All relationships require a beginning. Employment relationships can be as challenging and rewarding as personal relationships. It is therefore important to ensure that your recruitment process analyses all elements that may affect future relationships and its adherence to employment law legislation. It is assumed that both parties enter this contract at any stage verbally, written or implied voluntarily. Employment law legislation helps employers meet the minimum standards required for a healthy relationship.
As a prospective/ new employee it is important to understand the Company Strategy. A transparent strategy allows you to promote your business as it enables new employees to see the direction the company is working towards and the potential growth and job security that this offers. It also gives potential candidates an indication of development programmes that are offered and therefore what career opportunities are available. The feeling of belonging is an important emotion of increasing loyalty. Hierarchical Structures give an insight of potential movement within a Company regardless of size. If your desire is to move your way up the company ladder, you need to know there are going to be roles available.
A review of your Companies Demographics will help you understand where your employees come from and then what type of workforce is available to you. From this you will understand any challenges that you will face when recruiting and what plans you will need to put in place to recruit the right person to the right job. Market Influences: An evaluation of what is happening within your area with similar business may assist you with tracking your business growth and potential issues. Do you have any new competitors on the horizon that may attract your employees which could leave with a labour force issue? Equally a business that is struggling may go into receivership and then give you a situation where you have the opportunity to recruit some key and highly trained employees.
Importance of determining Employment statuses
The differences – 3 Examples
Type of Employment Status
A contract of employment in place either written or verbal
Payment is received for work. It would be agreed on what interval at the point of agreeing the contract Work has to be completed, by the agreed worker, however they would be able to provide an alternative worker if agreed in advance. There is a set period of time that the work is expected to last. Often if works overrun then penalty clauses are built in as part of agreed contract.
Employed under an employment contract
The contract details: Rights, responsibilities and duties.
Regular payments on agreed Company terms i.e. 4 weekly, Monthly. Guaranteed minimum wage protection
Statutory paid holiday entitlement
Working time directive on rest periods and number of hours worked per week Protection from discrimination
Is an individual who takes sole responsibility for whether their business is a success or fails They are responsible for paying on tax and NI contributions and receiving wages They do not receive paid holiday leave or sickness benefits
They have no employment rights
They can be both employed and self employed at the same time.
To ensure they know their employment rights if they are entitled to them. Such as maternity/paternity leave, sick leave, holiday leave entitlements. Ensure correct payment of tax and National Insurance. If unchecked and incorrectly paid then the employer is liable for mispayment of tax and it would be expected that the employer resolves this. Causing unnecessary expense and reduced levels of trust. Ensure that the individual is fully aware of what type of benefits they would be entitled too.
During – Employment Relationship
Importance of a Work Life Balance
This is about how an individual combines work with the other areas of their lives, such as children, family, friends and hobbies. There is no definitive answer or formula, and this will range greatly for each individual. It may also change on a daily basis depending on impacts outside work. Just as impacts inside work can affect an individual’s home life. Is there an answer?
No – not just one. As each person is individual so a flexible number of options available will suit a diverse workforce. The Working Time Directive covers Rest periods, Night working, Working hours and Holidays.
Workers are entitled to a rest period of 11 hours in a 24 hour period, and must receive one weekly rest period of 24 hours in a 7 day period. Shifts of 6 hours or more also entitle workers to a 20 min rest break. It is worth making note that there are different rules applied for young works and night workers. And therefore legislation will need to be adhered to if employment is undertaken in these areas.
A night workers hours should be based on the principle of an average 8 hours within 24 hours over a 17 week rolling period. For businesses that use an electronic tracking of hours for example Tesco, whereby an employee clocks in and out. A review of the night teams working hours over a 17 week period would be accurate. Manual processes would be more difficult to maintain and analyse, but it is imperative that a secure process is built in order to manage this.
It is an employer’s responsibility to ensure that an employee or contract worker do not work more than an average of 48 hours per week over a 17 week period, unless the employee or contract worker has made the decision to opt out of the Working Time Directive. As mentioned before it is an employer’s responsibility to ensure that adequate records are kept to show adherence to this legislation. Some roles can be excluded from this measure and those are roles that are unmeasured such as executives or family workers i.e. nannies/au pairs.
Workers are entitled to a minimum of 28 days or 5.6 weeks paid annual leave per year. This entitlement must also be applied pro rata, and is not able to be rolled over into a new holiday year. Workers continue to accrue their holiday entitlement whilst on maternity leave or long term sick and this will need to be taken before the end of the holiday year.
