits
  • they exposed wrongdoing in the workplace (whistleblowing)
  • they were forced to retire (known as ‘compulsory retirement’) – compulsory retirement is not allowed unless an employer can objectively justify it.

Constructive dismissal is when an employee is forced to leave their job against their will because of their employer’s conduct. The reasons why the employee leaves their job must be serious, for example, they are not paid or suddenly demoted for no reason, they are forced to accept unreasonable changes to how they work – for example, told to work night shifts when their contract is only for day work, they are harassed or bullied by other employees and their employer does nothing to stop it. An employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together.

An employee should try and sort out any issues by speaking to their employer to solve the dispute, however, if the employee does have a case for constructive dismissal, they should leave the job immediately because an employer can argue that, by staying, they accepted the conduct or treatment.

Wrongful dismissal is a breach of the contract of employment by the employer usually involving notice periods.

An unfair dismissal claim can be made if the dismissal isn’t for potentially fair reasons under the Employment Rights Act 1996. The right to claim wrongful dismissal isn’t included in the Employment Rights Act it is a common law claim based on breach of an employment contract.

An employer has a responsibility to act legally when terminating someone’s employment and give correct notice. Where an employer acts wrongfully the employee can make a claim against them.

There are only two instances where a notice period is not required for termination:

  • if the employee has committed gross misconduct or a serious breach of contract, for example, theft, bullying, or harassment. This is also known as a summary dismissal.
  • if there’s a payment in lieu of notice clause included in the employment contract. A payment in lieu of the notice clause is when both parties agree to a lump sum rather than service of the required notice period.

An employee is well within their rights to claim for being both wrongfully and unfairly dismissed. However, they cannot receive double compensation – but both elements of the claim would be factored into the compensation payment.

When claiming wrongful dismissal an employee can be awarded compensation for what they would have received during their notice period. This is usually made up of basic salary, other benefits, any bonuses or allowances (such as a company car, private health cover and pension entitlement) and contractual benefits. The employee may also claim for any other contractual benefits they feel they’re owed.

The amount of damages awarded can vary depending on the wording of the employment contract.

In the UK, the amount of compensatory award for an employment tribunal is capped at £25,000 – anything higher must be pursued through the county court or high court.

Termination of employment claims can be expensive for employers, especially if they have to pay damages.

Taking the following steps can avoid a breach of contract claim and an employment tribunal:

  • Create effective documentation and ensure the contract of employment clearly states a fair procedure for termination.
  • Follow the terms of the employment contract.
  • Provide training for staff on equality and discrimination in the workplace etc.
  • Provide training for all managers on how to discipline correctly and procedures to be followed.
  • Ensure that staff are provided with sufficient notice at the end of their employment.

How to Deal with Employees Who Lie on Their CVs?

Blogs - Employment

The Supreme Court has recently handed down judgment in the case of R v Andrewes, confirming that a confiscation order of just over £96,000 could be made against an employee who lied on his CV in order to obtain a role. The case serves as a useful reminder for employers to ensure, so far as possible, they have robust recruitment processes in place to reduce the risks of hiring candidates who have been dishonest in their applications. This blog sets out practical tips for employers on how to achieve this.

What happened in R v Andrewes?

Mr Andrewes was appointed as CEO of a hospice in 2004. He obtained this role by making several false or dishonestly inflated statements about his qualifications and experience in his application. For example, he claimed he had a first degree (which was listed in the job description as an “essential” requirement) and an MBA. He also made various false or inflated claims that he had the required management experience through positions he had held.

He carried out the role until 2015, when his employment was terminated as the truth about his qualifications and experience began to emerge. During that time, he performed well in his role.

In 2017 Mr Andrewes was prosecuted, and he pled guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment as well as a confiscation order (under section 6(5) of the Proceeds of Crime Act 2002), as the Crown Court found he had benefited from the wrongdoing. He argued that he shouldn’t have been subject to the confiscation order because he had performed valuable services and his employer received full value in exchange for the salary paid. The case made it to the Supreme Court on the question of what confiscation order would be proportionate in these circumstances.

The Supreme Court rejected Mr Andrewes’ arguments. It said the hospice had sought to employ a person of honesty and integrity, and as the hospice would not have appointed him in the first place if the truth about his qualification and experience had been known, he would be profiting from his crime if no confiscation order was made.

The Supreme Court held that it was proportionate to make a confiscation order in respect of the difference between the higher earnings received because of the fraud, (net earnings of £643,602 over the relevant period) and the lower earnings that he would have received had he not lied on his CV. The difference amounted to £244,569. On the facts of the case, the recoverable amount was £96,737.24 as this the amount Mr Andrewes had available.

