Employment Law, FAQ’s

By | November 22, 2017


Employment Law, FAQ’s

These FAQs cover a large area of specialised, technical areas of employment law. As no two situations are the same, only the basic position is outlined. The answers do not provide a complete or authoritative statement of the law, nor do they constitute legal advice by the author. The information provided is only a snapshot: it does not create a contractual relationship nor does it form part of any other advice, whether paid or free.

Please note, access to these FAQ’s is totally free if you would like to subscribe (No Charge) on www.buyingapub.com, this is free to be read for your guidance and aimed to give you immediate access to helpful advice. If you subscribe you may download this information if you need to.

Please note that the information provided in these questions and answers

  • Provides pointers in the right direction
  • Does not provide a complete or authoritative statement of the law
  • Does not constitute legal advice by the author
  • Does not create a contractual relationship
  • Does not form part of any   other advice, whether paid or free

Data protection and confidentiality

Q. Where can I get general information?

A. The Information Commissioners Office http://ico.org.uk/for_organisations/data_protection

Q. Are my staff entitled to access personal data held by my business?

A. Yes. You must provide them with a copy of their data within 40 calendar
days of receiving it.

Q. Why do I have to disclose personal data to staff making a request?

A. Because the Data Protection Act 1998 gives people the right to access their personal information.

The logic is that personal information is the property of the data subject. The data controller is the guardian of that data.

Q. How can I protect personal data?

A. Provide suitable training to staff or get training yourself if dealing with taking, storing and retrieving information.

Ensure that data subjects know how data are stored and that hard copy is kept securely and electronically stored information is protected by current and regularly up-dated virus protection, firewalls, passwords and so forth.

Q. Does the Freedom of Information Act 2000 apply to me?

A. Only if you are a publicly funded body such as a school.

Q. How do I control staff using social media from disseminating personal data about other members of staff or my business?

A. Have a data protection policy which sets out the limitations on the use of social media in connection with work or work colleagues.

Use of any form of social media or other form of communication (spoken word, e-mail, on paper) which breaches data protection legislation or brings the business or other members of staff into disrepute should be clearly described as misconduct or, in serious cases, gross misconduct which may warrant dismissal, whether summary or on notice.

Ensure that working time is not spent on personal use of social media or the internet generally.

Employment status

Q. What difference is there between being self-employed, in business on my own account and being an independent contractor?

A. These are terms are of similar effect and are used to differentiate between employees and non-employees: self-employed usually covers all three.

Many people who are self-employed are likely to be workers, i.e. give services personally but not necessarily under a contract of employment.

Q. How can I find out what my status is or that of people who work for me?

A. First stop: HMRC website: http://www.hmrc.gov.uk/employment-status/

Check the terms on which services are supplied. Tax and NI status are not necessarily definitive of employment status.

The terms of the contract must reflect what actually happens. A person who provides services to another may have a written contract which says that he is self-employed but if (for example) he is not allowed to substitute his services by sending in another person to do his work or if he is subjected to certain degrees of control by the person/business where he works, a court or tribunal may deem him to be an employee.

Q. What difference does it make whether someone is self-employed or employed?

A. An employee must have tax and NI deducted at source. Wages paid without those statutory deductions may be deemed by HMRC to have been paid net of the amount which should have been deducted, leaving the employer with a tax bill based on a notionally far higher salary and with the risk of a penalty if the tax payment is made after the original due date.

Someone who is self-employed answers only to himself. For example: he takes leave when he wants; works to hours of his choosing; can substitute someone else to provide the services he has contracted to give.

An employee has statutory rights including:

The right to go to an employment tribunal to complain of unfair dismissal after completion of two years service;

The right to written terms and conditions of service (failing which, a penalty may be ordered by an employment tribunal);

The statutory right to notice on termination of employment, depending on the length of service;

The right to paid annual leave, parental leave, etc.;

The right to apply for flexible working;

Mandatory auto-enrolment in the employers pension scheme.

  • An employee is subject to the employers rules and must work to the job description which is part of his contract.
  • Even if a person appears to be self-employed and satisfies the tests to determine such status, he may be a worker who has the right to paid annual leave.

The Employment Rights Act 1996 defines worker and employee.  An employee works under a contract of employment. A worker has a contract to perform work or services personally and is not undertaking the work as part of his own business.

Q. What about one-person companies?

A. If someone is a director of a company and the company has no other
employees, the director is not deemed to be a worker by virtue of the (or any)
office that he holds or by any contract of employment with his company and under
which he works. The director has no employment rights and, conversely, the
company does not have any of employer duties towards him.

