Employment Law
General Employment Law Obligations
Employers must:
- Pay employees at least the national minimum wage for employees over 22 years of age or older. This is currently £5.35 per hour. A development rate of £4.45 per hour for workers aged to 18 - 21 inclusive. £3.30 per hour for all workers under the age of 18 who are no longer of compulsory school age. (The development rate for workers age 22 and over was abolished for pay reference periods starting on or after 1 October 2006. From that date, all workers aged 22 and over who qualify for the national minimum wage will be entitled to the main rate of national minimum wage. This applies even where the worker was previously in receipt of the development rate for those aged 22 and over and had been receiving that rate for less than 6 months)
- Deduct tax and national insurance in accordance with Revenue requirements
- Provide an itemised pay statement
- Provide 20 paid holidays for full time workers, or the pro rata of this for part time workers. Currently these can include bank holidays
- Provide written particulars of employment to all employees (including temporary) who have more than 4 weeks continuous service
- Pay men and women equally for equal work
- Pay statutory sick pay for eligible employees & keep minimum records.
- Pay 5 days 'guarantee payments' to employees in a 3 month period when work cannot be provided
- Not engage in or permit direct or indirect discrimination on grounds of sex, race, sexual orientation, nationality, ethnic grouping, religious creed or belief, disability and from 2006, age. Discrimination is prevented in recruitment as well as employment. Employers must not directly or indirectly engage in or permit victimisation, sexual harassment or other harassment or bullying. In some cases, employers are also liable for the actions of their employees who engage in these activities, even when the employer is unaware of their employee's actions
- There are certain additional obligations not to treat disabled employees or job applicants less favourably than others
- Not treat part time or fixed term workers less favourably than their full time equivalents
- Provide 2 weeks paid paternity leave to qualifying male employees
- Provide 26 weeks paid adoption leave to a qualifying male or female employee, plus a further 26 weeks unpaid if requested
- Provide 26 weeks paid maternity leave to qualifying female employees, plus a further 26 weeks unpaid if they meet minimum service requirements
- Provide 13 weeks unpaid parental leave (18 weeks for a disabled child) for each child up to 5 years old to qualifying employees
- Consider requests from qualifying employees to work flexibly
- Consider requests from women returning from maternity leave to work flexibly
- Allow workers to be accompanied by a fellow employee, or trade union official during certain meetings
- Keep personal data and records in accordance with the Data Protection Act 1998, including allowing employees reasonable access to inspect any information relating to them held by their employer
- Provide reasonable time off work (and sometimes payment) for employees who undertake certain public and trade union duties, or to care for dependants under certain circumstances
- Ensure that Working Time regulations are adhered to, including ensuring employees do not work more than 48 hours per week on average over a 17 week period (unless a 'waiver' has been signed) and daily and weekly rest periods are provided. There are special provisions for the treatment of night workers, young workers and children
- Not employ children of under 13 years of age, and only employ children over 13 and under 16 for certain hours and jobs
- Provide written reasons for dismissal in all cases where an employee is pregnant, or on maternity leave or for all employees with 1+ years service
- (for employers with 5+ employees): Offer a stakeholder pension scheme.
- Follow established consultation procedures when carrying redundancies, collective consultation of at least 30 days where 20+ redundancies are planned, 90 days where 100+ are planned
- Provide a healthy and safe working environment
Absence management
Dealing badly with absence cases is one of the most common reasons for companies losing Employment Tribunals. In situations where an employer is 'managing' a cluster headache sufferer's attendance either formally or informally, the sufferer needs to be aware of the information below. N.B. The full information about how an employer should handle disciplinaries and dismissals is far more lengthy and complicated than this, and there are many more pieces of legislation to consider but the following serves as a general guidance on proper procedure.
Investigating absence
Where an employee has been identified as having a poor attendance record, their manager should investigate this. Specifically the manager should try and find out whether there are any underlying medical issues that may be preventing the employee from attending work normally, or any other issues, e.g. that the employee is being bullied or harassed, or is for some other reason unable to attend work normally.
Where the employee indicates that there is an underlying medical reason for their absences, then further investigations should be made. The manager should seek to obtain a medical report from the employee's GP or Specialist. For more information on obtaining medical reports, see below
If an employee's claim that an underlying medical condition exists proves fruitless (or they refuse to give their consent to obtain a report), or no evidence can be found after proper investigation to support other allegations, then the manager may apply the Disciplinary and Dismissal Procedure. Note though, that in judging whether an employer has acted reasonably, a tribunal will look at the extent of an employer's investigation and will decide whether it genuinely looked into the employee's claims prior to taking disciplinary action. It is important then to ensure that investigations are thorough and well documented.
Where there are good reasons for the absences
Where it transpires that an underlying medical condition does indeed exist, and that the condition has affected and will affect the employee's attendance, you should treat the matter as described in 'Managing long term absence' and 'Dealing with long term absence'.
