October HR and Employment Law FAQs
01.10.2023
1. We’ve got an employee who has been off sick for some time. Do we have to comply with particular legal requirements if we want to get a medical report from their GP?
Yes. If you want to get a medical report from an employee’s GP (or a specialist who has been responsible for their care, or your Occupational Health Practitioner (OHP) if they have previously been involved in the employee’s care), then you will need to comply with the Access to Medical Reports Act 1988 (known as AMRA).
AMRA requires you to obtain the employee’s written consent before asking for a medical report and to inform the employee in writing of their rights under AMRA (such as the right to see the medical report before it is sent to you, the right to ask the doctor to amend the report before it is sent to you, or even refuse consent to the doctor sending you the report).
Note that AMRA does not apply where you ask for the employee’s medical notes from their GP without an accompanying report, or if you request a medical report from a specialist or OHP who has not been involved in the employee’s care. However, even when AMRA does not apply, the OHPs’ ethical guidelines mean that you still need to get the employee’s written consent to you seeking a medical report.
In either case, you also need to ensure you comply with the UK General Data Protection Regulation. This means you must identify both an ordinary legal basis for processing the employee’s personal data and – as health data is special category data – satisfy an additional special category condition for the processing. You will also need to tell the employee what you will do with the data you receive (for example, by reference to your employee privacy notice).
If you are a Make UK subscriber, you can speak to your regular adviser for guidance about managing situations where an employee is absent from work for medical reasons, including further information about AMRA and your data protection obligations. You can also access guidance in the HR & Legal Resources section of our website. In addition, Make UK’s HR Consultancy team can provide help with stress and wellbeing surveys, as well as supporting you in drafting and implementing a stress/mental health policy. If you are not a Make UK subscriber, please contact us for further information about how we can help.
We will be exploring how employers should manage situations concerning employees who are absent from work due to work-related stress (including a case study) at our in-person Autumn Employment Law Updates – click here for further details.
2. Our business needs to cut costs, meaning redundancies are looking likely. Should we ask for volunteers?
You will need to assess what is best for your business, as there is no “one size fits all” answer. Possible advantages are that asking for volunteers might:
- avoid the need for compulsory redundancies altogether;
- have a less demoralising impact on your workforce;
- reduce 'survivor guilt' (i.e. employees who remain in the business thinking 'it should have been me');
- help to show employees that you are seeking to minimise the effect of possible redundancies; and
- be helpful if any unfair dismissal claims were to be made (as an effective 'volunteer programme' clearly demonstrates that you sought to minimise the impact of redundancies).
On the other hand, possible disadvantages of seeking volunteers for redundancy are that it may:
- be more expensive than compulsory redundancies if you offer enhanced terms to attract volunteers (especially if most volunteers are long-serving employees who will receive large redundancy payments);
- require you go through both voluntary and compulsory stages if too few employees volunteer;
- result in a skills/experience imbalance if the process is not managed properly; and
- raise false expectations and result in a loss of morale amongst employees if the process is not managed properly.
Remember that you do not need to accept all applications for voluntary redundancy, particularly if you receive more applications than you need or you consider that it is in the long-term interests of your business to retain certain employees.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about redundancies, including template policies and drafting guidance, in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
3. A witness in disciplinary proceedings is only prepared to give evidence on an ‘anonymous’ basis. How should we deal with this?
As a first step, try to establish why the witness feels the need for anonymity. If the witness is concerned about reprisals from the employee who is under investigation, reassure them that the employee has been told not to raise the matter directly with fellow employees or approach any witness. Emphasise that if an employee breaches this instruction, this will lead to disciplinary action in its own right.
If the witness is adamant that they will only give evidence on an 'anonymous' basis, you will have to balance the need to protect the witness and the need to provide a fair hearing for the employee under investigation.
You should take a detailed statement from the relevant witness and obtain other corroborative evidence if possible. If practicable, you should give the employee who is under investigation a copy of any 'anonymous' witness statement, redacted or with omissions, to avoid the witness being identified. (Note that such a witness statement will not have been anonymised for the purposes of data protection law (i.e. it will still contain the witness’ personal data, and must therefore be treated in accordance with data protection law requirements)).
Since some informant witnesses may have reason to fabricate evidence, you should make reasonable enquiries as to the witness’ character and any potential reason they may have to give unreliable evidence.
Even if you agree to try and protect a witness’s identity, be careful not to give the impression that you are guaranteeing complete confidentiality. There is always a risk that in subsequent legal proceedings, including employment tribunal proceedings, a court or tribunal might order you to disclose details of a witness statement, or notes of an interview.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about disciplinary matters, including template policies and drafting guidance, in the HR & Legal Resources section of our website. You may also find it helpful to read our guide, “How to - deal with reluctant witnesses in disciplinary and grievance proceedings ”, which covers this tricky issue in more detail.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
4. One of our employees has just been sent to prison. Can we dismiss them?
The fact that an employee has been sent to prison does not terminate their employment and dismissal in these circumstances should not be a ‘knee-jerk’ response. You will need to investigate the individual circumstances of the case before deciding whether dismissal is appropriate. If an employee is imprisoned for a fairly short period, for an offence unrelated to their work, it might be considered ‘reasonable’ for you to hold open their job until they are released.
