FAQs

As an employer, you are liable for the acts or omissions of your employees that occur in the course of their employment.  If one of your employees commits an act of discrimination or harassment against a colleague, you will be vicariously liable even if you knew nothing at all about the acts in question.

Under discrimination legislation, an employer has only one defence open to them (known as the statutory defence) where an employee has committed a discriminatory act.  The statutory defence will protect employers if they can show the tribunal that they took all reasonable steps to prevent the employee from carrying out discriminatory acts.

What amounts to ‘all reasonable steps’ will depend on the circumstances of each case but would normally involve the employer showing that it has taken steps to implement an equal opportunities policy and provided suitable supervision and/or training to staff.  It will rarely be sufficient for an employer merely to point to the existence of an equal opportunities statement or policy.  The employer will be expected to have taken active steps to implement that policy and provide training in relation to it.

The Working Time Regs provide that all workers are entitled to minimum holidays of 28 days (5.6 weeks) each holiday year. This entitlement continues to accrue while an individual remains in employment even if they are not actually present at work due to sickness.

Accordingly, where an employee is absent for part of a holiday year, he or she must be allowed to take accrued annual leave on return.  It is lawful however for employers to provide that any holiday entitlement in excess of the statutory minimum will not accrue during the period of absence.

It also remains lawful for employers to have a provision preventing employees carrying forward holidays from one holiday year to the next.  Where an employee fails to utilise his or her full holiday entitlement, despite having been given the opportunity to do so, the employee will forfeit that entitlement.

If however, by applying this rule, employees are unable to use their holiday entitlement through no fault of their own e.g. due to sickness absence straddling the holiday year, the employee must be permitted either to take annual leave while absent from work or alternatively allowed to carry forward any unused portion of their entitlement to the next holiday year.

In the current economic climate, redundancies are an issue that many employers are having to deal with, sometimes for the first time. 

One of the key areas that a tribunal will look at is the process that an employer follows to select staff for redundancy. While a tribunal will not necessarily examine the scoring itself in detail, it will expect to see that clear objective criteria have been put in place and on the face of it employees appear to have been scored fairly.

It was common in the past for employers to use last in first out (LIFO) to determine redundancies.  This had the advantage of being wholly objective.  However, since the introduction of the Age Discrimination Regulations in 2006, employers have been unable to use LIFO as their sole criterion as it amounts to unlawful age discrimination; unfairly advantaging older workers.  It is still possibly to use length of service as one of a range of criteria but it cannot be used on its own.

Under the Age Discrimination Regulations 2006, employers require to objectively justify any benefits granted based on length of service.  An exception to this is additional benefits granted during the first five years of employment. 

Thus, while an employer is able to grant an additional day’s annual leave for each year of service during the first 5 years of employment, if any additional holidays are granted thereafter e.g. after 10 years’ service, this will be viewed as potentially age discriminatory and the onus will lie on the employer to show that the granting of this additional holiday is objectively justified.

If the employee has already left, and his or her contract did not address this issue, then the employer may be too late.   Once the employment relationship has ended there is normally little to prevent an employee using his or her knowledge or contacts to poach business from the ex-employer. 

If an employer has employees who could damage their business if they left, it is important that steps are put in place at the outset of the employment relationship setting out restrictions on what the employee will be permitted to do when the employment relationship ends.  Such restrictions are known as ‘restrictive covenants’ and can cover restrictions on an ex-employee’s use of confidential information, which customers an ex-employee may contact and even where an ex-employee may be permitted to work. 

Courts and tribunals will scrutinise restrictive covenants carefully to assess their enforceability and employers should seek assistance in tailoring any restrictive covenants to meet their particular needs. 

The circumstances under which bonuses or commission are paid to an employee is almost entirely governed by the terms of the particular bonus or commission scheme.  A carefully drafted scheme will seek to cover all eventualities that might govern payment.  This might, for example, govern whether a bonus will be paid to an employee who has subsequently left the business (prior to payment), who is under notice or is the subject of disciplinary action.  The scheme should also cover the payment of bonus / commission to those employees who are off for all or part of the relevant year due to sickness or maternity leave.

