frequently asked questions


Sometimes you just need a little helping hand in solving a particular issue, which is why we have answered some of the most asked questions below. However, if you can’t find what you are looking for, simply ask a question and we will be happy to advise you on a solution.

No, treating part-time workers less favourably than equivalent full-timers in relation to dismissal is unlawful under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, unless different treatment can be justified on objective grounds. A woman who is dismissed because she wishes to return from maternity leave on a part-time basis is likely to bring a claim of indirect sex discrimination under the Equality Act 2010.

As a general rule, employees who have been employed for less than a year do not have the right to claim unfair dismissal. However, where it is a term of the employee’s contract of employment that the employer must follow a disciplinary or other procedure prior to dismissal, the employee will have a claim for breach of contract if the employer does not follow the required procedure. The employee may be able to claim damages for lost wages.

Employees do not need one year’s service to claim discrimination, or unfair dismissal if the dismissal is for a specified unlawful reason (for example, a dismissal related to pregnancy, health and safety or payment of the national minimum wage).

Although official complaints of discrimination can be made only to the employment tribunal, a copy of the tribunal application is also sent to the arbitration service ACAS, which will try to conciliate on the matter. If a settlement is reached it will be recorded in writing by the use of the ACAS COT3 form. As an alternative to using ACAS, a binding settlement can be reached by setting up a valid compromise agreement, or by a tribunal order dismissing the case on terms agreed by the parties.

Under reg.15 of the Working Time Regulations 1998 (SI 1998/1833) an employer may nominate dates on which an employee must take some or all of his or her statutory annual holiday entitlement, provided that advance notice is given. The notice required is a minimum of twice as many days as the number of days’ holiday that the employer wishes the employee to take. For example, the employer would have to give at least two weeks’ notice in advance of the start date of a period of one week’s holiday leave. These provisions may, however, be varied or excluded by a relevant agreement set up between the employer and appropriate workers’ representatives. Where no such agreement exists, these provisions will apply.

Whether or not it is possible for an employee to use up all his or her outstanding annual holiday entitlement during garden leave will depend on the length of the garden leave that the employer has instructed the employee to take in relation to the length of outstanding holiday entitlement. If the former is not long enough to allow for the notice period for the holiday plus the period of holiday leave, then it will not be possible for the employer to ask the employee to use up all his or her holiday in this way. The employee would then be entitled to be paid for any holiday leave for the current holiday year that had not been taken before the date of termination of his or her employment.

The above relates to the 5.6 weeks’ statutory minimum annual holiday that employers must grant all workers under the Working Time Regulations 1998. If an employer grants employees more than the 5.6 weeks’ holiday entitlement, the position with regard to any additional holiday will depend on the terms of the employee’s contract or any contractual policy on the timing of holiday that the employer has in force.

Whether or not an employer is entitled to ask an employee on garden leave to return his or her company car and mobile phone depends on the purpose of the items and the terms of the contract. The starting point is that employees are entitled to full pay and benefits during periods of garden leave. However, an employer may be entitled to ask for the return of items such as a company car and mobile phone where they are purely tools of the job and provided for business use only.

Where the company car and mobile phone are contractual benefits for personal use too, the employer should not seek their return until the end of the garden leave period, unless there is a specific term in the contract of employment requiring the employee to return them during a period of garden leave.

Yes all workers are entitled to a minimum holiday entitlement of 5.6 weeks.

For casual or irregular working patterns such as in zero hours contracts, it may well be easiest to calculate the holiday entitlement that accrues as hours are worked. The holiday entitlement of 5.6 weeks is equivalent to 12.07% of the hours worked. The 12.07%  figure is calculated as follows:

5.6 weeks holiday, divided by 46.4 weeks (52 weeks – 5.6 weeks) multiplied by 100 = 12.07%

(The 5.6 weeks have to be excluded from the calculation as you would not be present during the 5.6 weeks in order to accrue annual leave.)

For example, if your employee had worked 10 hours, they would be entitled to 72.6 minutes’ paid holiday:

(12.07%  x 10 hours = 1.21 hours = 72.6 minutes

Under UK law, it is unfair dismissal and sex discrimination to select a woman for redundancy because she is pregnant or on maternity leave. You therefore must be able to demonstrate that any actions you take to make your pregnant employee redundant fits one of these situations:

  • the business closes down either temporarily or permanently
  • the business moves and the employee cannot get to the new place of work
  • fewer employees are required for existing work

If you are certain you can establish one of these situations (from your description it sounds like the last one would be most appropriate) then you can use proper procedure to make the pregnant employee redundant.

However be aware that you need to demonstrate fair selection for redundancy, therefore if another job has been altered to subsume the duties of the post, you should consider whether the pregnant employ could reasonably undertake this new role. If it could be deemed a reasonable alternative, and if she is on maternity leave then it should be offered to her before anyone else.

In summary then if you can clearly demonstrate a redundancy situation, the individual has been fairly selected for redundancy and there is no suitable alternative which she can undertake then you can reasonably make her redundant following the appropriate procedures.

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