Gender pay reporting legislation requires employers with 250 or more employees to publish statutory calculations every year showing how large the pay gap is between their male and female employees. Private and third sector employers (it’s slightly different for the public sector) who meet the criteria, must publish their figures for the previous year in April every year. The legislation took effect from 5 April 2017 so the first reporting date was 4 April 2018. The results must be published on the employer’s website and a Government website within 12 months. Where applicable, they must be confirmed by an appropriate person, such as the business owner or chief executive.

So does this apply to your circumstances? The legislation means that an employer must comply with the regulations for any year where they have a ‘headcount’ of 250 or more employees on 5 April. The headcount means that part-time staff (including any job-sharers) count as 1 person for these purposes. It must also include staff who might be defined as “workers” rather than employees – for example those on a zero-hours contract. Therefore based on these definitions it looks like your company may well fall within the legislation requirements to report your gender pay gap.

That being the case you will need to publish the following information:

1. average gender pay gap as a mean average
2. average gender pay gap as a median average
3. average bonus gender pay gap as a mean average
4. average bonus gender pay gap as a median average
5. proportion of males receiving a bonus payment and proportion of females receiving a bonus payment
6. proportion of males and females when divided into four groups ordered from lowest to highest pay.

Although it sounds quite onerous, it is likely that your payroll provider will be able to help you utilising payroll information, or if you do your own payroll you can download the information from your payroll system. Acas has provided detailed guidance on the calculations, and the Government website will walk you through these too.

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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 alleged misdemeanour 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.

Article reviewed April 2018

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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 2 years service) 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 not 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 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.

(Article updated April 2018)

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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.”

You may also wish to consider looking at flexible retirement options for inclusion in your Handbook. This is a scheme that allows employees, with employer’s approval, to achieve a mix of retirement and continuity at work.  The employee reduces their work and gives up part of their salary in exchange for part payment of their pension benefits.

For the employee, the benefits can include an improved work-life balance or freeing up time for caring or other responsibilities without taking the full financial penalty that can come with going part-time or leaving work altogether. For the employer, flexible retirement offers a means of retaining key staff who might otherwise be lost to full retirement and of smoothing transitions to their replacements.

(Article updated April 2018)

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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 fit note declaring him ‘not fit for work’ for four weeks with depression’. Does being signed off on sick leave 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 as an alternative you might ask the employee if you, as their employer, can seek access to a report on their condition from the doctor concerned. However to avoid the risk of breaching your employee’s right to privacy and also possible breaches of the Data Protection Act / General Data Protection Regulation, an employer should ensure that any request for a medical report is focused and limited only to the particular purpose for which it is obtained. You can only apply for a medical report if you have notified the employee concerned in writing that you would like to make an application, advised them of their rights (to withhold consent or see the report before the employer) and then obtained that employee’s written consent to the application being made.

If you cannot arrange a report from an Occupational Health practitioner / Doctor as outlined above, 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 access such OH services then seek the employee’s permission to ask for a report from the Doctor concerned and in the letter to that Doctor include details of the individual’s job role and the specific questions you would like answered about his condition as it relates to his employment.

3. From either the OH service or the Doctor you should specifically ask whether the employee would be fit to attend a disciplinary hearing whilst signed off sick (and if not when he would be likely to be fit for that). You should then change the date of the disciplinary hearing based on the advice you have obtained.

4. If the OH / Doctor’s report is non-committal with regard to a date, and if the employee continues to submit ongoing GP Fit Notes 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.

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

Article updated April 2018

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We are introducing an new social media 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.

(Article reviewed April 2018)

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I run a small company developing bespoke software for a variety of clients. We employ 2 staff as well as myself, and have become pretty busy over the last year as the business has grown quickly. Now a key member of my staff has informed me that his wife is pregnant and he will be taking 6 months off work as Shared Parental Leave with his wife! His skills and knowledge cannot be replaced just for 6 months – do I have to give him this time off and keep his job open for him?

The quick answer is yes you do, assuming he and his wife meet the necessary criteria for Shared Parental Leave.

It gives them the option of sharing up to 52 weeks of statutory maternity / adoption leave and 39 weeks of statutory maternity / adoption pay if they meet the necessary eligibility criteria. The parents can decide to be off work at the same time and/or take it in turns to have periods of leave to look after the child.

What are the eligibility criteria?

To be eligible for shared parental leave, your employee (or their partner) must be entitled to maternity / adoption leave, or statutory maternity / adoption pay (or maternity allowance from the Government) and they must share the main responsibility for caring for the child. In addition, they will also be required to follow a two-step process to establish eligibility as follows:

Step 1 – Continuity test: if they are just seeking to take shared parental leave, one parent / adopter must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child or adoption) and they should still be employed in the first week that shared parental leave is to be taken.

The other parent /adopter has to have worked for 26 weeks in the 66 weeks leading up to the due date and have earned above the maternity allowance threshold of £30 a week in 13 of the 66 weeks.