Q. Can a part-timer or zero-hours person be an employee?

A. Yes. The employer should take care not to subject them to any adverse
treatment as a result of them working fewer hours than full-time employees.

Q. Is a volunteer an employee?

A. No. However, a written volunteer agreement should be used to confirm the fact that services have been volunteered and why it is that this does not confer any employment rights.

General assistance is available from the National Council for Voluntary Organisations: www.ncvo.org.uk/

Q. What do I need to know about zero hours contracts?

A. They are a form of employment contract which only entitles the employee to be paid for work actually done. These contracts offer maximum flexibility to employers and employees.

Zero-hours employees are free to offer their services elsewhere and may not be available for work if called upon by one of their employers.

Placing a zero-hours employee on enforced stand-by could be deemed to be similar to requiring him to be at a particular place of work. There are advantages and disadvantages.

There is concern about the use of zero-hours contracts as there are many reports of unscrupulous employers paying less than the minimum wage or requiring people to turn up for work then turning them away. Either of these examples present the risk for the employer of employment tribunal proceedings.

Q. What do I need to do if I employ someone?

A. Apart from ensuring tax and NI compliance:

Be sure to comply with all employment rights including automatic enrolment into a pension scheme.

Provide written terms and conditions of employment within 2 months of start date

Have an employee handbook or inform staff that you rely on ACAS procedures.

Small businesses are well advised to have access to external human resource or user-friendly legal advice for help with rapid response to grievances, disciplinary, competence and potential discrimination issues.

Ensure that employment status is confirmed from the outset.

Distinguish between short-term contracts, casual employees and temporary workers – apart from other employment issues, they will be entitled to holiday pay even if only with you for a short time.

Follow fair, transparent and consistent disciplinary and grievance procedures.

Q. What do I have to do about automatic enrolment into a pension scheme?

A. Since October 2012, it has been compulsory for employers to set up and enrol eligible workers automatically into a Qualifying Workplace Pension Scheme and to contribute to that pension. The process has been phased according to the size of the company but by 2017, all employers must comply.

Non-compliance incurs fines from £500 and £5,000 per day depending on employee headcount.

There will no difference for members of staff who are existing members of the company pension scheme unless their contributions are less than the statutory minimum.

Entitlement arises where an employee works or usually works in the UK and:

Earned more than £9,440 a year in 2013-14 (check current levels).

Is aged 22 or over  and under the current State Pension Age

The duty is on the employee to opt out of the scheme if he does not wish to participate for any reason.

The duty is on the employer to:

  • deduct and pay the necessary pension contributions, deal with opt-outs and opt-ins and comply with the record-keeping requirements of the Pension Regulator;
  • educate payroll staff to deal with the pension provisions.

Example dates when the provisions become effective for the following staff numbers in 2014 are:

  • 90-159  1 May
  • 62-89  1 July
  • 61  1 August
  • 60  1 October
  • 59  1 November

Staff numbering 30-58 are entitled to auto-enrolment in 2015.

Where staff numbers are below 30, the implementation dates are from 1 June 2015 to 1 April 2017 on dates determined by the employers PAYE reference number.

Information on cost and staff information communications should be sought professionally.

Q. What about equality?

A. The Equality Act 2010 makes it unlawful to discriminate against, harass or victimise people on the ground of the protected characteristics of: age; disability; gender re-assignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

The provisions apply at all stages of the working relationship from the plans to hire, through advertising, interview, selection, engagement, termination and post-termination.

The key to coping with equality is training and up-dated training for staff or for you, if you are running a business.

Q. What has to be done about a request for flexible working?

A. Employees have the right to request flexible working.

The employer has the right to refuse the request but the refusal must be given due consideration and made on properly justifiable grounds so as to avoid a claim for constructive dismissal or for discrimination if the refusal is attributable to any protected characteristic.

Q. What should an employer do about health issues?

A. Keep accurate records of health absences and the reasons for them.

Ascertain patterns of absence.

Ensure that any health-related absence is not associated with disability.

If absence is disability related, consider whether any reasonable adjustments can be made to reduce absence levels.

Have all sickness absence properly certified.

Have access to an independent occupational health professional resource.

Take advice on whether disability is an issue.

Be cautious about stress related to working conditions in case this is the precursor to a claim for psychological injury.

Health and safety at work is of fundamental importance as breaches of requirements can lead to intervention from the Health and Safety Executive or the Local Authority, depending on the type of premises. The Local Authority is usually responsible for enforcement of health and safety law in pubs. Inspections usually result from a complaint, often from a member of staff.

