We have a teacher who is great when he is here but he is off sick most of the time. How can we deal fairly with this and improve his attendance or replace him?

You need to follow the sickness management policy in place at your school/academy. First thing is to meet him and show that he matters and that you are concerned about his well-being. Then put a plan in place and keep up the regular contact, referring to occupational health with specific questions.

 

As an academy do we have to consult unions? We never did this before as a Local Authority school.

Most probably yes, if staff were transferred to the academy following a fair TUPE process you are very likely to have inherited the union recognition agreement from the Local Authority. As a school with the LA as employer, the LA consulted unions through collective bargaining at a local and national level on your behalf as the employer of the staff. The legal duty to consult staff and unions has transferred to the Trustees of the new academy.

 

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 grounds 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.

 

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 being taken, up to and including dismissal . 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.

 

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

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.

 

What can we do when an employee takes frequent short absences and we suspect the employ is not actually sick?

 

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, i.e. 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 formal action if their attendance record does not improve.

 

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 be given the opportunity of seeing the report before it is sent to the Company.

 

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.

 

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.

 

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

 

In simple terms 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.

 

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.

 

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.

 

Are employers obliged to consult with employees about a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006?

 

Employers contemplating a transfer must inform appropriate employee representatives long enough before the proposed transfer to enable meaningful consultation to take place. Consultation must take place whenever an employer is envisaging measures in relation to affected employees. Failure to consult could lead to a complaint to an employment tribunal and the imposition of an award equivalent to up to 13 weeks' pay to each employee.

 

What is the right to time off for dependents?

 

The right to time off for dependents is the right for employees to take a reasonable amount of unpaid time off during working hours to take action in certain circumstances. These are where a dependent is involved in an incident at school, or dies; where a dependent's care arrangements are unexpectedly interrupted or terminated; to provide assistance where a dependent falls ill, gives birth or is assaulted; or to make arrangements for the care of a sick or injured dependent.

 

Can an employer choose to employ a full-time person rather than two part-time people?

 

An employer may have sound business reasons for wanting to fill a job vacancy with a full-time worker (rather than one or two part-time workers), but may well be called upon to justify those reasons before an employment tribunal.

 

What is the minimum statutory provision for paid holiday?

 

In each holiday year, under reg.13 of the Working Time Regulations 1998 (SI 1998/1833), workers have the legal right to a minimum of four weeks' paid holiday. Regulation 13A, brought into force by the Working Time (Amendment) Regulations 2007 (SI 2007/2079), introduced entitlement to a further period of 1.6 weeks' annual leave, implemented in two phases of 0.8 week's leave on 1 October 2007 and the remaining 0.8 week's leave on 1 April 2009. Workers are therefore entitled to a minimum of 5.6 weeks' paid annual holiday.

 

How is a fixed-term employee defined?

 

For the purposes of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034), a fixed-term employee is one employed under a contract of employment that will terminate on the expiry of a specific term; the completion of a particular task; or the occurrence or non-occurrence of a specific event other than the attainment by the employee of any normal and bona fide retirement age for the position.

 

Can an employer deal with a grievance informally?

 

Yes. An employer can deal with a grievance informally if it is appropriate in the circumstances. Most complaints raised by employees should be dealt with by the employee’s line manager, without recourse to the formal grievance procedure. If an employee raises a formal grievance, it could be appropriate for the employer to deal with it informally, for example where is it clear that the employee has a legitimate complaint that can be easily resolved to his or her satisfaction.If the nature of the grievance is serious, or if an informal approach to resolving it is not successful, the employer should deal with the grievance under its formal grievance procedure.

 

 

 

Where an employee is dismissed but reinstated on appeal, should he or she be paid for the time between the dismissal and the successful appeal?

Yes. The effect of reinstatement is to treat the employee as if he or she had never been dismissed. The employer should therefore pay the employee any monies due for the period between dismissal and appeal, taking into account any sums paid by way of notice monies, and also reinstate pension and other benefit schemes

 

Where an employer stipulates a probationary period for new employees must it wait until the end of this period before dismissing an unsatisfactory probationer?

