We are introducing an new social media use policy what happens if staff refuse to sign it?

Hopefully you will have somewhere within your contract of employment a statement such as:

“You will be subject to the terms and conditions as agreed and amended from time to time by the the Company as outlined in its policies, procedures, handbooks and other relevant documents..”

On this basis it is perfectly legitimate for you to change / implement policies and procedures. Even if you don’t have such a statement it is still reasonable to implement a new policy as long as it does not conflict with any currently agreed contractual terms and conditions (if it does then you need to agree the change with staff, or utilise a procedure to unilaterally impose this).

You should ensure that when you propose the new policy that you consult with your staff / trade unions about the policy contents and explain why you wish to implement such a policy. Once finalised, you should communicate the policy throughout your organisation using all your main communication channels such as: email, intranet, memo etc. You should also remember to amend your staff handbook if applicable. It is also advisable to let staff know how the policy will be monitored.

Ideally you would want every member of staff to demonstrate that they have read and understood the policy by signing this off (either on paper or electronically) however if they won’t, should it ever be necessary to defend any actions taken under this policy at an Employment Tribunal it should be enough to demonstrate that you have properly and effectively communicated it.

It may also advisable if you think this policy is likely to be contentious, to actually arrange face-to-face familiarisation sessions for all staff so you can be sure they understand the new policy and where you can issue them with a copy. You can also take a register at these sessions and in that way demonstrate that all staff were made fully aware of the policy.

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1. One of my cleaners has been on maternity leave since January and has provisionally said that she would like to return to work in September.

2. We are not sure that she is going to return so ring her to discuss this with her. She says that she does want to comeback but is looking to comeback part time, working Mon, Tues & Thursday only, at times around the nursery opening times, allowing her time to also travel.

3. She also mentions in the conversation that she wanted to come in before then to catch up with the team for a few days.

4. Lastly she also tells me that her child has a slight medical condition, and that she will be expecting to have to take some time off for appointments and if the child is sick.

What are the various issues here, and how would I deal with each one?

]  1. Assuming your employee is employed by you under a contract of employment, then she is entitled to take up to 52 weeks statutory maternity leave. Therefore returning in September is appropriate. In order to return early from maternity leave, she must give you at least 8 weeks notice of her return – again fine.

2. An employee has a statutory right to make a request to work flexibly, e.g. to change start or finish times, do part-time hours etc. if they meet certain criteria – they must:

• be an employee – agency workers do not qualify
• have worked for you continuously for at least 26 weeks on the date they make their request
• not have made another statutory request during the past 12 months

The employee can only make an application to care for either:

• a child under 18
• a disabled child who is under 18, and who is in receipt of disability living allowance
• certain adults who require care

Assuming the employee in question meets these criteria, then you are required to seriously consider whether your business can accommodate this request. You can agree to this request outright, or if you do not agree to it or require more information, then you must arrange to hold a meeting with the employee to discuss this (the employee will have a right to be accompanied by a work colleague or trade union representative). Your employee will also have a right to appeal against a decision to refuse a flexible working request. Should you decide to do anything other than agree to her request, then you need to make yourself familiar with the statutory procedure and timescales for considering flexible working requests.

3. It is reasonable for the employee to want to stay in touch during her maternity leave period, and is probably to your benefit to allow her to catch up with her team before her return. It will be discretionary however as to whether you wish to allow this or not. If you do and deem this to be working time, then the easiest way to remunerate this would be to give her the equivalent hours off in lieu once she returns to work.

4. Employees with young (or disabled) children are entitled to take 13 weeks unpaid parental leave (assuming she has at least 1 years continuous service with you). A week’s leave is equal to the length of time the employee is normally required to work in a week e.g. 5 days for someone working Monday to Friday, 2 days for someone working Tuesday and Friday only etc. It might be appropriate for this employee to take some of her parental leave around the child’s medical needs.

All employees are also entitled to reasonable unpaid time off to deal with an emergency involving a dependent (however it is unlikely that planned medical appointments would fit this criteria). There’s no set amount of time stipulated to deal with an unexpected event involving a dependent - it will vary depending on what the event is. For most cases one or two days should be sufficient to deal with the short-term problem.

As both parental leave and dependent leave are unpaid (assuming your contract of employment does not make any provision for payment for this leave), there is nothing to stop the employee from utilising some of the paid annual leave she may have accumulated during her maternity leave to attend her child’s medical appointments should she wish to.

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As a company we are going through a re structuring process with change of hours and possible redundancies. One of our part-time employees is pregnant and often off sick. It was decided that her specific role will be integrated into an existing full-time manager’s role. Can we still go through the same redundancy process with her or because she is pregnant we have to ‘spare’ her role and review after her maternity leave finishes??   

Under UK law, it is unfair dismissal and sex discrimination to select a woman for redundancy because she is pregnant or on maternity leave. You therefore must be able to demonstrate that any actions you take to make your pregnant employee redundant fits one of these situations:

• the business closes down either temporarily or permanently;
• the business moves and the employee cannot get to the new place of work;
• fewer employees are required for existing work.