A poorly drafted bonus or commission scheme may not make these matters clear.  Any ambiguities in the scheme will be construed in the employee’s favour and may leave the employer paying out sums of money to employees whom the employer did not envisage being so entitled.

Provided that the employee receives her statutory minimum holiday entitlement of 28 days in the relevant holiday year, in principle there is no requirement to grant additional days’ leave in respect of public holidays that fall during the maternity leave period. 

Employers should however check the terms of their holiday policy to ensure that there are no provisions that provide otherwise.  Employers should also take into account how public holidays are dealt with in respect of other staff who are absent from work.  If an employer grants staff who are absent from work during a public holiday for other reasons (e.g. sickness) an alternative day off, an employee on maternity leave should be treated in the same way.

The Equality Act 2010 prevents employers questioning job applicants about their health or disability prior to any job offer.   The prohibition is subject to certain exceptions described below.

Interviewees will not be able to make tribunal claims simply because they were asked health related questions, but if they don’t get the job, and claim disability discrimination, the fact that such questions were asked will raise a presumption of discrimination that the employer will then have to disprove. 

Employers will be permitted to ask pre-offer health questions in order to:

a. establish whether or the candidate is fit to undergo an assessment or making adjustments to allow the candidate to undergo an assessment e.g. establishing if adjustments need to be made for a dyslexic candidate to sit a written test.

b. establish if the candidate can carry out a function intrinsic to the work concerned e.g. for a warehouse job whether he/she is fit to lift, drive forklifts etc.

c. monitor diversity at work

There is nothing to prevent an employer making any job offer subject to a satisfactory medical report.  Similarly, a job offer can be subject to references which can inquire about candidates’ absence records.

Normally to claim unfair dismissal, an employee must have one year’s service.  Note however that there are a significant number of claims where the employee does not require any length of service in order to raise an action, e.g. dismissals that amount to unlawful discrimination (on the grounds of sex, race, religion, disability, sexual orientation or age), or dismissals connected with trade union activity, dismissals for raising health and safety concerns, whistleblowing, or asserting a statutory right.  This list is not exhaustive.

Employers would therefore be well advised to take care before dismissing any employee regardless of length of service and if in any doubt to seek legal advice beforehand.

Note also that care should be taken when dismissing employees who are shortly about to reach their first anniversary of employment.  In calculating service length, tribunals will add a statutory notice period of one week to the length of service.  Thus an employee who reaches 51 weeks’ employment prior to dismissal may be protected under unfair dismissal legislation.

Under the flexible working regulations, employees with 26 weeks’ service and who are caring for children under 18 or who have caring responsibilities for other relatives have the right to request to work flexibly.  Such arrangements may include part-time work, job share or working from home.

The employee’s right is to make a request and the employer is not obliged to agree to the request if this is not convenient to the business.  The regulations set out the grounds under which a flexible working request may be rejected.

Employers should however take care that they are not seen as imposing a blanket ban on flexible working practices either throughout the business or at senior levels within the business.  Such practices may constitute indirect sex discrimination and could result in legal action against the employer. 

Employees have a legal right to a reasonable amount of unpaid time off to take care of dependants.  What is reasonable will depend on the circumstances of each case but it should not normally amount to longer than a day or two at a time and should not be a regular event.  Where an employer believes that the time off is excessive or the employee is abusing the right, the employer is entitled to take appropriate action.

Care however should be taken in such circumstances.  Where the time off is being taken to care for a dependant who is ‘disabled’, an employee who believes that he or she is being discriminated against by his or her employer due to a dependant’s disability will be able to take action under the Equality Act 2010 against the employer.

This will depend on what the bonus is designed to represent.  If the bonus is linked to an employee’s performance or relates to work carried out during the bonus year, then, as a general rule, an employee on maternity is not entitled to receive a payment for that proportion of the year where she was absent on maternity leave. 