An employer does not need to wait until the end of a probationary period before dismissing an unsatisfactory employee - the employee can be dismissed during the probationary period. It is common for employers to stipulate a probationary period for new employees, particularly those at junior or mid- level, and periods of three or six months' probation are the most common. However, a probationary period has virtually no effect on the employer-employee relationship. The purpose of the probationary period is simply to enable the employer to monitor and appraise the probationer in the initial stages of his or her employment to ensure that the required standards of performance and conduct are being reached. If the probationer turns out to be unsatisfactory during the probationary period, the employer can take the necessary steps to dismiss him or her without waiting for the probationary period to come to an end. The employer should ensure that it follows any applicable contractual disciplinary procedure prior to the dismissal. It must give the required period of contractual or statutory notice, whichever is the greater.

 

What constitutes an unauthorised absence?

An unauthorised absence is an absence during which an employee fails to attend work but where he or she does not have a statutory or contractual right, or the employer's permission, to be absent. Absences that are due to pre-booked annual leave, genuine and correctly reported sickness absence or family-related (e.g. maternity) leave, or that result from a statutory right to take time off (for example to look for work in a redundancy situation, or for antenatal care) do not constitute unauthorised absence. If an employee fails to attend work without a good reason, this will amount to unauthorised absence.

 

Why is it good practice to conduct return-to-work interviews every time an employee has had a day or two off work?

Return-to-work interviews have been shown to be one of the most effective interventions in facilitating reliable employee attendance. They demonstrate to employees that the employer notices their absences, thus discouraging casual absence, while at the same time giving line managers an opportunity to identify the possible underlying cause(s) of an employee's frequent non-attendance at an early stage. Where an employee knows that he or she will have to justify an absence to the line manager, this may discourage the employee from taking a day off work.

 

In what circumstances may an employer deduct wages from an employee?

A deduction from wages occurs when an employee's wages are less than the total amount properly due to him or her on that occasion. To make any deductions from a worker's wages, an employer must first ensure that the deduction is either required or permitted by statute or authorised by a relevant provision in the worker's contract, or that the worker has given his or her prior written consent that the deduction can be made.

 

If an employee is absent without authorisation can the employer make a deduction from his or her pay?

A worker must be ready and willing to perform his or her duties in order to be entitled to receive payment. However, the law is clear that there may be circumstances where the employee is ready and willing to perform his or her services but is unable to do so due to factors beyond his or her control. Sickness and injury are the most obvious examples. In these circumstances the employee should be paid normal pay, whether that is company sick pay or statutory sick pay. An employer should not automatically make a deduction from wages simply because the employee is absent without authority. The employer should investigate the reason for the employee's absence. Deductions from pay should be made only where it is absolutely clear that the employee has deliberately refused to work without any justification. In most cases the employee is likely to have a reason why he or she has not attended work and, in practical terms, where the reason appears unacceptable to the employer, the most common route would be for it to follow the disciplinary procedure. However, where it is clear that the employee has deliberately refused to work without good reason and where there is nothing in the contract to the contrary, the employer may make a deduction in respect of the period where no work was carried out. Employers should also ensure that they act consistently when dealing with employees who are absent without authority, so as to avoid the risk of discrimination claims.

 

Is it ever permissible for an employer to withhold bonus payments?

There are two types of bonus scheme, discretionary and contractual. Provided that the terms of a discretionary scheme are clearly set out, an employer will be entitled to exercise discretion to withhold payment of a bonus as long as it is not acting irrationally or perversely in so doing. By contrast, if a bonus agreed under a contractual basis is not paid, despite the criteria for payment being met, an employee can apply to an employment tribunal for unlawful deductions of wages. The criteria applied to either sort of bonus scheme should not be discriminatory, and it is particularly important to avoid criteria that might discriminate against women who have been absent on maternity leave.

 

Can an employee's car allowance be withdrawn while he or she is on long-term sick leave?

The answer to this question will depend on the terms of the employee's contract of employment and any policies or rules regarding the car allowance that are incorporated into the contract. When an employee is absent from work due to sickness, there is no statutory duty on the employer to continue paying the employee's wages or salary, although statutory sick pay must be paid. However, unless there is a clear statement in the contract that a car allowance normally payable to the employee will be discontinued after a defined period of sickness absence, it is likely that the employee would impliedly have the right to expect the allowance to continue. There may also be an implied duty to continue a car allowance as a result of custom and practice in the organisation, for example if in the past it has been the usual practice to allow it to continue.

 

end faq

 

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.