Frequently asked questions

Yes, the employer must provide a “written statement of particulars” within two months of the employment starting.

All contracts must include the following information:

• names of the employer and employee
• date when employment began
• date the employee’s continuous employment began
• rate of pay the method of calculating the remuneration
• intervals the remuneration is paid, i.e. weekly, monthly.
• terms and conditions relating to hours of work, including any terms and conditions relating to normal working hours
• terms and conditions relating to entitlement to holidays, including public holidays and holiday pay, so that they can be precisely calculated
• job title or a brief description of the type of work the employee is employed to do
• place of work or an indication that an employee is required to work at various locations.
• terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay
• terms and conditions relating to pension
• length of notice the employee is required to give and receive to terminate the contract
• where the employment is not intended to be permanent, the length it is intended to last, or the end date if it is for a fixed term
• any collective agreements, which directly affect the terms and conditions of employment, including where the employer is not a party, the persons by whom they were made
• where the employee is required to work outside the UK for a period of one month or more, details of the time they are to work abroad, the currency they will be paid in, any additional remuneration payable and any benefits provided because they work outside the UK and any terms relating to the employee’s return to the UK.

The written statement may also contain other clauses that an employer wishes to rely on.

It depends on the terms you’re changing. Some changes will be accepted without question and cause no problems. For example, if you’re awarding a pay rise or changing a job title when someone is promoted, simply tell the person about the changes face-to-face in a confidential setting and confirm it in writing with a short letter which includes the effective date of the change.

If you’re making any other significant changes to contractual terms, it’s essential that you are able to show that you’ve acted reasonably as an employer, both to head off legal problems and also to keep your employees satisfied. The Human Resource provides tactical and strategic support to employers handling these situations, such as:

• Follow a proper consultative process.
• Ensure you can justify the change and the selection of the individuals whose terms are to change
• Give people time to adjust to the change and help them to make the adjustment.
• Ensure you have a good reason for exercising your power to change a contractual term, considering any problems or difficulties it may cause the employee.

A zero hours contract means that the employer does not guarantee a set number of hours of work for the employee. Depending on the needs of the business, the employee could be asked to work almost full-time hours some weeks, or no hours at all other weeks.

Zero hours contracts can’t contain exclusivity clauses prohibiting staff from seeking or accepting work from another employer and people working on them are permitted to seek additional employment and have other jobs.

• 11 hours’ consecutive rest must be taken each working day. If you work until late, for example to 10.30pm, you can’t start work again until 9.30am the next day.
• You’re entitled to a minimum rest break of 20 minutes away from your workplace after working over 6 consecutive hours. This means for example that if you started work at 9.30 am and worked continuously, at 3.30pm you should take a complete break of at least 20 minutes, such as a lunch or coffee break.
• The number of hours you work per week must not exceed 48 hours, averaged over a rolling 17-week period.
• Night workers are limited to an average of 8 hours work in 24 hours.

The only part of the Regulations that has an opt-out clause is the 48-hour limit. Employers are allowed to ask their staff to agree to work more than 48 hours a week in a 4-month period. However, employers cannot force employees to sign an opt-out; it must be agreed, and employees must not be dismissed for refusing to sign one.

Employees are entitled to 28 days' paid holiday (reduced pro rata for part-time employees). This may include the eight public holidays.

Yes. When leave is taken is mainly a contractual matter between the employer and employee.

Employees do have a right to take emergency leave to deal with unexpected emergency situations involving someone who depends on them, for example when they need to:

• help a dependent who falls ill, gives birth or is injured,
• make arrangements for their care if they are ill or injured.
• deal with an unexpected incident involving their child at school or with their child’s carer.
• make arrangements for their longer term care.

However, the statutory right is to unpaid leave. As an alternative, you may agree to take the time from the employee’s paid holiday entitlement.

All employees with a year’s service have a right to parental leave. For each child they have who is under the age of 5, they may take up to 18 weeks’ unpaid leave to care for the child. All parental leave is unpaid and must normally be taken in blocks of one week and requested from the line manager. Entitlement to parental leave is more favourable and flexible for parents of a disabled child.

There is no statutory requirement to do this, but it would be a hard-hearted employer who didn’t. Many employers set guidelines on the amount of time they will pay in these situations of compassionate leave, in order to be as understanding and supportive as possible, and

also consider each case individually.

Yes definitely, and you should keep records to prove this. There are tough penalties, including a maximum prison sentence of 5 years, for employers who are prosecuted. Employers could be prosecuted if they knowingly employ someone illegally, and also if they have reasonable cause to believe they are doing so. The Home Office is auditing companies every day and officials have powers to enter and search premises to investigate possible immigration offences, and they use them.

Employers with solid policies and processes in place for checking right-to-work documentation are in a stronger position to defend their case if they’re found to be employing someone illegally. To protect your business from liability and criminal prosecution:

• always obtain an original right to work document from the Home Office’s prescribed list before employment starts;
• check the authenticity and validity of the document in the presence of the employee in question; and
• keep a clear electronic and/or paper copy of the checked document with a note of the date of the check and initials of the individual who verified the document.

Employers are also responsible for ensuring their employees continue to have the right to work throughout their employment. This means completing follow-up checks on those who have time-limited permission to work in the UK before their status expires.

