What legal entitlements do employees have?
The legal entitlement of your staff during their time with your business depends on whether they are classed as an employee, a worker, self employed or agency staff.
Self employed staff have limited employment rights. They are likely however to have protection under the discrimination legislation in relation to your engagement of them.
Agency staff are not normally your employees. If anything, they will have no employer or the agency business which provided them will be their legal employer. That said, there are agency worker regulations which protect agency staff on discrimination when compared to employees in your business. Agency staff gain certain rights from day one of their engagement by you and other (more important rights such as the right to the same basic terms and conditions of employment as comparable employees such as key elements of pay, annual leave and rest breaks) from twelve weeks. Agency workers also have protection under the discrimination legislation.
Employees have the most protection at work as well as the greatest number of rights. For example, employees are entitled to holiday pay, national minimum wage, the right to a statement of their basic terms and conditions of employment within two months of starting work, maternity, adoption and parternity leave and pay, a minimum period of notice, the right to request flexible working, sick pay and the right not to be unfairly dismissed.
Consulting with staff about changes
If you are considering making changes to your business that will affect the jobs your staff do, you must nearly always consult with them about the changes before they are implemented. This type of change normally include changes to terms and conditions of employment, reorganisations, redundancies, the sale of a business and the transfer of a service provision.
The type of change to be implemented will dictate exactly what type of consultation is undertaken and how that consultation should be handled. Broadly speaking however, the consultation should be started with the intention of seeking ways to minimise the affect of the changes planned or to avoid them altogether. This consultation may need you to consult with unions if any staff are union members.
If you don't consult properly, your business is exposed to Employment Tribunal claims of unfair dismissal and/or failure to follow proper consultation procedures. The financial liability for your business can be significant, especially if there are a lot of staff involved.
Staff leaving or requiring dismissal
You may need to exit individuals or groups of staff for a number of different reasons. A downturn in work could mean you need to make redundancies. A member of staff may not be performing, or you may think they are guilty of misconduct. Whatever the reason, we can help.
We regularly advise companies on implementing correct redundancy procedures. These include advice on consulting with staff (and possibly Unions), both collectively and individually, as welll as how to run an election process to appoint staff representaives.
If a senior executive leaves, we can advise you on manging their exit and minimising any disruption or risk to your business. This is often done via a settlement agreement. We can also advise on any financial entitlements an employee may have such as share entitlments and notice pay, as well as how to protect the business if the employee has signed restrictive covenants.
We can also help you deal with internal and external announcements to staff and third parties including clients and suppliers.
If an employee is guilty of misconduct it may be possible to dismiss them. You will almost always need to go through a proper procedure before you dimiss though. If you don't, you run the risk of an unfair dismissal claim.
A member of staff has misbehaved what should I do?
Misbehaviour in the workplace should not be tolerated. It is important for your business to take quick and appropriate action to stop that misbehaviour occurring again but also to make it clear to other staff that misbehaviour will not be tolerated.
The key to tackling misbehaviour is the implementation of a proper disciplinary process followed by the proper implementation of that process as soon as possible. If the misbehaviour amounts to gross misconduct, it is paramount that a proper procedure is followed. If a proper disciplinary procedure is not followed, there is a real risk that you are unable to defend unfair dismissal proceedings brought against your business.
A member of staff is not performing what can I do?
Managing poor performance is essential for the long term welfare of your business.
With this in mind, if a staff member is not performing, it is important to address the situation quickly, so the behaviour is not seen to be condoned by management.
It is imperative to find out what is causing the employee to underperform so you can confront the issue and redirect their behaviour to improve performance.
Our employment team can discuss your options with you and talk through the best ways to manage staff performance in your business
A member of staff has complained what do I do?
If a staff member has put a complaint in against your business or somebody in it, you should commence your grievance process as soon as possible. In order to avoid the complaint escalating, it is important that the grievance process is followed fully and is fair to both you and your staff.
If you don't follow a proper grievance process, an Employment Tribunal could increase compensation against your business if the staff member who brought the complaint was succcessful in an Employment Tribunal claim.
A member of staff wants to change their working arrangements
All employees have a statutory right to ask their employer for a change to their contractual terms and conditions of employment provided they have worked for more than 26 weeks continuously at the date the application is made. An employee can only make one statutory request in any 12 month period. This is often known as a flexible working request.
We can support you in writing a policy which clearly explains the procedure staff should take when requesting flexible working. This policy would explain how they make the application, who it should be made to and what should be included. Importantly, this policy should set out clearly what you, as their employer, need to do once you have received that request.
If you don't handle the flexible working request properly, your employee can seek compensation at an Employment Tribunal. You may also be opening yourself up to a claim of sex discrimination if you don't have a good and justifiable business reason for rejecting any flexible working request, for example, from a working mother.
We can advise you on the full impact of these types of requests, how to handle them in everyone's best interests and how to minimise the risk to your business of claim against you.