Questions and Answers

Date:03/02/2011 Posted by: Jill Mytton Ref: #17
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.
Date:01/02/2011 Posted by: Paula D Ref: #16

At what point does a casual worker become an employee?  I work in hospitality and all our staff are engaged casuals.  They tend to have regular shifts but it is not fixed and often last minute when we tell them.  We offer time off or a pay off for holiday accrual but some have been asking about sick pay and maternity rights.

It is important to come to a view as to whether your casuals should be defined as 'workers' or 'employees', as they have different employment rights. The test for determining whether someone is a worker or an employee is not straightforward. However the Employment Rights Act 1996 defines an employee as an "individual who has entered into or works under a contract of employment". There is no simple test for determining whether an individual "works under a contract of employment". Courts would look at any written contract (if one exists) and what actually happens in reality. Amongst other tests, there are two core elements that must always be present in a contract of employment:

  • There must be a requirement (whether written or implied) for the individual to provide the work personally and
  • There must be mutuality of obligation. That is if an individual is free to choose whether or not to take on work when it is available and an organisation is under no obligation to offer work, then there will be no mutual obligation and the individual will not be an employee.

Therefore in your circumstances if you are not obliged to offer work, or your casuals are under no obligation to accept this work, then they are likely to be classified as 'workers' rather than employees.

Workers do not enjoy the full protections of an employee, but do have several basic rights:

  • Protection against certain types of discrimination. Depending on the exact circumstances, this may include sex, race, disability and equal pay legislation
  • Rights under the Working Time Regulations, such as paid holiday leave, restrictions on working hours and the right to rest breaks
  • Right to the national minimum wage
  • Protection for whistle-blowing
  • Health and safety protection
  • Protection against unlawful wage deductions.

They may also be entitled to Statutory Maternity Pay and Statutory Sick Pay if they meet certain earnings and length of service criteria. More details for SSP and SMP.

Date:01/02/2011 Posted by: Paula D Ref: #16

We would like to add a policy statement to our Staff Handbook that discourages/limits our hiring of relatives at the same location.  Is this permissible?

To do this you need to be very clear about the purpose of doing it, and ensure that your recruitment practices are scrupulously non-discriminatory; this might make the application of the policy difficult. For example if an individual applies for a post, and you find out through their application or at interview that they are the spouse of someone already working at the same location, not giving them the post because they are married would potentially be discriminatory.

I'm not sure why you do not want relatives to work in the same location as this is fairly common practice. However many companies avoid relatives being in a line management relationship which can cause personal difficulties and lead to perceptions of favouritism in other employees. If you wanted to take this approach, you could take the line that:

"<Company> promotes a culture of effective performance management and our policy is that it is difficult to manage this where relatives are in line management relationships. Therefore our recruitment and promotion policies seek to discourage this. However we also ensure that these policies remain firmly non-discriminatory and that no employee or potential employee will be disadvantaged by these policies."

You will then need a policy in place to demonstrate what would happen in these circumstances and how you would prevent discrimination.
Date:22/1/2011 Posted by: Diana Ref: #15

How long do you need to have worked for a company to have maternity leave.  I've been informed that by law an employee has to be with the company for 2 years.  Our company is Oil Brokering company which is part of the Oil & Gas Sector

All pregnant employees (that is those with a contract of employment) are entitled to take up to 52 weeks maternity leave around the birth of their child. It doesn't matter how long they have worked for you to qualify, and therefore the information you have received relating to a 2 year service requirement is incorrect.

If your employee also has 26 weeks continuous employment with you (extending into the 15th week before the baby is expected), she will also qualify for statutory maternity pay for 39 weeks.

You will find more information related to maternity leave and pay here
Date:21/1/2011 Posted by: Jacqueline Finch Ref: #14
How do you calculate holiday entitlement for shift work employees?
The easiest to administer for regular shift patterns is generally to do a calculation of the number of  shifts the employee is entitled to have off per year. So take the number of shifts they work in a week (or the average) and multiply by their annual entitlement in weeks. So if an employee works four 10 hour shifts per week and their holiday entitlement is say 5.6 weeks (the statutory minimum), then they would be entitled to 4 x 5.6 = 22.4 shifts off per year. For part-time staff you would simply calculate this based on the number (or average number) of shifts per week that they work.