Irrespective of their length of service, pregnant employees are entitled to maternity leave of 52 weeks. Depending on length of service, pay is normally 90% of average weekly earnings for the first 6 weeks then the Statutory Maternity Pay (SMP) rate for the remaining 33 weeks. 13 weeks is therefore unpaid.

The pregnant employee needs to have at least 26 weeks’ service with their employer at the 25th week of pregnancy to be eligible for Statutory Maternity Pay. If you have been with the company for a shorter time, instead they may receive a maternity allowance from the DSS.

New fathers are legally entitled to take up to 2 consecutive weeks’ paternity leave when their baby is first born. It may be taken as a block anytime within 8 weeks of the birth. This is paid at the statutory Ordinary Paternity Leave (OPL) rate.

To be eligible, they must have worked for the company for at least 26 weeks before the 25th week of the pregnancy, and still be employed by the same company on the date of birth. There are also legal requirements that men taking paternity leave must notify their manager in writing 15 weeks before the date the baby is due and give 28 days’ notice if they wish to change the start date.

An employer is able to recover the cost of SMP (Statutory Maternity Pay), SPP (Statutory Paternity Pay) and SAP (Statutory Adoption Pay) from the government. The amount recovered depends on the annual National Insurance payments made by the employer.

Refer anyone enquiring about it to the free online advice on the government’s website, where they will be able to use the pay and leave calculator to check their eligibility. If they’re applying, they should download the forms, complete them, and submit them to you as “Notice of Entitlement and Intention to Take SPL”.

The employer isn’t responsible for checking anything about the leave being shared with their employee’s partner, the onus is entirely on the employee to declare the arrangements on the forms. This written application for shared parental leave needs to be with the employer 8 weeks beforehand. This will give time to organise temporary cover for the employee's work, which may be needed for 50 weeks.

Both parents may take up to 50 weeks of leave shared between them following the birth of their child, in one continuous block or in several blocks. 37 of these weeks are paid at the statutory SPL rate. Shared parental leave needs to be taken within 52 weeks of the child’s birth.

WRONG – the employer is personally responsible for complying with Pensions Auto Enrolment requirements and there are stiff fines for failing to do this. If your accountant runs your payroll they will be able to advise you about the payroll deduction process and they may have the software to produce the standard letters required. However, most accountants are not licensed to deal with the legal requirements about pensions enrolment and selecting a pension scheme.

WRONG – individual employees are allowed to opt out after they’re automatically enrolled, but companies are not. The Pensions Regulator knows exactly who is employing how many people via their PAYE code.
There’s a long list of difficult policy decisions and complex processes that employers must implement with deadlines. It’s a highly complex piece of legislation and already a number of larger employers have been fined for non-compliance. The legislation really does have teeth.

WRONG – you are entirely responsible as the employer and nothing will happen automatically unless you make it happen. It’s called automatic enrolment because it is automatic for staff – they don't have to do anything to be enrolled into their employer’s pension scheme, but it is not automatic for the employer. The employer is responsible for taking steps to make sure their eligible staff are enrolled in a pension scheme.

Employees have the right not to be unfairly dismissed. Dismissal is normally fair if an employer is able to show that it is for one of the following reasons:

• a reason related to an employee's conduct
• a reason related to an employee's capability or qualifications for the job
• because of a redundancy
• because a statutory duty or restriction prohibited the employment being continued
• some other substantial reason of a kind which justifies the dismissal

Furthermore, you should show that they acted reasonably in treating that reason as sufficient for dismissal.

Employees normally require two years’ continuous service in order to be able to claim unfair dismissal. However, there are important exceptions where a claim can still be made without any length of service requirement. These are dismissals classed as 'automatically unfair' where the grounds for dismissal are connected with an employee exercising specific rights relating to:

• pregnancy, including all reasons relating to maternity
• family reasons, including parental leave, paternity leave, adoption leave or time off for dependants
• representation, including acting as an employee representative
• trade union membership grounds and union recognition
• part-time and fixed-term employees
• pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage

A constructive dismissal claim is one where the employee has resigned in circumstances where they felt forced to do so because of the employer’s behaviour. A constructive dismissal claim will always be an unfair dismissal claim, and if the person did not receive their full notice payment, it will be a wrongful dismissal claim as well.
To prove a constructive unfair dismissal, an employee must demonstrate that:

• the employer has breached the contract and;
• this is a significant or fundamental breach of contract and
• they terminated their employment in response to that breach and did not delay resigning.

In wrongful dismissal claims, damages are calculated as for any other breach of contract, so an employee will be entitled to their full net salary for the contractual notice period, and compensation for loss of other benefits for that period.

Unfair dismissal awards are made up of:

• A basic award, to compensate for the loss of job security calculated on the basis of the employee's age and years of service multiplied by a maximum weekly amount. The current weekly amount is £479 to ...£525. - it is indexed linked and usually changes every year. The maximum basic award is currently £15,750.
• A compensatory award in addition to the basic award. This reflects immediate and future loss of earnings. The current maximum award is £86,444 or 12 months' gross pay, whichever is the lower.

Though usually capped at £93,332, The unfair dismissal compensation limit may be higher for:

• discrimination cases
• dismissals on health and safety grounds
• dismissals falling within the whistleblowing provisions of the Public Interest Disclosure Act 1998

If a tribunal orders that the claimant should be reinstated but the employer does not comply, a tribunal may award from 26 weeks to 52 weeks' pay as an additional award.