If you are certain you can establish one of these situations (from your description it sounds like the last one would be most appropriate) then you can use proper procedure to make the pregnant employee redundant.

However be aware that you need to demonstrate fair selection for redundancy, therefore if another job has been altered to subsume the duties of the post, you should consider whether the pregnant employ could reasonably undertake this new role. If it could be deemed a reasonable alternative, and if she is on maternity leave then it should be offered to her before anyone else.

In summary then if you can clearly demonstrate a redundancy situation, the individual has been fairly selected for redundancy and there is no suitable alternative which she can undertake then you can reasonably make her redundant following the appropriate procedures.

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As there is now no compulsory retirement age, I am reviewing the retirement policy in our handbook.  Currently it refers to “the normal retiring age is 65 years of age”.  Is it OK to leave this in as it stands – it is a simple statement & should be viewed as a suggestion to employees of all ages.  Or would it be better not to refer to retirement all all?

Yes from 1st October 2011, there has been no “normal retirement age” and therefore the statement in your handbook is out of date and potentially misleading. We would strongly suggest that you remove this statement unless you feel you can objectively justify the suggestion that 65 is the “normal” retiring age in your company. It would be better to replace this statement with a general one related to workplace discussions around future aims and aspirations. These of course need to be held with all staff not just older employees. However they do give you a forum where the issue of retirement can be raised in the context of where they see themselves in the next few years. Something like:
“In line with current legislation this company does not have an age where it expects employees to retire. It is however our policy to have regular workplace /appraisal discussions with all our staff where they can discuss performance and any development needs they may have, as well as their future aims and aspirations. Staff and their managers can also use this opportunity to discuss retirement planning should the employee wish to do so.”

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Oh dear – you are in a very unusual situation indeed. Well firstly as he has made it public knowledge that he has been tagged, and as this is normally done as an alternative to incarceration, it would be perfectly reasonable as his employer to satisfy yourselves that what he has done will not have any effect on his work, or his relationship with you as his employer. You should therefore arrange to meet with him quickly to investigate the situation; he will be entitled to be accompanied by a work colleague or trade union representative if he so wishes.

At this meeting you will be asking him what he has done to merit being tagged, in order to assess what impact if any this will have on your employment relationship with him. You will then have to come to a view as to whether his crime has a direct impact on his employment with you, and whether you have lost confidence in him as your employee to fulfil his employment contract with you.

If you feel his situation has no impact on his ability to fulfil his contract of employment and you are happy to have him as your employee, you need do no more. However if the crime he has committed has a material impact on his job role e.g. he has been convicted of a crime related to fraud and he works in a position of trust in your company finance department, then you may wish to consider whether this can continue.

In these circumstances, you should inform him that you wish to meet him again to further consider his position under your Company’s disciplinary procedure and outline your concerns to him in writing setting up the hearing and again giving him the right to be represented.

At the hearing you need to take a balanced and reasonable view as to whether what he has done undermines your trust in him to do his substantive job. If so you should consider whether there are other jobs in your organisation he could undertake commensurate with your revised trust in him. If there is not it may be appropriate to bring his contract of employment with you to an end. In terms of fair reasons for dismissal this would relate to any other ‘substantial reason’ (see this answer). The acid test at an Employment Tribunal would be how reasonably you have acted under the circumstances.

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I suspended an employee this week and have written to him asking him to attend a disciplinary hearing next week. Today I have received from him a doctors note declaring him ‘not fit for work’ for four weeks with depression’. Does being signed off as sick make him automatically unavailable to attend the hearing?

Fitness to attend work and fitness to attend for a disciplinary interview are not the same thing and can be considered separately – an employee may be unfit for work but fit to engage with a management process.

However to assess this you would really need to ask your employee to attend for an interview with an Occupational Health practitioner if you have access to one. They are qualified to assess whether the employee would be able to properly engage with the hearing and whether their ’depression’ would potentially be exacerbated by attending. Often the OH practitioner can contact the employees GP and discuss the possibility that the employee’s symptoms will be likely to worsen if the case remains unresolved. In this way sometimes the GP can be persuaded to support the employee attending the hearing. You would need to be guided by the OH report.

If you cannot arrange a report from an Occupational Health practitioner, then you would not be in a position to assess the risk to the employees psychological health of insisting they attend the hearing. This could be costly if at some future point they make a claim against you for psychiatric injury caused by the stress of the procedure (although recent case law has tended to favour the employer in this regard e.g. Johnson vs Unisys).

In my view then your course of action is as follows:

1. Seek guidance from an Occupational Health Practitioner as above

2. If you are unable to do so, or it takes too long, then write to your employee rescheduling the disciplinary hearing for the date of his return to work.

3. If he submits another GP certificate after his current one, you can try writing to him/her suggesting that it would be to everyone’s benefit for the hearing to go ahead as it was obviously causing him/her ongoing distress. You can offer them the option of having the hearing away from the office and the right to be accompanied by a work colleague or trade union representative (you could if you so wish extend this to allow a friend / spouse to also attend for support only). You should set a provisional date and invite them to confirm attendance.

