Employment Advice (employers) – Frequently asked questions
Do I need to give my employees written contracts of employment?
As an employer, it is important that employees have contracts of employment in writing, so as to protect your business.
If not, a verbal contract will exist and terms will be effectively created by reference to usual practice, custom and implication. To prevent misunderstandings and disputes and to ensure the assets of your business are properly protected, we recommend a well drafted written contract of employment signed by both parties is an absolute priority.
Employers should remember their legal obligation to provide their employees with a written statement of particulars of employment with two months of the commencement of employment. The penalty for failure to provide such a statement, or provide an inaccurate of incomplete statement could be compensation payable to the employee should they pursue a claim at an Employment Tribunal.
Does the firm require an office manual or staff handbook?
It is best practice to have the office policies and procedures set out for employees in a staff handbook. They ensure that rules are established and communicated to new and existing employees and prevent misunderstandings and disputes through lack of information. They can be an important piece of evidence for employers in disputes. Whilst policies and procedures can be individual documents it is usually better for them all to be kept in one handbook.
Can an employee be dismissed for poor performance?
Yes, although you must exercise care and ensure that you follow procedures set down in your staff handbook because the procedure in conducting a dismissal is deemed to be as important as the reason in the Employment Tribunals. We would strongly advise you to take legal advice before dismissing an employee to ensure that you do not inadvertently provide the employee with a valid claim against you.
Can I dismiss an employee who has worked for me for less than two years?
Yes as long as the grounds for dismissal are not those that can be claimed by the employee to be ‘automatically unfair’ (under the Employment Rights Act 1996) nor by virtue of a ‘protected characteristic’ (under the Equality Act 2010).
It is also necessary to ensure that sufficient notice is provided to employees. If an employee has under-performed in their first two years of employment then an employer should consider dismissing them before they have completed 1 year and 50 weeks of continuous service to ensure the relevant notice period can be given. Again, we would strongly advise you to take legal advice to avoid a claim against you.
Can I automatically dismiss an employee who is over 60?
No this would be age discrimination. Legislation covers people of all ages, both young and old. This means that you cannot recruit, train promote or dismiss an employee on the basis of their age alone. You will need to justify all your decisions objectively. Compensation is recoverable if discrimination is found to have occurred.
I want to buy an existing business. Do I have to take on the existing staff?
Legislation exists (TUPE) which ensures an employee’s terms and conditions of employment when an existing business is transferred to a new employer. This means that employees employed in an existing business automatically become employees of the new employer on the same terms as before. Because an employee’s continuity of employment is preserved this means their length of service continuous. Employees have a right to be informed and consulted regarding the transfer and we would strongly advise any employer selling their business or a new employer buying an existing business to take legal advice to ensure correct procedures are followed.
How do I make an employee redundant?
There must be a genuine redundancy situation and the correct procedure, which includes consultation, must be followed when making employees redundant to avoid an Unfair Dismissal claim. Ordinarily an employer cannot pick on one employee and make that employee redundant. Every employee who holds a similar position should be involved in the consultation process and every employee should be given the opportunity to voice opinions, objections and make alternative suggestions. The selection criteria is critical and employers should always take advice to ensure they avoid an Unfair Dismissal claim being made against them, which can be extremely costly.
An Employee has made a claim against me. Will you act on my behalf at the Employment Tribunal?
Yes. Couchman Hanson Solicitors regularly represents employers at Tribunals. Daniel Couchman was admitted to the Bar, having trained as a barrister before becoming a solicitor. We also have very strong links with barristers’ chambers and seek to provide the highest calibre of advocates.
What is a Settlement Agreement?
A Settlement Agreement is a legally binding agreement between an employer and employee where the parties record the terms of settlement when a contract of employment is terminated. Its purpose is to provide certainty for both parties and once executed, it excludes an employee’s right to make a claim against an employer in the Courts or the Employment Tribunals. They are an extremely effective tool for an employer in a dismissal situation and Couchman Hanson Solicitors can draft these on your behalf.
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