Employees reporting concerns about health and safety are whistle-blowers. They must not suffer a detriment or dismissal as a result.

Q. Who is entitled to paid holidays?

A. All employees and workers are entitled to paid annual leave.

An employee who is taken ill whilst on leave may be entitled to replacement of the days of sickness with further holiday.

Pay depends on sick pay provisions: an employee who is entitled to contractual sick pay may be entitled to pay for the replacement holiday days.

Contractual provisions on sick pay, including proof of illness by certification can properly be contained in the contract of employment.

A self-employed person is not entitled to paid leave.

Public holidays, if taken as paid leave, are included in the statutory period for paid leave. Contractual provisions may differ.

The contract of employment should cover whether religious holidays are to be taken as part of statutory or contractual leave (i.e. whether paid or unpaid leave).

Q. How do the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) affect me when I buy a business? (Taking on Existing Staff)

A. Anything to do with TUPE needs access to textbooks, encyclopaedias of employment law, recent case law and professional advice. However …

The starting point is that purchasing a business involves taking on the existing staff on their current terms and conditions: it is not permitted to change any contractual entitlement.

The approach to TUPE, as the purchaser of a business, is on the basis of due diligence: the paperwork will tell you what to expect – who is employed at the time of the transfer, the terms and conditions and conditions of employment which will transfer and what the purchaser is taking on in terms of current disciplinary, capability and/or grievance issues.

Look out for the contents of the employment handbook of the transferor in case things like the policies and procedures are contractual.

The legislation is contained in the Regulations: they must be read, either by the purchaser or a legal specialist. A TUPE transfer should not be approached without the utmost caution to assess the liabilities for and obligations to staff.

TUPE affects the transfer of part of a business. Therefore, if the purchase is of one unit in chain or group or a function carried out by part of a business, the Regulations apply.

TUPE applies to the transfer of services and to outsourcing so that a business using a service provider or a single worker from an external source may be required to transfer that employee to the purchaser and the purchaser will be obliged to take that employee.

It is automatically unfair to dismiss an employee for a reason related to the transfer but it is possible to dismiss TUPE’d staff for an economic, technical or organisational reason. If, say, the purchaser wishes to rationalise staff and make redundancies, the transferred staff must be included in the pool.

There is some variation of the rules under TUPE where the business that is being purchased is insolvent. This is an area where professional advice is essential.

Q. Do personnel in residential accommodation have the right to stay in that accommodation if they are dismissed?

A. Check the contract of employment.  The terms should provide for the employee being a service occupier who occupies the employers premises in order to perform his duties as an employee.  No tenancy is created.

The contract of employment should provide:

There is no right to stay when notice is given to termination of employment.

Occupation of the premises is on licence to reside in the accommodation so as to be able to fulfil the duties of the job.

Contractual notice of termination of the contract of employment is the same period of notice that will be given to vacate the premises.

If the employee does not leave of his own accord at the conclusion of the notice period, an order for possession must be sought in the county court.  During any period of unlawful occupation, the employer will be entitled to seek compensation which will be recoverable by order of the court.

Even if the contract does not make it clear that there is a service occupancy on licence, the court will examine the factual position to assess whether there is a licence. There will then be an assessment of what is reasonable notice to quit. This is usually equivalent to the notice term but some adjustment may be needed in cases of summary dismissal.

The employer seeking the departure of an employee from a service occupancy is that of standard possession proceedings in which the employer will need to show:

Premises were occupied for duration of employment and for better performance of the employees duties;

Employment has ended or that proper notice to quit has been given;

The employee has been given adequate time to vacate;

No new arrangement has been made for rent or rent by any other name to be paid during the extended occupancy.

In Whitbread West Pennines Ltd v Reedy [1988], the Court of Appeal held that a former employee was not entitled to stay in the service accommodation pending unfair dismissal proceedings in which he sought reinstatement.  Further, in Ivory v Palmer [1975], it was held that even where the dismissal was wrongful (i.e. in breach of contract, the licence to occupy terminates with employment.

The answers to these FAQs have been prepared by Linda Goldman, Barrister, at Henderson Chambers, Temple, London, EC4Y 9DB: www.hendersonchambers.co.uk , 020 7583 9020.

Linda Goldman is contactable through:- goldmanbrook@hendersonchambers.co.uk

These FAQ’s are for your guidance, more complex or specific issues, you may or will need to consult a specialist.

For help email:- info@buyingapub.com

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