Dismissal With Less Than 2 Years’ Service


In April 2012 the length of service required for employees to claim unfair dismissal was increased to two years. Many business owners clapped their hands as this would now make it easier to dismiss someone…but does it.

We have several calls a week from employers asking how they can dismiss someone with less than two years’ service.

The first point to consider when dismissing employees is whether they are covered by any of the 9 protected characteristics, age, sex, sexual orientation, religious belief, maternity or pregnancy, gender reassignment, civil partnerships, race & disability. If they are, and let’s face it we are all male or female so everyone is covered by sex, then you may need to approach the dismissal in a different way to ensure you are protecting your business from any potential discrimination claims.

The second point to consider is are you dismissing the employee for any of the following:

  • Bringing proceedings against the employer for breaking certain statutory employment rights
  • Refusing to forego a right under the Working Time Regulations
  • Seeking to enforce rights under the National Minimum Wage Act
  • Making a protected disclosure under the whistle blowing legislation
  • Seeking to exercise the right to be accompanied at a grievance or disciplinary hearing
  • Health & Safety
  • If so then the dismissal could be considered “automatically unfair” in which case the employee just has to show that the dismissal was for one of those reasons and does not require 2 years’ service.

Have you made the employee aware of the issues or their performance? If you have and nothing has changed and you are confident that none of the above apply then I would recommend following best practice and inviting the employee to a meeting. Explain that you have discussed with them the issues and unfortunately nothing has changed and therefore you will have to dismiss them. You will need to give them their contractual notice and any holiday pay that is due. Give them the statutory right to be accompanied by a trade union representative or work colleague and also give them the right to appeal.

You can just invite them in and dismiss them but you may want to consider what this may do to your reputation as a business. It could very soon get around that you ‘dismiss’ people unfairly. I always think how I would like to be treated. Treat people fairly and reasonably. Would you like to be called into a meeting and told you were ‘sacked’.

Also by following best practice you are protecting your business if at a later stage the employee decided to bring a claim for discrimination that you were unaware of.


An Employers Guide to Adverse Weather


With the disruption that’s been caused with the recent snowfall and adverse weather conditions, and reports indicating more to come, we come up with an employers guide to adverse weather that  highlights the issues you may face and practical advice on dealing with them:

What if my employee cannot get to work due to the severe weather conditions?
Employers are not obliged to pay employees if they are unable to get to work and carry out their work required by the company. However, employers can choose to pay employees as a goodwill gesture.

What if my employee has to stay at home and look after their child due to a school closure?
This is a popular problem that most employers face. Employees are entitled to time off for emergencies related to their dependants. This time however can be unpaid.

Can my employee work from home?
It may be worth looking into whether your employee is able to carry out some of their day to day duties and work from home. If an employee suggests working from home they are only entitled to be paid for work carried out so you can pay employees pro rata for any hours worked. However, this can be difficult identifying and proving exact hours worked. If you as an employer agree that your employee can work from home, you should expect to pay them their normal rate of pay.

Can I make my employees take the time off as annual leave?
Employers cannot force employees to take any time off as annual leave. You can however decide between employer and employee whether they should take their time off as annual leave, unpaid leave, or possibly make the time up.

Due to the temporary nature of adverse weather conditions, you may wish to exercise good will when dealing with the above issues, and pay employees who cannot attend their normal place of work through no fault of their own.

Also Read: Ensuring your staff achieve a good attendance record


Do staff holidays add up?


While we all look forward to our holidays, calculating holiday entitlement for staff can be difficult and confusing, especially if you have part-time workers.

In April 2009 the holiday entitlement for a full-time employee increased to 28 days or 5.6 weeks paid leave per year. There is no statutory entitlement to paid leave for public holidays. Any right to paid time off for such holidays depends on the terms of the employment contract. If your business is closed on a public holiday, then you can include the public holidays as part of the statutory 28 days or 5.6 weeks holiday entitlement.

The holiday entitlement due to employees depends on the number of days that they work. This is where the confusion arises. Holiday entitlements for a full-time employee are based on the number of days a week they work, not the hours that they work.

For example, if an employee works five days a week and seven hours a day, they are entitled to 28 days holiday. If an employee works five days a week and two hours a day, they are also entitled to 28 days holiday. They will only be paid for the hours they would have normally worked.

5 days a week 28 days
4 days a week 22.4 days
3 days a week 16.8 days
2 days a week 11.2 days
1 day a week 5.6 days

If you have included the bank holidays in the calculation, then more confusion arises. Let me explain.

At the beginning of the holiday year you will need to look at which days the bank holidays fall on. Most are Mondays. You will then need to look at all employees who work four days or less, and if a bank holiday falls on a day they normally work, you must deduct that from their holiday entitlement. Once you have deducted all of these, you will then be left with the days they can then take as holiday for the rest of the year.

