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Top 10 FAQ

1. Can I not just follow my instincts, when it comes to selecting amongst job applicants?

No. Your instincts might be discriminatory, whether you know it or not, in which case you might well fall foul of the anti-discrimination legislation which outlaws discrimination on the grouds of sex, marital status, race, nationality disability, sexual orientation, gender reassignment religion or belief, membership or non membership of a trade union and age. This legislation protects individuals against discrimination in employment, which includes the process of selecting applicants for jobs.

Ensure that your selection criteria are objective, and that any requirements are justified, given the nature of the job. Do not make stereotypical assumptions (for example, that a woman could not work with heavy machinery), as they may be discriminatory. Also ensure that your selection process is not discriminatory (for example the location and timing of your interviews, and your interviewing and assessment techniques). Keep full records of your criteria and processes, and their application to all candidates, detailing the reasons for the decisions made.

2. I want to take on a migrant worker from one of the EU accession states. What do I need to do to make sure they are legally employed?

An employee who comes from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia or Slovenia must register with the Home Office if they start working in the UK; this must be within one month of starting employment. A copy of the registration certificate will be sent by the Home Office and the Organisation must retain a copy of the certificate.

Where an employee has not completed 12 months uninterrupted employment within the UK he/she must re-register each time he/she changes employer.

3. Do I have a right to search employees who I suspect of theft at work?

Permission must be sought from the employee and if they refuse the employer must tell the employee what this could mean, e.g. the police may be called. If there is a clause in the employee’s contract indicating the employee’s consent to reasonable searches then they must be advised that a refusal without reasonable cause can constitute a breach of contract of employment and as such may result in disciplinary action, up to and including dismissal, being taken

Employers need to demonstrate that any search carried out is done for specific, objective business reasons. Care should be taken to ensure that such searches are not carried out for any discriminatory reasons.

Searching should not be undertaken lightly or without sufficient evidence that it is necessary. They should never be carried out in public, without a witness present, nor in an improper manner. Assault is both a criminal and a civil offence and searching employees could amount to assault if not carried our properly and with the employee’s consent. You should also be mindful of the sexual harassment legislation when conducting personal searches.

4. What do we do if an employee continually finds excuses to avoid disciplinary hearings?

The answer is that you need to be reasonable. If the excuses are genuine - for example, certified sickness - be patient. If there is no good excuse, hold the disciplinary hearing in the employee's absence - but warn them that you are going to do so in advance. Employees who take matters to an Employment Tribunal following disciplinary action, risk finding their awards (if any) substantially reduced (by between 10 and 50%) if they have not followed through the full appeals procedure beforehand.

5. What can we do when an employee takes frequent short absences and we suspect malingering?

Monitor sickness absences, and if a pattern of frequent short absences emerges, interview the employee, show the attendance record, and ask for an explanation - it is possible that there is an underlying problem, such as a personality clash, a domestic or family difficulty, or an underlying medical health problem which relates to a disability within the terms of the Disability Discrimination Act, ie a physical or mental impairment which has a substantial and long-term effect on their ability to carry out day-to-day activities.

You may be able to do something about the problem that could improve attendance e.g. if it is connected with a disability make “reasonable” adjustments to working arrangements. Require the employee to complete a self-certification form on each occasion, and make it plain that records are being kept and that the current level of absence is unacceptable. Tell the employee that their absences will continue to be monitored, and that you may take disciplinary action if their attendance record does not improve.

6. Can an employer contact an employee's GP direct to request a medical report?

No. Under the Access to Medical Records Act the employee's consent must be obtained in writing prior to the letter being sent to the doctor. The doctor may not be approached if this consent is withheld. The employee must given the opportunity of seeing the report before it is sent to the Company.

7. Does an employer have to give a reference for a former employee?

There is no obligation on an employer to provide a reference except in certain regulated sectors such as financial services. However, a refusal to give a reference may be construed as victimisation if the former employee has previously alleged discrimination.

If a reference is given, care must be taken in its preparation because the referee owes a duty of care both to the recipient of the reference and to its subject. In particular, if a referee gives an inaccurate reference, they may be liable for economic loss suffered as a result of any negligent statement. The overriding duty is to give a reference which is "reasonable and fair".

The effect of these recent changes is that a great number of employers now merely give a reference confirming employment details without any assessment of performance or individual character.

8. I have heard the term the “3 step procedure”, but what does it mean?

Put simply it is the statutory 3-step process that must be followed when dealing with most disciplinary actions, grievances or dismissal (including redundancy). These procedures were introduced by the government in October 2004 and failure to follow them can have financial implications.

The three steps are:

1. Put it in writing - You must put the reasons why you are considering disciplinary action or dismissal in writing, in broad terms to the employee. Similarly, the employee must put the reasons for a grievance in writing to you.

2. Hold a meeting – You must convene a meeting with the employee and, if they wish, a companion who can be a trade union representative or a colleague. Both parties must be given enough time to prepare prior to the meeting and both you and the employee should take all reasonable steps to attend. After the meeting you must advise the employee of the outcome.

3. Appeals - The employee must be advised of their right to request a meeting to appeal your decision. This may happen after sanctions have already been imposed. You must inform the employee of the outcome of the appeal.

9. What is the difference between Wrongful Dismissal and Unfair Dismissal?

Wrongful dismissal is the name given to a breach of contract by an employer which is connected with the actual dismissal of an employee. Cases of wrongful dismissal typically occur when an employer dismisses an employee without giving the notice required by the employee's contract and without adequate compensation in lieu.

The law on unfair dismissal gives employees a legal right to be treated in the way in which a fair and reasonable employer would treat them. To dismiss an employee fairly, you must both:

  • Have a valid reason for dismissing the employee e.g. misconduct, redundancy, inability to satisfactorily do the job or not having the qualifications for the job, AND
  • Act reasonably in treating that reason as a sufficient reason for dismissing the employee e.g. follow correct procedures, complete correct documentation.

Some reasons for dismissal will automatically make the termination of employment unfair, no matter how the employer acted e.g. where the reason is related to maternity, trade union membership, discrimination or being a part-time employee.

10. I’ve heard the term “constructive dismissal” but what does it mean?

This is where an employee resigns because of some action by the employer which causes the employee to believe that continuation of employment is impossible.

In order for an employee to bring a claim to an Employment Tribunal for constructive dismissal they must show that their employer's conduct is so serious that it amounted to a fundamental breach of mutual trust and confidence between employer and employee which goes to the heart of the employment contract. Examples include a changing an employee’s terms and conditions without consultation, racial or sexual harassment, compulsory relocation where the contract does not include a mobility clause or making it impossible to work effectively.

FAQs are for general guidance only and should not be considered a comprehensive statement of Law; they do not remove the need for seeking specific professional advice on specific issues particularly when a claim may ensue.

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