For more complex or irregular shift patterns, it might be easier to do the calculation in hours. So you would multiply their hours per week by their annual leave entitlement in weeks. Therefore if an individual works an average of 40 hours per week and has an annual leave entitlement of 5.6 weeks, then they are entitled to 40 x 5.6 = 224 hours of leave in the year.
Date:18/1/2011 Posted by: I.O. Ref: #13
We are a small company and employ 2 - 4 sales people.  We have 2 sales people that are under performing, having exhausted all avenues to help them achieve their targets, they are still failing to achieve. What process do we have to follow for dismissal?
In these circumstances you will need to approach dismissal on the basis of capability. There is a template Capability Procedure on our website. This is probably overkill for a company of your size, and so you could use a simpler procedure along these lines:

You should invite each of you failing sales people to a meeting with you. You should write to them stating that following several informal reviews of their performance, you now wish to formally review their performance and the reasons for their consistent failure to meet their targets. You should give them the right to be accompanied by a work colleague or trade union representative. At the meeting you should go through the issues and allow them the opportunity to state their case. Following the meeting you should write to them stating the outcome which is likely to be the issue of a warning that they have failed in their performance in relation to meeting their targets, you would be monitoring their future performance (over say 1-3 months depending on your business cycle), and you would wish to meet with them again after this period to review the situation. Make sure they have clear written targets which you can monitor.

After the review period you would again write to them setting up a meeting to review their performance. Again offer them the right to be accompanied. Go through the same process as the last meeting, and at the end (assuming they have not met targets) you should issue them with a final warning that if they again fail to meet their targets within a reasonable review period - 1-3 months, then it is likely that you would need to terminate their contract of employment.

After the review period, write to them setting up a review meeting. In the letter offer them the right to be accompanied, and re-iterate what you wish to discuss, and that should they have failed to meet their performance targets the outcome could be dismissal. So there should be no surprises during the meeting.

At the meeting you should obviously allow them to explain why they have under-performed. However if you are of the view that they have failed in their performance again, you should terminate their contract with the appropriate notice (which you might want to pay in lieu). You should write them a formal letter of dismissal outlining the reasons for terminating their contract. It is also good practice to give them a right to appeal against your decision to dismiss. In a small company such as yours, it is often hard to find someone else to hear an appeal, but if there is another director perhaps they could do it, or someone external to your company could hear it. Otherwise it would just need to be considered by you.

The only other consideration is the length of service of your sales people. If they have under 1 year, then it would make sense to try to complete the above procedure prior to them achieving a years service. In this way you can avoid any possibility of them applying to an employment tribunal for unfair dismissal.

Date:18/1/2011 Posted by: Ann Ref: #12

in light of the abolition of the DRA 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?

From 1st October 2011, there will be no "normal retirement age" and therefore the statement in your handbook is 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."
Date:14/1/2011 Posted by: Nadia Ref: #11
1. I need  method that you could use to record the progress of an individual during induction
2. How I could evaluate an induction process in our workplace?
1. To record induction progress, there are numerous induction checklists available - there are  couple on this website on the 'Induction' page at the end of the downloadable Induction policies and one in the related documents section. You can use these templates to pull together a checklist which best suits your organisation. Try this one as a starting point.

The Checklist will allow you to determine what needs to be covered with the new start, who is responsible for ensuring this is done, and to record when it has been completed. You can also implement a process whereby the individual's knowledge is checked by another manager just to ensure the induction process has been effective.

2. The above process has a built-in evaluation by a more senior manager than the one carrying out the induction. However should you wish to carry out a more formal evaluation of your Company's induction process, then you should use a questionnaire which you should give to all new starts. This can be done following completion of induction, or say 6 months afterwards (or both). You can then collect in these questionnaires and use them to evaluate how effective the new starts think their induction has been. An example of such a questionnaire can be found here.

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