Where an employee has a continuing absence, or known medical condition that affects their ability to attend work normally, it is important that an employer first investigates the issue and its implications. The initial step is normally to obtain a medical report from the GP or specialist treating the employee. The employer will specifically want to know:
- what the condition is;
- how long the employee might be affected;
- whether any treatment might affect their ability to do certain jobs or to attend regularly;
- whether and when they could be expected to make a full recovery or reach the required attendance standard;
- whether any adjustments could be made to help the employee return to work or improve their attendance levels.
The employee will need to give their written consent (via a 'Consent Form') in order for the employer to request such information. See below for more information on obtaining medical records.
Once the employer is in possession of the information required, a decision on how to proceed can be made. Where it is apparent that the employee's condition is only temporary, then the employer should offer support to the employee as necessary and obtain regular medical updates as necessary. A return on light duties (or part time) may be considered, although any decisions in this regard should take full account of medical opinion.
Where a full return to work in the foreseeable future seems unlikely the employer must consider whether alternative duties for the employee, or adjustments to the working environment such as revised hours or adjustments to premises/equipment would enable a return. Ultimately though, dismissal of the employee may be unavoidable.
Altering hours, duties or making premises/equipment alterations
In the face of a medical issue that prevents an employee doing their normal job, but where the employee could do parts of the job or indeed different work, the employer should consider varying the employee's hours, duties and/or altering premises/equipment to accommodate them. If the employee is classed as 'disabled' under the Disability Discrimination Act 1995, employers must consider 'reasonable adjustments' to accommodate an employee.
A failure to make reasonable adjustments would be discriminatory, and as damages for discrimination on the grounds of disability are uncapped and the average award for disability discrimination in 2004 was over £16,000, employers are well advised to consult with the individual about reasonable adjustments.
What is 'reasonable' is very much open to the interpretation of the employer, but the employer's decision is open to challenge in Employment Tribunals.
If in doubt about whether or not a required adjustment for the employee to return to work is reasonable, you should seek advice.
When considering making adjustments, the employer should involve both the employee and their medical advisor to check that a) the changes will not be detrimental to the employee's health or recovery and b) that the employee is willing to accept the changes.
When adjustments to pay, hours or conditions are likely to be permanent, the employer should ask the employee to agree to a new contract of employment confirming the new conditions. If the employee refused to accept the new contract, he could ultimately be dismissed. Since this is a legally complicated area we would strongly advise you to seek advice before proceeding.
If the employee is to return part time for a temporary period their salary may be pro-rated and the arrangements should be confirmed in writing. If the return on part time hours is on a permanent basis, a new contract will be required as described above.
If an employee is unable to return to their own job because of an ongoing medical condition, and if no similar paid work is available, the employer may offer redeployment to a lower paid job. If the employee refuses to accept the alternative employment, then they may ultimately be dismissed. Under such circumstances the employer must be sure that such a decision is objective and justified and should seek professional advice before proceeding.
If an employee refuses to accept an adjusted role despite medical advice that such adjustments would be possible, it may be necessary to dismiss. Before dismissing though, the consequences of the refusal to accept should be made clear to the employee. We would advise all employers facing this situation to seek advice before proceeding.
When dismissal is the only option
When it is apparent that the employee is not going to return to work because of illness or injury, the employer may consider dismissing the employee. Before dismissing an employee, the employer should be fully satisfied that;
- Current medical information indicates that the employee will not be able to fully return to their normal duties in the foreseeable future; and
- no adjustments to premises, machinery, hours or duties are reasonably possible in order to facilitate a return to work, or the employee has a progressive condition and the increasing adjustments necessary to accommodate its effects become unreasonable; and
- the employee has been fully involved in the process and has been given every opportunity to suggest alternatives to dismissal, and that where such alternatives have been suggested, these have been properly considered.
Under such circumstances, the employee may be dismissed, with notice on grounds of 'Capability' (i.e. that they are unable to do their normal job). Dismissal should only take place after a hearing has taken place, ideally with the employee (or if he is unable to attend a representative on his behalf) and the normal rights of appeal and accompaniment should apply. Dismissal under these circumstances should be with notice.
OBTAINING MEDICAL REPORTS
Circumstances when you may need to obtain medical advice
An employer may decide to ask for medical advice when an employee's:
- apparent state of health at work is giving rise to work performance concerns; and/or
- apparent medical problem has caused them to be absent from work for an extended period; and/or
- apparent medical problem has given rise to a general poor attendance record; and/or
- alcoholism or drug addiction (the law requires employers in most circumstances to treat these initially as an illness, rather than a disciplinary issue) is a cause for concern.
In dealing with an employee who has an apparent medical problem, an employer will be expected to make all reasonable efforts to fully understand the problem, and to assess the range of possible courses of action that may be taken. It is good practice therefore that an employer asks for medical information in relation to an employee before taking action as a result of the employee's medical condition.
This is particularly important if you may dismiss the employee because of their poor attendance, or change their hours or job content. Whilst it is entirely possible to fairly dismiss an employee because a genuine medical condition is impeding their work or attendance at work, the process followed is critical. If an employee should complain to a tribunal that their dismissal under such circumstances has been unfair, the tribunal will consider carefully the actions of the employer leading to the decision to dismiss. Where medical circumstances are involved, a tribunal will normally want to see that the employer has obtained medical information as a part of this process.