Family/Parent – related legal support
There are a number of pieces of legislation that support families and parents. These include the following:
There is a great amount of information relating to maternity leave, and a wealth of sites and government documentation that will assist employers on how to best support members of their workforce who are pregnant. Employees are entitled to the following-
Time off for antenatal care – an employer can ask for proof of appointments. A maximum of 52 weeks maternity leave. This is made up of 26 weeks ordinary maternity leave (OML) and 26 weeks additional maternity leave (AML) AML is dependent on length of service and length of leave should be discussed at regular meetings with the employee. Maternity leave can commence any time after the 11th week before her expected week of childbirth (EWC) I find it useful to use the Government website that allows employers to enter key dates supplied to guide you when the key weeks are. (https://www.gov.uk/employers-maternity-pay-leave/entitlement) A mother is legally unable to return until two weeks after the birth of her baby. After OML a woman is entitled to return to the same job she held prior to leave with all the rights and benefits she had including any annual pay raises.
After returning from AML she may only come back to the same job if reasonably practical, otherwise an alternative must be offered. Maternity pay is paid for the first 6 weeks at 90% of average earnings and then 33 weeks at £138.18(April 2014) It is worth noting that the average weekly earnings can be increased by increasing wages in the 8 weeks leading up to the 15th week before the EWC. A woman is also now able to transfer some of her maternity leave – Please see notes on Paternity leave for further details. Throughout the duration of her pregnancy a woman must not be financially worse off, and a full understanding of the Equality and Diversity act will assist you from making any decisions which would treat a woman unfairly.
Ordinary Paternity leave allows a man to take two weeks leave. This has to be taken within 56 days of the birth. If only one week is used the second week will be lost. This period of leave cannot be extended for multiple births. Paternity pay is paid at £138.18 (April 14) or 90% of average weekly earnings, whichever is lower. Additional paternity leave APL can be taken once a mother returns from Maternity leave and take up to 26 weeks leave. An employee is entitled to return to the same job they held before and any pay increases, benefits whilst they have been off.
Employees will need to have 26 weeks length of service ending in the week that they are due to go on adoptive leave. A thorough recruitment process will ensure that a newly employed member of staff will have advised you of an ongoing application. They are then entitled to take up to 52 weeks leave. Within this period they may be entitled to 39 weeks statutory adoption pay. In turn a partner may also be entitled to paternity leave or additional paternity leave. Proof from an adoption agency must be provided and leave will commence from the date the child comes home to the family. Adoptive leave pay is paid at £138.18 as with other statutory pay. (Ref: http://www.acas.org.uk/index.aspx?articleid=1828)
An employee is entitled to have time off to deal with a ‘family emergency’, or someone that they look after. There is no set list of what a dependant could be this something that would be discussed at a return to work. However a list within your Companies staff handbook or intranet would be a useful resource. Persons covered (this list is not exhaustive):
Someone that depends on you for their care.
This leave covers emergencies and not for events that you have notification of, such as cover for school holidays. There is no set limit for how much time an employee can take, however an emergency is not an ongoing event and alternative policies, such as holiday, sickness or unpaid leave may need to be arranged if the situation is not easily resolved. In these situations an employer does not have to pay the employee for time off, however a fair approach should be adopted and again transparency through guidelines within staff handbooks and company intranet is advisable. A supportive and easy to access policy will underpin your Company ethos and values, and send out positive message to would be employees.
Why should employees be treated fairly in relation to pay?
To pay employees who:
Complete similar work
Through job evaluation is deemed to be of an equivalent level Produce the same amount of skill, decision making/own initiative and effort, Whilst this may morally be wrong, and be in breach of the Equality Act 2010. Allowing your business act in this manor without safe guards and checks to prevent this will allow you to be liable if found guilty. Firstly, financially this could be devastating. One claim may lead to another, and publication of findings and court cases will be damaging to your Companies reputation.
This in turn will lead to probable issues in recruiting new personnel and increasing/continuing current business. Secondly issues may arise through misguided reactions to other individual cases, which is why a periodic review of payroll is important. Any amendments in salary for an individual or team should be sense checked with a member of the HR function or with your employment law specialist.
The Equality Act 2010 has been put in place to assist ‘employed’ individuals or persons classed as ‘workers’ to work in a safe and fair environment. Some parts of the legislation protect certain characteristics that would be vulnerable in the work place.