Tips for employers

Although the facts of this case are relatively extreme, it is nevertheless worth asking what employers can do to reduce the risk of being deceived by a dishonest applicant. Whilst there will inevitably be some CV fraud which “slips through the cracks” from time to time, here are some practical tips for employers to avoid being caught out: 

 

    • Where possible, more than one person should be used at each stage of the recruitment process to increase the chance of picking up on signs that something is not right. This has the added benefit of reducing the risk of unconscious bias in recruitment processes. Keep a written record of what was said during the interview.
    • Require that candidates provide two references, at least one of which should be a recent employer. Be proactive in following these up and ideally do so over the phone. If you identify any issues, don’t be afraid to follow those up with the candidate and/or ask for further referees.
    • Consider carrying out pre-employment screening checks with external providers.
    • It can be tempting to look up job applicants on social media, but be aware of the associated legal risks in doing so. Reviewing someone’s LinkedIn profile and other work-related online profiles (for example, on their current company’s website) can be a helpful way to ensure there are no inconsistencies between what they have said during the recruitment process and their online profile. Candidates should be informed in advance that social media may be accessed as part of the recruitment process and consent obtained. If there are any inconsistencies, ensure you follow up on them, both with the candidate and with their referees. It is advisable to avoid straying onto someone’s personal social media pages, particularly ensuring you don’t take into account information which could lead to judgements being made based on protected characteristics.
    • Ensure that both offers and contracts of employment are made conditional on references, any necessary security checks and satisfactory evidence of qualifications and experience. When an employee begins their role, ensure they provide you with that evidence (for example, degree or qualification certificates).
    • Use the probationary period properly. If there are warning signs at an early stage that someone might not have been truthful about their experience or qualifications during the recruitment process, ensure you investigate during the probationary period and think carefully about whether they should pass it.
    • Lying on a CV can potentially amount to gross misconduct and breach of contract (as well as a criminal offence, as Mr Andrewes discovered). However, particularly where an employee has over two years’ service, it is important that a fair procedure is followed in accordance with your usual disciplinary policy.

Can Persistent Lateness Justify the Dismissal of an Employee?

Blogs - Employment

 The recent Employment Appeal Tribunal (EAT) case of Tijani v House of Commons, in which a member of the House of Commons’ cleaning staff was dismissed for persistent lateness, provides a useful reminder that dismissals for repeated minor misconduct can be justifiable, even if an employer’s disciplinary policy is not clear. This blog explains the case and outlines practical tips for employers facing a similar scenario.

The Background

Ms Tijani started working as a cleaner at the House of Commons in June 2015. She would often arrive at work late, and in December 2017 received a first written warning after arriving late to work on 17 out of 20 days. She was given a final written warning in April 2018 which made clear to her that if her timekeeping did not improve, the next stage of the process could lead to dismissal. Despite this, her lateness continued. Although some of the periods of lateness varied considerably (from 2 minutes up to 33 minutes), a subsequent investigation found that Ms Tijani arrived late to work 50 times in the seven months following the final warning. Ms Tijani was subsequently dismissed in May 2019.

The ET and EAT decisions

Ms Tijani brought a claim in the Employment Tribunal (ET) for unfair dismissal. The House of Commons relied on her conduct (i.e, her persistent and continued lateness) as a fair reason for the dismissal. Ms Tijani argued that dismissal was a disproportionate response to lateness, arguing that she was only late “sometimes”, that others had not been dismissed for being late and that she had not been told why “two minutes here or there” had impacted the business.

The ET rejected the claim, finding that the House of Commons had acted reasonably and that the dismissal, following multiple written warnings, was fair.

Ms Tijani appealed to the EAT, complaining that the House of Commons did not produce a disciplinary policy in evidence during the hearing before the ET. Without the policy, she argued, the ET could not measure the nature and extent of the alleged misconduct and the appropriate reasonable range of responses available to the employer.

Whilst the EAT found that this was unfortunate, it recognised that Ms Tijani had been given written warnings (including a final one) and was well aware that dismissal would be a likely consequence should her lateness persist. In addition, the EAT felt that the sheer number of times she had been late meant that dismissal was a proportionate response. The EAT also concluded that employers should not have to prove that an employee’s misconduct was having a “specific knock-on effect” on the business in order to justify a dismissal. The EAT found that Ms Tijani’s dismissal was fair and rejected her appeal.

Useful information for employers

Employers should have confidence in exercising disciplinary sanctions, including dismissal, for minor misconduct where that conduct is persistent and continued. Prudent employers, however, will have a clear disciplinary policy setting out a non-exhaustive list of examples of misconduct and associated sanctions. This can be produced during any disciplinary proceedings or litigation to demonstrate that the employer has acted reasonably in accordance with a clear disciplinary policy. 

  • Keep a clear record of the persistent misconduct, no matter how minor.

    Not only does this assist in building a picture of the misconduct over time, it also protects employers against a situation where the employee tries to minimise the misconduct, as Ms Tijani did in claiming that her lateness was “sometimes” and “just a couple of minutes”. 

  • Keep records of all warnings given to the employee, both written and verbal, and notes of any meetings with the employee discussing the misconduct.

    This will protect against allegations of unfair procedure or process, show that there was open dialogue with the employee, and that it had been made clear to the employee that their conduct was an issue and the potential sanctions if the problem persisted. 

  • Ensure the employee is aware of disciplinary policies and that continued misconduct, however minor, could result in dismissal.

    Ensure that the employee knows where to find a copy of the relevant policy, or is provided with a copy directly where necessary. 

  • Explore the reasons for the persistent misconduct.

    It would be prudent to discuss this with the employee to ascertain whether an external factor, such as ill health or personal issues, is behind the misconduct. If this is the case, consider whether any adjustments could be put in place to support the employee, or if compassionate or sick leave may be required for a short time.

Contact our Employment Law Solicitors

For more advice in relation to this topic, please contact our Employment Law Solicitors on 020 8240 9018 or via the enquiry form on our website.