4. At the end of the day, if they continue to submit GP certificates and refuse to come to the disciplinary hearing, it would be reasonable to then look at terminating their employment on the grounds of capability (see here for the fair reasons to dismiss.

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We are a fairly small organisation and every member of staff has to pull their weight. One person is not doing so, they are basically lazy, often late, disruptive and have a very poor short-term sickness record with lots of individual days off. Given all this is there any reason why I can’t just dismiss them?

No you simply can’t terminate in the way you suggest without running the risk of a finding of unfair dismissal (assuming the individual has at least 1 years service or 2 years if the started after 6 April 2012) should you end up at an employment tribunal. You need to ensure you have a fair reason to dismiss. The fair reasons in law for dismissal are:

1. Conduct – if they have broken the terms of their employment through such things as continually missing work, poor discipline or theft / dishonesty.
2. Capability – where they are unable to perform to the required standard for reasons such as inability to deal with new technology, inability to get along with fellow workers, or long-term persistent illness. (However if the long-term illness relates to a disability you have a legal obligation to make ‘reasonable adjustments’ to help the individual to work).
3. Redundancy – where there is no longer any, or enough, work for the employee in your workplace.
4. A Statutory Restriction – you can fairly terminate if continuing to employ would break the law e.g. you employ a driver who loses his licence. You would be expected to look for alternative employment before dismissal.
5. Another Substantial Reason – this is a general catch-all of other reasons – these can be such things as imprisonment of the employee, an unresolvable personality conflict etc. Generally the other reasons for dismissal should be relied on where possible as it is often more difficult to prove a ‘substantial’ reason.

In the case you refer to, I would suggest you look at going down the conduct route, and so you really need to have an effective disciplinary procedure in place. You will find one on this site. Ensure you properly investigate each episode of future potential misconduct that you identify, and issue warnings as appropriate. These soon mount up, and the individual concerned will either get the message and improve their behaviour, or you will have enough information to safely dismiss them.

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We have recently taken over a small company, and are in the process of assimilating their staff. However we are finding the behaviour of these employees rather difficult as we try to bring them on to our working conditions. For example they dress inappropriately, are often rude to their managers, they abuse timekeeping rules and we also think they are misusing company phones and computers for personal use. What should we do about this?

The first thing is to be absolutely clear on what behaviours you require from these members of staff. An excellent way to achieve this is to implement a company wide handbook which contains all the information required in relation to performance standards which will apply to all Company staff- have a look at the template on our website. Not enough to just introduce it though. You might want to think about having training / familiarisation sessions about the handbook and the info it contains. You should also ensure each individual signs to say they have received a copy (or confirm they have read it if it is held electronically). Once staff are absolutely clear what is expected of them, any deliberate failure to meet these standards can be dealt with as misconduct issues utilising the disciplinary procedure.

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Some of the young people in the age range mentioned are covered by the National Minimum Wage rates, so you need to watch out for that and ensure that they are paid appropriately. There are also working hour restrictions to be aware of. I would tend to segment your workforce into these groups:

14-15 year olds (and those who are 16 but not yet beyond the end of the school year of their 16th birthday) – Can only work for 5 hours per day Monday to Saturday (15/16 year-olds can work 8 hours), and up to 2 hours on a Sunday. 14 year olds can work a max of 25 hours per week; 15/16 year olds a max of 35 hours per week. Nor can the work before 7am or after 7pm. You will therefore need to calculate an hourly rate for them, but they are not covered by the Minimum Wage so you don’t need to worry about that.


16-17 year olds (including 16 year olds who are beyond the end of the school year of their 16th birthday) – no significant restrictions on working hours, but this group would be entitled to the National Minimum Wage for 16-17s of £3.68 per hour.

There is also have an entitlement to holidays which starts to accrue as soon as they start working for you.

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I have a member of staff who has requested the right to vary her start time because of child care arrangements which are dependant on her husband returning from night shift. She is effectively asking to be able to start anytime between 9am and 10.30am. We could just about accommodate this – we provide caring services – but it would mean her colleagues being very flexible and they are not happy about that. Do I have to grant her request?

Assuming her child is under 16 (or is disabled under 18), she has worked for you for at least 26 weeks, and she makes the application in writing then you have a statutory requirement to consider this request and come to a view within 12-14 weeks. You will need to arrange to meet within 28 days of receiving the request and allow her, if requested, to be accompanied by a work colleague or trade union representative.

You should keep an open mind when hearing the request. There are a number of reasons why you can refuse the request: additional cost, inability to reorganise work, inability to recruit extra staff, insufficient work during requested change, planned structural changes, or detrimental effect on customer demand / on quality / on performance. If you refuse the employee has a right to appeal within 14 days and you must hear this within 14 days.

It sounds like in the circumstances you describe it would be reasonable to consider collectively with the employee and her colleagues as to whether her request is possible, and perhaps agree a trial period to see how it might work. For further information see the ACAS guidelines.

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