Please note that it is not sensible to ask for medical advice for some circumstances. Examples include:
- a clearly visible injury for which the healing process is predictable, e.g. a broken leg
- short term occasional absence (although you may want to seek medical advice where the employee has several periods of short term absence for apparently unrelated conditions)
- most absences directly connected with pregnancy
The Consent Form & writing to the doctor/specialist
To obtain medical information you need to:
- obtain the employee's consent by asking them to sign a Consent Form
- inform the employee of their rights under the Access to Medical Reports Act
- write to the employee's GP/specialist enclosing the form.
Obtaining the employee's consent
Where employees are at work, or you are able to speak to the employee directly, you can ask them to sign a Consent Form. You should explain why you want to obtain medical information, what type of information you will be obtaining (See below for more information on this), and their rights.
Where an employee is absent from work due to sickness or injury and you do not have personal access to them, you should write to them enclosing a copy of the medical consent form and a stamped address envelope for their reply.
As well as giving or refusing consent, an employee has several options in accordance with the Access to Medical Reports Act 1988. We will deal with these below.
The employee refuses consent
Under these circumstances, you should record the employee's refusal in writing. In addition to the letter, you should point out to the employee that their refusal to give consent will mean that any decisions you need to take about their employment will have to be taken in the light of the information you have available. A tribunal will want you to have made every reasonable effort to gather relevant information, but cannot blame you when prevented by your employee from doing so. They will however want to be assured that you have pointed out the consequences of refusing consent.
Employee gives consent but want to exercise the right to see the report first.
Where this is the case, you must state in your letter to the employee's GP/Specialist that the employee wishes to have access to the report before you do.
Unfortunately where an employee chooses this option, this can delay proceedings. The employee has 21 days from the date of the application for medical information in which to visit their GP/Specialist or contact them to request a copy. If they do not make any attempt to view the report in 21 days, then their GP/Specialist is at liberty to forward the report to you.
Once they have seen the report, they can ask the GP/Specialist to make any alterations to it, or if their request is refused they can ask that their objections be recorded on the report. Until any amendments or objections have been added you have no right to access the report, and regrettably, doctors can be notoriously slow in this regard.
Writing to the employee's GP/Specialist
Larger employers may have access to the services of an occupational doctor, who is specially trained in the requirements of the workplace and paid by the employer to help with issues like these. If you have an occupational doctor, then normally s/he will contact the employee's Specialist or GP on your behalf.
Under these circumstances, the Occupational Doctor can request detailed medical information relating to the employee's condition which will help him or her reach a prognosis on the likelihood of recovery and the length of time the employee's work may be affected. The Occupational Doctor will then be able to advise you of how long the employee may be absent, what adjustments need to be made to the employee's job etc. S/he may not however divulge detailed medical information to you, since this must be kept confidential between doctors.
Smaller employers will probably not have access to an Occupational Doctor, and so the approach will be different. Here you may ask for detailed medical information if this is relevant, but of greater interest and importance will be specific questions about the employee's health in relation to their work. For example you may ask:
- for confirmation that the employee has a recognised medical condition
- whether they are expected to recover from the condition sufficiently to return to work a) partially and b) normally, and if so how long this recovery period might be
- what restrictions on the type of work might be necessary during the treatment period
- whether there are any long term implications on either the type of work or the employee's ability to attend work normally after the treatment has been completed
It is particularly helpful if, when requesting information, you describe the employee's job content in sufficient detail to enable the Doctor/Specialist to answer questions in a considered way. You should also offer to pay any reasonable fee (which most doctors will charge) for providing you with such a report.
If the decision is taken that the company has no alternative but to dismiss and all the correct procedures regarding investigation of the illness have been followed, suitable alternatives have been explored etc, since 2004 all qualifying employees have been legally entitled to the statutory minimum dismissal and grievance procedures under the Avoidance of Dispute Regulations:
The Employment Act 2002 (Dispute Resolution) Regulations came into force on 1 October 2004
Standard Dismissal and Disciplinary Procedure.
The Act established the following statutory procedure that must be followed in the circumstances set out in the Regulations.
Standard (three-step) dismissal and disciplinary procedure:
Step One
The employer must set down in writing the nature of the employee's conduct, capability or other circumstances that may result in dismissal or disciplinary action, and sends a copy of this statement to the employee. The employer must inform the employee of the basis for his/her complaint.
Step Two
The employer must invite the employee to a hearing at a reasonable time and place where the issue can be discussed. The employee must take all reasonable steps to attend. After the meeting, the employer must inform the employee about any decision, and offer the employee the right of appeal.
Step Three
If the employee wishes to appeal, he/she must inform the employer. The employer must invite the employee to attend a further hearing to appeal against the employer's decision, and the final decision must be communicated to the employee. Where possible, a more senior manager should attend the appeal hearing.