These protected characteristics would prevent an individual from being treated less favourably than another person would be. Direct Discrimination i.e. Turning an employee down for promotion because they were undergoing
Gender reassignment. Indirect Discrimination occurs when a policy or procedure treats someone without a protected characteristic less favourably. I.e. advertising and recruiting for a Handyman, when a woman could do the job also.
Occurs when a person/s treat you in a manner that makes you feel threatened, humiliated or distressed. This can be over a sustained period of time or sporadic/individual events. This is based and measured solely on the individual in receipt of the unwanted behaviour and should be investigated fully, following company guidelines. Employees should receive dignity at work training and understand your company values to prevent any behaviours being judged as the norm’
‘Picking on someone’ for any reason, including protected characteristics, can also come under harassment. It may be because of where they live or what colour hair they have or how large they are. It can be sustained over a period of time or on an individual occurrence such as being blamed for an error. The way this makes a person feel is equally as damaging as forms of harassment, therefore a quick and prompt resolve is important. What is a psychological contract?
This an element of an employee’s contract of employment which may not actually be documented, but is what is ‘implied’ to an individual either at interview or from ways of working within your organisation. I.e. Contracted hours state 9-5 but it is expected that to finish the job, you stay until it is done. To go on time will be frowned upon. Or working Sundays is not in your contract, but you would be putting your team under pressure by not taking your turn. These are the things that actually happen on the ground.
Clear statements of terms and conditions with updated and relevant staff handbook allow staff to see all the policies. Good training of managers and team leaders will demonstrate the company values. Challenging any decisions and what the snow ball effect would be is also a key way to see how policies will be interpreted.
The end of an employee relationship
There are three main ways an employment relationship can come to an end:
When looking at dismissing someone both the reason and the process must be fair.
Dismissal is deemed fair when under the following headings:
Capability – ill health or performance
Conduct / Misconduct – a different process for gross misconduct
Redundancy – less staff required
Legality – breach of right to work
Any other substantial reason – Resignation/Retirement/Death/TUPE or End of fixed term contract.
As long as your process is solid and well documented.
This process becomes unfair when the way in which it is handled is deemed unfair or poorly executed. If one of the 9 protected characteristics is proven to have been a contributing factor.
Importance of Exit Interviews
It is recommended that a member of the HR function conducts any interview with a member of staff that is leaving. The function of that representative should be at least an equal of the person being interviewed.
Employee: It gives them an opportunity to discuss the real reasons for leaving. It will help you understand if there is something that can be changed. However it is worth noting that by this stage it is very difficult to change someone’s mind; however they will feel that they have a voice.
Employer: Helps you to understand any key management weakness’s that you may have or issues with bullying. It will be like a puzzle, building up a picture if you have a high level of turnover from one specific area. You will be able to build a training programme and invest time through mentoring when establishing the facts. It will also allow you to prevent where possible any constructive dismissal claims.
When looking at starting redundancy an organization should first ensure that it looks at the reasons why? Is it going to benefit the business as negativity at starting a process such as this will create a high amount of negativity? Review your company’s formal policy and procedure on redundancy. Also have you a formal agreement a trade union or employee representatives? A clear plan should be evident and look at the following areas:
Keep your plan up to date and flexible
Identify the Pool for Selection
Area of the business that needs to be reduced
Are the alternatives e.g. – reduction in working week / pay
Treat people like human beings
Criteria for Selection
Length of Service
Skill and qualification
At the beginning of the process the business should establish how these criteria will be weighted.
Documented scoring programme
Appeals and Dismissals
A clear process should be place to assist the appeals/dismissal process Right to be accompanied at meetings
Continue with meetings if it is felt that there are more questions to be answered. Suitable alternative employment
Can you replace somewhere else within organization or sister company Alternative job within same area using job matching skills
To receive must have worked for the company for two or more years Based on age, weekly pay and length of service
Counseling and Support
Assist with building a new CV
Training on interview skills
Use contacts within the business to identify job opportunities
(Ref:http://www.cipd.co.uk/hr-resources/factsheets/redundancy.aspx#link_2) The Impact on those left behind can be substantial. There is something called ‘Survivors syndrome’ where they do not feel lucky to still have a job, but guilty for those that have gone. It creates unease and lack of job security with may incur unseen increases in key skills labour turnover. It is important to keep all employees communicated too with relevant and update information on the company’s prospects. Continue to talk to them, offer reassurance where needed to continue to support morale issues. This will help those that are left feel valued and more secure.
CollinsonGrant – Employment Law for managers -5th Edition June 2014. Martin,Whiting &Jackson – Human Resources Practice – 5th Edition.