Factors to consider when deciding whether it is appropriate to dismiss will include: the length of sentence imposed; the nature of the offence (and whether it relates to/impacts on the employee’s job); the effect of the employee’s absence on the business; and the damage (if any) done to the employer’s reputation.
If an employee is imprisoned for a considerable length of time, it might be fair to dismiss on the grounds that the employee is no longer able to perform their contract of employment (i.e. dismissal on grounds of ‘capability’). Similarly, if the nature of an employee’s conviction gives reasonable grounds to doubt an employee’s continuing suitability to carry out their role, or the circumstances of the imprisonment reflect negatively on your business, it might be possible to dismiss fairly for ‘conduct’, or ‘some other substantial reason’ (SOSR). However, you will need to act reasonably and follow a fair procedure to avoid a successful unfair dismissal claim.
Remember also that the processing of information concerning criminal offences or convictions is subject to restrictions under data protection law – Make UK subscribers can read more in the Employee data and monitoring section of our HR and Legal Resources. In addition, Make UK subscribers can speak to their regular adviser for guidance on the law and best practice on managing dismissals. Further information on relevant topics, including template policies and drafting guidance, is also available in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].
5. Do we have to allow employees time off for routine medical or dental appointments?
Aside from ante-natal appointments and pre-adoption appointments, there is no specific statutory entitlement for employees to take time off work for appointments. This means that (unless there is an express right in the employee’s contract) the employee will not have a legal right to take time off for a routine medical or dental appointment. If, however, an appointment to visit a doctor, dentist, optician, or clinic cannot be made outside working hours, it is good practice to allow employees time off to attend them. You should also be consistent in how you deal with these types of requests to avoid detriment or discrimination related claims.
If you are a Make UK subscriber, see our template Policy – time off for medical and dental appointments. If you are not a Make UK subscriber, please contact us for further details.
September HR and Employment Law FAQs
01.09.2023
1. What is a “stress survey”?
A “stress survey” is an HR tool which some organisations use to gain a broad indication of how well their staff rate their employer’s performance in managing the risks associated with work-related stress.
Typically a stress survey (which some employers prefer to call, or incorporate into, a “wellbeing survey”) involves asking a company’s workforce (or particular divisions or departments) a series of questions focusing on six key areas which, if not properly managed, are associated with poor health and wellbeing, lower productivity and increased sickness absence.
A typical survey would present employees with statements such as “I have unachievable deadlines”, “I am pressured to work long hours”, “I can decide when to take a break”, etc. and ask them to what extent the statement applies to them (i.e. “never”, “seldom”, “sometimes”, “often”, or “always”). Surveys can be carried out in face-to-face or telephone interviews or via an online questionnaire (with answers anonymised in all cases).
If the survey results identify trends, for example showing consistent pressure to work long hours in a particular department, this can act as a prompt for the employer to review job design and working practices in the relevant area.
Employers should, however, be wary of conducting such a survey if they are not actually prepared to take action to address the issues the survey identifies. Failure to do so could potentially put the employer at more risk in the event of a claim than if they had not done the survey in the first place.
Make UK’s HR Consultancy team can provide stress and wellbeing surveys and assist companies in conducting them, analysing the results and identifying recommended actions to address any issues that are revealed by the survey. We can also support you in drafting and implementing a stress/mental health policy. If you are a Make UK subscriber, you can speak to your regular adviser for further information and see our “Checklist – points to consider when introducing a mental health policy” in the HR & Legal Resources. If you are not a Make UK subscriber, please contact us for further details.
We will be exploring how employers should manage situations concerning employees who are absent from work due to work-related stress (including a case study) at our in-person Autumn Employment Law Update – click here if you would like to attend.
2. I’ve heard that changes have been made to the Shortage Occupation List – have any roles been added which could be of use to manufacturers?
Various skilled roles have been added to the UK’s “Shortage Occupation List” with effect from 7 August 2023, although the additions are not directly related to manufacturing (see here). (The Shortage Occupation List lists roles which the UK Government considers to be in short supply within the UK resident labour market; as such, these roles benefit from more relaxed eligibility criteria for sponsored work visa applications). The roles that have been added to the list recently include:
- bricklayers and masons
- agriculture and fishing trades not elsewhere classified (fishing industry)
- roofers, roof tilers and slaters
- carpenters and joiners
- plasterers
- construction and building trades not elsewhere classified.