Where however the bonus is not linked to work carried out in the year in question e.g. an annual Christmas bonus, a woman on maternity will be expected to receive this payment.

Note that in all cases, when calculating a bonus payment to a woman on maternity leave, the employer must include the compulsory maternity leave period in the bonus arrangement.  The compulsory maternity leave period is the two week period after birth where a woman may not return to work (4 weeks in the case of factory work).

Employers have a legal obligation under the Maual Handling Operations Regulations 1992 (as amended) to make sufficient and suitable risk assessment to identify the possibility of risk to employees from the manual handling of loads.

There is no maximum weight but each situation has to be assessed based on factors such as the capability of the individual, the characteristics of the load, the physical effort required, the work environment and the type or frequency of the activity. This is a legal requirement and the regulations should be complied with.

Training should be given to staff to enable them to carry out their tasks effectively and without injury. Training may need to be repeated from time to time, this will depend on the tasks undertaken but will be at intervals not more than every three years. Courses provided should both give instruction and practical training.

If you employ five or more people you must, by law (Health and Safety at Work Act 1974 section 2(3), have a written health and safety policy.

Your health and safety policy statement sets out how you manage health and safety in your organisation. It is also your key to achieving acceptable standards, reducing accidents and work-related ill health and it shows your employees that you really care about health and safety It is unique to your business and shows who does what, when and how they do it.

The policy statement should be reviewed and possibly revised in the light of experience, or because of operational or organisational changes. It may be useful to review the policy regularly (e.g. annually).

Although not legally required to do so, businesses with less than five employees should also consider having such a policy as good practice. It could prove useful to have something in writing.

The law states that "an adequate supply of wholesome drinking water shall be provided for all persons at work in the workplace.

It should be readily accessible at suitable places and it should be conspicuously labelled by an appropriate sign where necessary for health and safety reasons", (e.g. taps should be suitably marked if the source is mains water, or if water supplies are not meant for drinking, i.e. water supplies meant for processes only).

Drinking cups or beakers should be provided unless the supply is by means of a drinking fountain or jet from which people can drink easily. Bottled water/water dispensing systems may still be provided as a secondary source of drinking water.

In the case of non-disposable cups a suitable facility for washing them should be provided nearby. This should be in addition to or separate from sanitary washing facilities. 

To ensure that risk to people's health and welfare in the workplace are properly controlled, certain accidents at work have to be reported in order that an investigation can be carried out, to ascertain what can be done to prevent reoccurence and to see if there has been a breach of health and safety at work regulations or any other legislation.

All accidents are reported to one central office - the Incident Contact Centre (ICC). The centre was established on 1st April 2001 as a single point of contact for reporting all work related accidents in the UK.

You can report accidents by contacting: 

Incident Contact Centre
Caerphilly Business Park
Caerphilly
CF83 3GG
Phone: 0845 300 9923
Fax: 0845 300 9924
Email: riddor@natbrit.com
Website: www.riddor.gov.uk

Electrical equipment should be visually checked regularly. Equipment should be more thoroughly tested by a competent person often enough that there is little chance that the equipment will become dangerous between tests.

Equipment that is used in a harsh environment should be tested more frequently than equipment that is less likely to become damaged or unsafe.

It is good practice to assess how often equipment being used for work purposes should be tested, write down your findings, make sure the testing is carried out, and write down the results of the tests.

There is no definite answer but it is strongly recommended. In any company, the number and type of first aid personnel would be based on an assessment. In assessing need, employers need to consider:

• workplace hazards and risks
• the size of the organisation
• the organisation's history of accidents
• the nature and distribution of the workforce
• the remoteness of the site from emergency medical services
• the needs of travelling, remote and lone workers
• employees working on shared or multi-occupied sites
• annual leave and other absences of first aiders and appointed persons

However it is strongly advised that a suitably stocked first aid box be kept on the premises within easy access at all times and should be easily identifiable.

If you have identified that your workplace needs first aiders, they must have completed a first aid at work course provided by an Health and Safety Executive (HSE) approved training organisation