Part-days cannot be rounded down, they can only be rounded up. Or you may want to consider letting the employee come in late one day, or finish early.

If you currently give employees who work less than five days a week all eight bank holidays, then you are giving them too much holiday, which means an additional cost to the business. It also means they have more holiday than employees who work five days a week. Interestingly, if an employee works more than five days, the holiday entitlement does not increase.

You have to ask yourself – can your business really afford that additional cost?


Secrets to surviving the office party


It’s crept up on us again, that time of the year of the work xmas party. Lots of us may be cutting back & not throwing wild & extravagant bashes for our employees, but almost every company will be having some sort of holiday get-together. We’ve put together a list of 8 top tips to get you through yours…

We’re not trying to be a party pooper… this is the night your supposed to let your hair down, have fun with your co-workers & employees, but you’ve got to strike that balance. Have too much fun & you might find yourself in a spot of bother!

You’ll want to encourage all your staff to attend the Christmas party, but don’t make it a written rule that everyone has to. Remember Christmas is a Christian holiday & some members of staff may not want to come along due to religious beliefs. If this is the case in your company, why not scrap the ‘xmas’ theme & just make it a staff night out? Remember that if your get-together is out of office hours, some people may not be able to come due to family responsibilities.

If your party involves staff bringing along a ‘secret santa’ gift, you might want to ask that all gifts be non-offensive. We’ve all been at that party where ‘Annie the Office Accountant’ gets a saucy little number from Ann Summers, & while we’re sure Annie would see the funny side, some inappropriate gifts have sparked complaints in the past & could be seen as harassment.

If you’re inviting employees’ partners to the event, the invitation should include partners of the opposite and same sex, as well as husbands and wives, to avoid potential sexual orientation discrimination claims. You should also extend the invitation to any employees on family related leave (i.e. maternity or paternity leave), or those absent through illness or injury.

Avoid what’s known as ‘tipple tattle’. Don’t discuss promotion, career prospects or salary with employees or talk about any issues, which would be more suited to a formal appraisal or private meeting.

Be careful if you provide free drink or put a credit card behind a bar. Most tribunal claims after office parties are as a result of excessive drinking & inappropriate behaviour, more commonly with employees claiming sexual harassment or acts of violence. Try & limit the amount of alcohol that’s provided & encourage your staff to act responsibly, keep an eye out for the office junior and don’t allow under-18s to drink.

Your employment policies on bullying, harassment & discrimination still apply at the office party. Make sure everyone knows this, what the policies are & what is expected of them. An innocent comment or advance under the mistletoe between co-workers could end up costing you as the employer, if a tribunal were to characterize the behaviour as victimization or harassment.

If employees are at a party drinking alcohol provided by you, then you are responsible for them & their actions. If a member of staff has clearly drunk too much & is planning on driving home then you, as their employer needs to take responsibility. Consider organizing a mini-bus to get employees home safely or provide numbers for local taxi firms.

Disciplinary issues can often arise when employees fail to show up for work the morning after a party, more often for alcohol related reasons. On occasions such as this, your normal disciplinary rules for unauthorized absence should be applied. Employees should be warned of the consequences of pulling a sickie the day after. Make sure you provide plenty of non-alcoholic drinks and food at the party to minimize this risk.


Ensuring your staff achieve a good attendance record


Does your business have an absence problem? How much is absence costing your business? It is important to monitor just what is going on.

It can cause so much disruption to the business when one member of staff phones in sick. It is therefore important to ensure that it is well managed and absence levels kept under control. If you have employees who are regularly off sick it can really affect the morale of those who are left to cover their workload, and staff can see managers failing to deal with it as a weakness in their leadership.

Steps to take

Your absence policy should set out what the business expects from employees, explaining what they must do if they are sick, who they must contact and by what time. I would also recommend including this procedure in the employment contract discussed at induction.

One way to start controlling absence is by conducting a return-to-work interview on the employee’s first day back at work, even if they have only been off for one day.Managers need to be investigative and counselling in their approach during the interview, to help uncover any underlying health or work problems an employee might have. The purpose of the interview is to:

  • Enable the employee to explain the reason for their absence.
  • Ensure the employee is well enough to be back at work and see if they need any further support. In the case of a long-term sick absence, or recovery from a serious or traumatic illness, some people may benefit from coming back on different hours to help them readjust to work.
  • Assess whether the reason given is genuine.
  • Complete a return-to-work interview form.
  • Emphasise the importance of attendance and why it is continually monitored.
  • Raise any concerns about their attendance record and decide if further action is needed.

You must be fair and consistent, and treat all staff the same. By regularly monitoring absence all you will start to see a decline in staff sick days, which will save you money.