Frequently Asked Questions

You need to carry out an investigation. Has any other employee noticed this? Have you noticed any change to his work performance or in his demeanour? If so, this could support the allegation. He should be interviewed, informed of the allegation and asked for an explanation. If he has an alcohol problem, counselling and support could be the way forward. However, he should be informed of the seriousness of the allegation.

Your absence reporting procedure requires employees who are unable to attend work due to sickness or injury to contact their manager personally by phone, before a stated time, to explain the reason for their absence.

A text message to a colleague is totally unacceptable. The employee should be interviewed and asked to provide an explanation for failing to phone his manager. In the absence of a satisfactory explanation disciplinary action could follow.

Ordinarily, if an employee has less than 12 months service he/she does not have any employment rights as far as dismissal is concerned. However, always be wary of any possible allegation of age, sex, race or disability discrimination.

If you are contemplating dismissing an employee for gross misconduct and therefore without pay in lieu of notice, it would be prudent to go through a proper disciplinary procedure. Investigate the issues thoroughly and convene an investigatory meeting. If there is a clear case to answer, convene a separate disciplinary hearing observing the right to be accompanied and give adequate notice along with details of the issues to be addressed.

This type of request is dealt with under the right to apply to work flexibly and is part of legislation introduced by the Employment Act 2002, known as the flexible working provisions.

This right means that employees who are parents of a child under 16 (or aged under 18 if disabled) or a carer of an adult living at the same address, may make a request to work flexibly. Employers who receive such a request are required to follow a specific procedure to ensure that the request is properly considered.

It should be noted that the regulations do not provide an automatic right to work flexibly, as it may not always be possible for an employer to accommodate the employee's request. However an application can only be refused where there is a clear business reason. The business reasons for refusing an application must be from one of the following:-

Burden of additional costs

Detrimental effect on ability to meet customer demands

Inability to reorganise work among existing staff

Inability to recruit additional staff

Detrimental impact on quality

Detrimental impact on performance

Insufficiency of work during the periods the employee proposes to work

Planned strucutral changes

YES!  All employees are entitled to 5.6 weeks holiday per year, regardless of how many hours or days a week they work.  The 5.6 weeks holiday is calculated on their working week and therefore the employee who works only 1 day per week, would be entitled to 5.6 days holiday per year.

An employee who works two days a week would be entitled to 11.2 days per year.  Obviously from an ease of calculation point of view, you may wish to just round this up to 11.5 days.

There is no statutory entitlement to "smoking" breaks.  Provided that employers comply with the break times governed by the Working Time Regulations, i.e. 20 minutes in any 6 hours of work, then there is no need to give any additional breaks.

Therefore if an employer wishes to allow employees to smoke, it is at their discretion as to when and how often an employee can go outside to smoke.  It is always recommended to ensure employees know what the rules are, and that any breach could lead to disciplinary action.

Smoking was banned in all indoor public places from 26th March 2006 in Scotland, 1st July 2007 in England and 2nd April 2007 in Northern Ireland and Wales. The legislation covers nearly all indoor work and public places with a few exceptions being granted on humanitarian grounds, i.e. prisons, care homes etc, but even on these premises smoking will be permitted only in designated rooms.

Employers should also note that "indoor places" also include company vehicles, the exception being only if the vehicle is allocated to one employee and only ever driven by them without passengers.

Generally when an employee has over 12 months service, you need to be seen to act reasonably and fairly in dealing with this type of situation.  It is advisable to allow an overnight "cooling off" period before dealing with the matter.

It is not advisable to simply take his actions as him resigning.  If the employee fails to make further contact, then you should write to him and ask him his intentions and even offer to meet him to discuss the situation.  Ensure that you give him a deadline by which to reply and state in the letter that if you don't hear from him that you may have to assume he has resigned.

If the employee gets back in touch of his own accord, to "ask for his job back", then invite him in to attend an investigation meeting and determine the facts as to what prompted him to walk out.  It may be that a clearing of the air discussion is sufficient to allow matters to be resolved amicably, however, you could take disciplinary action, if it is appropriate, to deal with him leaving the premises without permission.

This is a common issue in the present climate.  The first thing to look at in these circumstances is whether or not this is a short term problem.

If it is then you could look to "lay off" your employees, provided that you have the contractual right to do so.  The right to lay off should be detailed in either the contract of employment or an employee handbook.  In the absence of this, you do not have the right to impose lay off.

Provided you do have the right, then you can choose whom to place on lay off, it does not have to be as formal as a redundancy selection.  Ideally, give the employee some notice of this, but it is accepted that this is not always possible to do.  Employees on lay off are entitled to guarantee pay (currently £21.50 per day) for the first 5 days in any period of lay off. 

You should give the employee a letter to confirm this, in order that they can take this to the Job Centre to see if they are eligible to claim any other benefits.

If the period of lay off goes on for a period of 4 weeks or more, the employee can give their written notice and claim a redundancy payment from you.  You can refuse to meet the claim and serve counter notice that within 7 days you can reasonably expect to provide at least 13 weeks continuous employment without further resort to lay off.

If you do not have the contractual right to lay off, you can try to seek the employees' agreement to do this.  If the employees do not agree to this, or if this is a long term problem, then unfortunately it is highly likely that voluntary or compulsory redundancy will be the way forward.

This depends how far down the procedure you had got.  If you are still only in the initial consultation stages, and you have not as yet served formal notice then yes, you can withdraw the threat of redundancy.

If however you have gone through the consultation and selection process and formally served notice to your employees, then you cannot unilaterally withdraw the notice of redundancy dismissal.

You should offer the opportunity to continue employment and the employee would have to accept the offer or agree to delay the dismissal date if that is applicable.

An employee is not obliged to accept the offer, but an unreasonable refusal may result in the employee losing the right to a redundancy payment, but they would still be entitled to their notice pay.

Under the Employment Rights Act an employee is protected from detrimental treatment if they have asserted a health and safety right.  Whilst you may feel that there were no grounds for him to complain, if he thought it was unsafe then he is entitled to remove himself from the situation. 

If you were to discipline or dismiss him then he would be able to complain to an employment tribunal that he has been subjected to detrimental treatment for raising a health & safety concern.

It is therefore advisable to investigate his concerns and advise him of the outcome of these investigations.  If there is nothing untoward found as part of your investigations and he continues to refuse to do the job, then you may be in a stronger position to take formal action against him, however ensure that you have carried out a thorough investigation before embarking on this route.

The Health and Safety (First-Aid) Regulations 1981 do not oblige employers to provide first aid for members of the public. However, the HSE recommends that employers do include the public and others on their premises when making their assessment of first aid needs. Any policy provision of such a service should be in agreement with your first aiders. It is also advisable to ensure that any foreseeable liabilities are considered within your insurance cover. Check this with your Insurance Broker.

The Regulatory Reform (Fire Safety Order) 2005 is the change being referred to and has repealed previously significant pieces of legislation including the Fire Precautions Act 1971 which required Fire Certificates in certain classes of premises.

The Order now requires all businesses to put in place general fire precautions that are reasonable and practicable having regard to the circumstances of the business. This is achieved by undertaking a fire risk assessment.