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FAQs: Common Employment Law Questions

Here our Employment Law Team answers some employers’ questions about employment contracts and terms and conditions of employment

  1. You are making redundancies. Once you have selected people, you would prefer them to leave immediately rather than work their notice. Can you pay their notice in lieu instead under Employment contract law?
  2. If there is an additional Bank Holiday announced, do you have to let your staff have this day off as well?
  3. You did not have a contract of employment prepared for a recent new starter. He was unhappy and said he was entitled to an employment contract from day one. Is he right?
  4. You have had to make redundancies, including some long serving staff. One has written to you saying he is entitled to more notice. You gave one month as set out in your employment contracts. Is he entitled to more?
  5. One of your new staff members has gone sick twice in quick succession. Your employment contracts provide for two weeks’ sick pay with more for longer term staff. You’ve never had anyone exhaust their entitlement before. She’s about to exceed two weeks off. Can you stop paying her?
  6. You are sure some of your staff are accessing their Facebook accounts during work time. What can you do?
  7. Over the years, you have employed new staff on terms where you had flexibility over when you could require them to work. This fitted your business needs. However, some staff have employment contracts that only require them to work 9-5. You want to bring everyone on to the same flexible terms. How can you achieve this?
  8. Your employee has made a complaint about his manager. What should you do?

You are making redundancies. Once you have selected people, you would prefer them to leave immediately rather than work their notice. Can you pay their notice in lieu instead under Employment contract law?

Unless you have a contractual right to do so, paying in lieu of notice is technically a breach of contract. However, there is no detriment and your employees might prefer this as it would give them additional time to look for a new job. Also, you may be able to pay their salary gross rather than net, if it is not a contractual payment. You might also have to compensate them for the loss of other benefits that might be withdrawn on immediate termination, such as private healthcare or a company mobile phone. If their terms of employment contract provide for pay in lieu of notice, deductions for tax and national insurance would be due.

If there is an additional Bank Holiday announced, do you have to let your staff have this day off as well?

This depends on whether your terms of employment contract provide for a period of annual leave with public holidays ‘on top’. The law on holidays is derived from the Working Time Regulations. Under these, workers are entitled to 5.6 weeks holiday a year, but no particular days are specified. That is, there is no statutory right to be off work on public holidays. If your employment contracts say your employees are entitled to all bank holidays, without specifying these are the usual eight, you will have to pay for the additional day this year.

You did not have a contract of employment prepared for a recent new starter. He was unhappy and said he was entitled to an employment contract from day one. Is he right?

There is no legal requirement to provide a contract of employment. Under the Employment Rights Act employees must be provided with a written statement of employment particulars (terms and conditions of employment). The Act sets out what must be included, but does allow some particulars to be in another document. Written employment contracts usually cover additional issues. The initial statement of employment particulars must be provided no later than two months after their employment begins.

You have had to make redundancies, including some long serving staff. One has written to you saying he is entitled to more notice. You gave one month as set out in your employment contracts. Is he entitled to more?

Although many employers issue employment contracts setting out notice periods the employer will provide, there are also statutory notice rights set out in law. These entitle employees to one week’s notice for each complete year of service up to a maximum of 12. So if your employee had been working for five years or longer he is entitled to more notice.

A new staff member has gone sick twice in quick succession. Your employment contracts provide for two weeks’ sick pay with more for longer term staff. You have never had anyone exhaust their entitlement before. She’s about to exceed two weeks off. Can you stop paying her?

If your employee earns enough to have to pay National Insurance contributions she will be entitled to Statutory Sick Pay (SSP). This is not payable for the first three days of sickness and lasts for 28 weeks. Her first absence will count for this as absences within eight weeks are linked. The weekly rate is £96.35 from 4 April 2021.

You are sure some of your staff are accessing their Facebook accounts during work time. What can you do?

It is a good idea to set parameters for what staff can do at work with your technology. You need to review this and introduce a comprehensive policy setting out what they can do and how they should conduct themselves online. This can encompass personal use, email etiquette and any monitoring you carry out. Once rules are set, if these are broken you have grounds for disciplining offenders.

Over the years, you have employed new staff on terms where you had flexibility over when you could require them to work. This fitted your business needs. However, some staff have employment contracts that only require them to work 9-5. You want to bring everyone on to the same flexible terms. How can you achieve this?

No party has the right to change the terms of a contract of employment without the agreement of the other side. You may be able to get your employees to agree, especially if you offer a one-off incentive. Otherwise, they will be within their rights to refuse to work outside their allotted hours. If no agreement can be reached and you still want to make the change, your only option is to terminate the contracts of employment providing appropriate notice and offer to re-employ them on the more flexible terms. Your employees would be entitled to claim unfair dismissal. The Employment Tribunal assessing the claims would look at issues such as your business reasons, how you consulted and how many people agreed and refused. If it was satisfied this was a dismissal for some other substantial reason, you would not be found to have unfairly dismissed your employees.

Your employee has made a complaint about his manager. What should you do?

Although you are not required by law to have a grievance procedure, it is advisable to have one that complies with the Acas Code of Practice on Disciplinary and Grievance Procedures. The Code sets out how you should deal with complaints. If you end up losing an Employment Tribunal claim, the compensation awarded could be increased by up to 25% if you unreasonably fail to comply with it.

Find out how we can help with all your Employment Law contract questions by visiting our employment contract advice page or contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UB
T: 01273 609 991 info@ms-solicitors.co.uk

Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.

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