- fishing and other elementary agriculture occupations not elsewhere classified.
It is also worth noting that changes were made with effect from 9 August under the EU Settlement Scheme on switching from student into work routes in-country, and on students being accompanied by dependants. In addition, from September 2023, the holders of "pre-settled status" will automatically have their leave extended by two years at a time, without the need for them to apply to extend. Notably, the Home Office has also announced plans to significantly increase most immigration fees (for example, work visas for skilled workers will increase by 15%).
For assistance with immigration related queries, Make UK subscribers should contact their regular adviser. If you are not a Make UK subscriber and you need assistance with an immigration related query, please contact us.
3. We’re proposing to make some redundancies due to a downturn in business. Do we have to allow employees to be accompanied at their one-to-one redundancy consultation meetings?
There is no strict legal right for an employee to be accompanied to a redundancy consultation meeting, but it is good practice to allow this. There will also be circumstances in which allowing an employee to be accompanied will help to establish the fairness of the dismissal.
Our template letters (available to Make UK subscribers here) inviting an employee to a consultation meeting therefore include optional wording that you can use if you decide to allow the employee to bring a companion to the meeting.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about redundancies, including template policies and drafting guidance, in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
4. When will the right to neonatal care leave and pay come into force?
The Neonatal Care (Leave and Pay) Bill received Royal Assent on 23 May 2023, becoming the Neonatal Care (Leave and Pay) Act 2023. Further secondary legislation (Regulations) will be needed to bring these provisions fully into force.
Once in force, eligible employed parents whose baby is admitted to neonatal care for a continuous period of at least seven days within 28 days of birth will be entitled to take up to 12 weeks of leave, in addition to other leave entitlements such as maternity and paternity leave. While the right to neonatal care leave will apply from day one of employment, the right to pay will be subject to a 26 weeks’ continuous service requirement. See here for further details, including information about two other family-related employment bills that received Royal Assent in May 2023.
The timeframe for the introduction of the Regulations is not yet clear, but they are not expected to come into effect until April 2025 (in order to coincide with the start of a new tax year and give employers, payroll providers and HMRC time to prepare). Make UK’s policy team has been engaging with Government on these issues and will continue to do so as the Regulations are developed. Once these provisions come into force, employers will need to update their policies and ensure that HR and line managers understand the new law. We will keep our subscribers informed once the Regulations and any accompanying guidance become available.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on the law and best practice for supporting staff members who have family and caring related responsibilities. You can also access further information on relevant topics such as family rights, flexible working, discrimination and harassment, including template policies and drafting guidance, in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].
5. Where should we hold a disciplinary hearing?
Most disciplinary hearings are likely to take place in person, at your premises. In some circumstances, however, it may be appropriate or necessary to hold a disciplinary hearing remotely (for example, if the participants are home or hybrid workers).
In order to maintain flexibility to choose the most appropriate location for a disciplinary hearing in each case, we recommend specifying in your disciplinary policy that a hearing may be either remote or in person, at your discretion, and that home or hybrid workers may be required to attend your premises for hearings that are in person. Our template Policy - disciplinary (which is available to Make UK subscribers here) takes this approach.
When considering whether to hold a disciplinary hearing remotely or in person, bear in mind that if the employee concerned is not used to remote meetings because they do not work from home (for example, a production operative), an in-person hearing may be more appropriate.
When scheduling remote hearings, you will need to ensure that all parties (including the employee’s companion) have access to the necessary technology to enable them to fully participate in the hearing, as well as any relevant materials. You will also need to take into account whether any participant has a disability or other accessibility issue that could affect their ability to use video conferencing technology and whether any reasonable adjustments might be required as a result.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about disciplinary matters, including template policies and drafting guidance, in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
August HR and Employment Law FAQs
01.08.2023
1. What is “discrimination by perception”?
Discrimination by perception claims arise under section 13 of the Equality Act 2010, where one person is treated less favourably because another person else (the discriminator) perceives the individual to have a particular protected characteristic. This would be the case, for example, if an employer rejected a job application from a white woman whom he wrongly thought was black, because she has an African-sounding name (paragraph 3.21, Equality and Human Rights Commission (EHRC) Employment Code). The employer’s perception in this example that the job applicant was from a particular ethnic group, and the less favourable treatment of that applicant as a result, would amount to direct discrimination by perception.
Similarly, age discrimination by perception would arise where an employer treated an employee less favourably because they perceived that the employee was of a certain age. This could arise, for example, if an employer chose not to promote someone because they thought the employee was "too young" to hold a senior role even though, in reality, the employee was older than other workers in similar posts.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about discrimination, harassment and bullying, including template policies and drafting guidance, in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
2. What is the difference between the National Minimum Wage, the National Living Wage, the Real Living Wage and the London Living Wage?