Step 2 – Individual eligibility for pay: To qualify for shared parental pay the parent / main adopter must, as well as passing the Continuity test above, also have earned an average salary of the National Insurance lower earnings limit or more for the 8 weeks prior to the 15th week before the expected birth / adoption.

If your employee and their partner meet the eligibility criteria:

• They can effectively “convert” a period of maternity / adoption leave and pay into shared parental leave and pay that can be taken by either parent.
• Your employee can take shared parental leave concurrently with their partner when they are on maternity / adoption leave or shared parental leave.
• Shared parental leave does not have to be taken in a single continuous block, it can be taken in chunks of as little as a week (but discontinuous blocks can only be taken with your agreement).
• When on shared parental leave your employee will be entitled to the same terms and conditions that would have applied had they been at work, with the exception of pay.
• Shared parental leave may be taken at any time within the period which begins on the date the child is born or date of the adoption placement and ends 52 weeks after that date.

Here are a couple of examples of how this could work:

1. Baby is born and the mother immediately commits to taking 27 weeks maternity leave and pay leaving 25 weeks leave and 12 weeks pay to be shared with the father. The father takes 2 weeks paternity leave when baby is born and then immediately takes the 25 weeks leave and 12 weeks pay. Both parents return to work after 27 weeks having used all their shared parental leave.
2. The mother / main adopter ends her leave after 26 weeks, and the balance of the leave and pay – 26 weeks leave and 13 weeks statutory maternity / adoption pay is available to be shared between the parents as they choose. The father takes 10 weeks leave and pay, while the mother returns to work. He then returns to work and the mother takes the remaining 16 weeks leave and 3 weeks pay.

Your employee will need to give you at least 8 weeks notice of each period of Shared Parental Leave. He could divide this into 3 blocks if he want but you would need to agree to this; however if he just asks to take it as one continuous block you have no option but to agree to it! You will also need to ensure you properly administer his statutory shared parental leave pay. You would be sensible to introduce a Shared Parental Leave policy to ensure both you and your employee know what is required to ensure this goes as smoothly as possible. There is a free policy template you can download here.

The regulations do allow you to ask your employee to work for up to 20 days during his SPL for training purposes, meetings or just to keep generally up to date with the business. These days would not extend his SPL and would be paid at his normal rate. You are not obliged to offer this and he is not obliged to attend.

To add to your burden, he will continue to accrue his annual leave entitlement when he is on SPL so that will need to be given to him at some point too.

Remember too that as well as SPL he is also entitled to take 18 weeks unpaid Parental Leave for each of his children after he has one years service with you. This is limited to 4 weeks per year, but in theory he could also add this to his away time from your business!

Overall uptake of SPL is not high – mainly because statutory shared parental pay is not very attractive. The current rate is £145.18 a week (from 1st April 2018)  or 90% of the employee’s average weekly earnings, whichever is lower. However where you do need to absorb this into your business it could potentially be quite onerous.

(Article updated April 2018)

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It is perfectly in order to place such a restriction within the statement of terms and conditions that you will issue to the employee when they commence working with you. However this will not affect your current employees unless you issue them with a contract amendment letter stipulating the new condition.

A better plan would be to incorporate the restriction into your staff handbook if you have one, or even better issue a proper policy on the use of the internet. This would explain much more thoroughly than a single paragraph in the contract and could describe exactly what restrictions you want to place on your staff with regard to these sites, as well as other issues like accessing pornography or abuse of your email system. You can then issue the policy to each member of staff and ask them to sign a form for their file confirming they have read and understood the policy.

There is a template internet & email policy on our website here which you can download for free and adapt for your purposes.

(Article Reviewed March 2018)

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We have an employee who has unfortunately been ill and consequently off sick for over a year. On return she now wants to carry over all those holidays to the next leave year – can she do that?

If a worker is unable to take their holidays due to sickness absence, then they can carry over 4 weeks.  This rule applies to the 4 weeks of holiday established under EU regulations, but not to the additional 1.6 weeks of UK holiday provided for under the Working Time Regulations (or indeed any additional contractual holiday entitlement).

Furthermore a recent Employment Appeal Tribunal has clarified the period within which the employee must take this additional carried over leave after which they would lose the entitlement. They have interpreted the Working Time Regulations as giving a worker an 18 month period from the end of the leave year in which it accrues, to take the 4 weeks holiday (or pro-rata part thereof) accrued but not taken due to sickness absence.

Furthermore, a worker does not have to demonstrate that he was physically unable to take annual leave due to his illness in order to benefit from carry-over arrangement.  They are not obliged to take any of their leave during a period of sickness absence.

In Summary, carrying over annual leave whilst on long-term sickness:

• Is lawful
• Is not reliant on the employee being unable to take it, mere unwillingness to take the leave accrued is sufficient
• Has a limit of four weeks entitlement
• Is not indefinite – a time limit of 18 months applies

In light of this, employers might wish to check their employment policies to ensure that carry-over is permitted but note it that it needs to be taken within 18 months and can be restricted to a maximum carry-over of 4 weeks.

(Article Reviewed March 2018)

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