The National Minimum Wage is the minimum hourly rate of pay which employers must legally pay to workers of at least school leaving age. It is set at different rates depending on the worker’s age. The National Living Wage is the minimum hourly rate of pay which must be paid to workers aged 23 and over. These rates change on 1 April every year and are enforced by HMRC. If an employer fails to pay the NMW or the NLW, HMRC may take various enforcement measures, including serving notices of underpayment, civil penalties, "naming and shaming", recovery of underpayments through tribunals or civil courts, or even criminal prosecution. In addition, a worker who does not receive the NMW / NLW is entitled to bring claims for unlawful deduction from wages or breach of contract.
The Real Living Wage and London Living Wage are voluntary minimum wages based on the cost of living (the latter, focused on meeting the higher costs of staff living in London). The Living Wage Foundation will announce new dates for the 2023-24 Living Wage rates soon.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about minimum wage entitlements and/or also access details of the current NMW and NLW rates on the Current rates and limits page in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
3. One of my employees is an armed forces reservist and has been called up for military service. Do I have to allow them to go?
Reservists may be mobilised for service in the event of national emergency or war, and for peacekeeping and humanitarian operations. If a reservist is mobilised, the Ministry of Defence (MoD) sends written notification to their employer (usually at least 28 days’ notice for contingency operations and at least 90 days’ notice for pre-planned operations).
If the absence of a reservist would cause serious harm to your business and staffing cover is not available, you have can apply for the employee to be exempt from the mobilisation, or for the mobilisation to be deferred. If you want to do this, you must apply within seven days of the date you are notified of the employee’s mobilisation. You can also apply for compensation for the additional costs you incur as a result of an employee being called up, for example the cost of hiring a temporary replacement and of training the reservist on their return.
At the end of their period of mobilisation, reservists may write to their employer to ask to be reinstated to their employment. An employer in these circumstances must offer the reservist their old job back, or an alternative job on the most favourable terms and conditions that are reasonable and practicable. (It is, however, possible for an employer to refuse reinstatement if allowing it would result in the dismissal of another employee who was employed before the reservist was mobilised, was as permanent as the reservist and who had longer service at the time of the reservist’s mobilisation.) Once reinstated, the employee must be allowed to remain in post for a minimum protected period. The length of that period depends on the employee’s pre-mobilisation length of service.
It is a criminal offence to dismiss someone for being liable to be mobilised. A court can order the employer to pay compensation to the employee as well as imposing a fine. The employee may also have a claim for unfair dismissal.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about employing armed forces reservists and/or access more information in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
4. Do employees have a right to have their mobile phone with them during the working day so they can receive personal calls and messages?
Employees don’t have a specific legal right to use their mobile phone during working hours. However, it is quite common for employers to allow some use of personal mobile phones during the work day provided this does not interfere with the employee's work. What is appropriate will depend on the circumstances. For example, manufacturers often prohibit employees from using their mobile phones on the shop floor for health and safety reasons, but may allow them to use their phones in common areas during their break times. Where no such considerations apply, an employer may choose to take a more relaxed approach and allow reasonable use, or perhaps allow usage in emergencies.
If you are considering tightening up your approach to employees’ use of their personal mobile phones during working hours, where you have previously allowed this, you should be aware that an employee might try to argue that being permitted to use their phone has been implied into their employment contract by custom and practice. If this is the case, then seeking to change the position will involve a change to employees’ terms and conditions, which may require you to take steps to consult with employees and seek their agreement to the change.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance about changing employment terms and/or access further information about this in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
5. We’ve offered a maternity cover role to an applicant, but have now found out she is pregnant so she won’t be able to cover the whole period. Can we withdraw the offer?
No, you cannot withdraw a job offer because you have discovered that a candidate is pregnant – even if the role you were offering is a fixed-term maternity cover role and the candidate’s pregnancy means she would not be able to cover the whole period. (Note that a candidate is under no obligation to disclose a pregnancy during the recruitment process, and if you become aware that a candidate is pregnant, this should not be taken into account when deciding whether to offer them the job.)
Section 18 of the Equality Act 2010 makes it unlawful for an employer to discriminate by treating a woman unfavourably because of her pregnancy during the ‘protected period’. (This is the period from the beginning of pregnancy to the end of maternity leave.) This protection covers job applicants as well as existing employees.
In addition, if the candidate has already accepted the offer and any conditions (such as demonstrating the right to work in the UK) have already been satisfied, then there is a contract of employment in existence, even if you have not yet provided the written contract and the candidate has not yet started work. In these circumstances, as well as the candidate having a claim for discrimination:
- You would be liable to pay notice pay in accordance with the contract terms (if the fixed-term contract doesn’t provide a right for you to terminate early on notice, then this could be pay for the full 12 month period).
- The candidate could also have a claim for automatic unfair dismissal if the reason for the dismissal was her pregnancy.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access further information about withdrawing job offers in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.