1.1. With the intention of giving greater job security to workers in the early months of their employment, the requirement to have 2 years’ continuous service before being eligible to bring an unfair dismissal claim will be abolished.
1.2. Instead, subject to an “Initial Period” (probationary period), an employee will have a right to bring a claim for unfair dismissal from day one.
1.3. Employers can potentially justify a decision to terminate employment during the Initial Period where they can demonstrate:
1.3.1. That the decision falls within 4 potentially fair reasons for dismissal: capability, conduct, statutory restriction or some other substantial reason (SOSR); and
1.3.2: They have followed the statutory procedure (which is yet to be determined but is likely to be fairly light touch).
1.4. The Initial Period is likely to be 9 months, but we are waiting for further Regulations before this is certain. Further detail is required, but the intention is to make it easier for an employer to dismiss someone during this period if it is not working out.
1.5 The government has also indicated that compensation for successful unfair dismissal claims during the Initial Period will attract lower compensation than the usual remedies for unfair dismissal.
1.6. This change is not going to be made until autumn 2026 at the earliest. We would recommend that you start to train managers on how to manage a probationary period effectively, so that it is second nature by the time the changes come in.
2.1. Although Labour’s manifesto talked about the right to work flexibly being a day one right, that has not translated into the Employment Rights Bill.
2.2. It still remains a day one right to request flexible working. What will change is the inclusion of reasonableness into the decision of employers to refuse a flexible working request. An employer will have to explain the grounds for any refusal and why that refusal is reasonable.
2.3. Draft regulations are expected with the right not coming into force until the middle of 2025 at the earliest.
3.1. A new duty on employers to take reasonable steps to prevent sexual harassment at work has already come into force from 26 October 2024. Employers who fail to take reasonable steps could be subject to a 25% uplift of the compensation award in a Tribunal.
3.2. The Employment Rights Bill extends this duty and requires employers to take all reasonable steps. Regulations will be published to specify what those steps might be – for example, publishing sexual harassment policies, training of staff to recognise and report sexual harassment, and risk assessments to help minimise any risk of sexual harassment.
3.3. The Employment Rights Bill will make employers liable for third party harassment of employees during the course of their employment and where the employers has failed to take all reasonable steps to prevent harassment on the basis of protected characteristics, including sexual harassment.
3.4. There is no date yet for when the Regulations are going to be published.
3.5. Employers should, if they haven’t already, take steps to ensure that they are compliant with the current duty to prevent sexual harassment.
3.6. To make life easier, we have a Prevention of Sexual Harassment toolkit which will give you everything you need to help you comply with the current legislation. Please click on this link to register for more information.
4.1. Disclosure of sexual harassment is already covered by the existing protection of disclosures showing breach of a legal obligation under whistleblowing legislation, and disclosures of this nature arguably already amount to a protected act under S.27 of the Equality Act 2010. However, the Employment Rights Bill explicitly includes that a disclosure that sexual harassment has occurred or is likely to occur will qualify for protection under whistleblowing legislation.
5.1 This Act received Royal Assent on 18 September 2023 and gave workers the right to apply for a change to their terms and conditions of employment with the purpose of obtaining a more predictable working pattern. Note that this was not the right to a more predictable working pattern itself; just the right to request one. The government expressed concerns that this was not robust enough and did not give workers sufficient security in their employment.
5.2. This Act has already been scrapped as part of the Bill. Instead, the government will introduce the right for workers to have a contract which is reflective of their actual working pattern which reflects the government’s intention to give employees more certainty about their hours and times of employment. However, importantly, individuals who are offered guaranteed hours will be able to remain on zero hours contracts if they wish.
6.1. The government’s manifesto promised to end “exploitative” zero hours contracts, but the Employment Rights Bill (“the Bill”) doesn’t go quite this far. There is no definition of what “exploitative” might be however the scope for an employer to offer a contract with no defined hours is more or less removed.
6.2. The measures in the Bill are complex and detailed and cover the right to guaranteed hours, the right to reasonable notice of shifts and shift changes.
6.3. We’ve summarised the key points in tabs 7 & 8 below. All are subject to further clarification and confirmation through Regulations.
7.1. This right will apply to workers who either:
7.1.1. Work under a zero hours contract or “arrangement” or
7.1.2. Work under a contract for a low number of minimum guaranteed hours but work more than those hours in the reference period (see below).
7.2. This will require an employer to offer a minimum hours contract, which will be based on the previous working patterns of the employee, known as the “reference period”. Employers will have to offer workers guaranteed hours, and the hours must reflect the pattern of days and times of working hours within the reference period. The reference period itself will be set by secondary legislation but may be as little as 12 weeks.
7.3. To qualify, a worker does not need to have been employed without a break through the reference period and can have more than one contract during the reference period.
7.4. If the worker accepts the guaranteed hours contract then it appears that the guaranteed hours will commence the next day. The worker has a ‘response period’ in which to reply to agree or otherwise, which begins with the day after the day on which the offer is made, and ends with the specified day which will be set out in regulations.
7.5. Agency workers are often employed on zero hours contracts and at present the Bill does not apply to them. This is likely to change; the government have put forward amendments to the Bill to give agency workers the equivalent rights.
7.6. Whilst employers will be required to offer the minimum hours contract, and to give workers information on their rights, workers will have a right to refuse and will have the opportunity to remain on their current arrangement if they prefer. It appears however that the employer will have to periodically re-offer the right, apparently at the end of each reference period. This obligation will be ongoing for so long as the worker remains on a qualifying contract.
7.7. There will be exceptions, for instance where there is a genuine need, such as seasonal workers.
7.8. Employers are not able to use the opportunity to change any other terms of the contract, the Bill explicitly prevents this.
7.9. The government intends to consult on the measures, and is to set out further details in regulations. Timescales are uncertain, and there are a good number of questions still outstanding, such as the definition of “low hours”, what the response times are, the exceptions to the rule and what the compensation would be at tribunal.
7.10. If all employees qualifying for a guaranteed minimum hours contract accept the offer, the employer could find themselves overstaffed at periods of low demand.
7.11. Failure to comply with the new requirements could result in the employee making a claim to the Employment Tribunal.
7.12. For our HR Protect clients, we recommend you contact your usual adviser for guidance on managing contracts where there are fluctuating work levels.
8.1. An employer will have to provide reasonable notice of shifts, including the time, day and number of hours to be worked.
8.1.2. Further to this, employers will have to pay workers if they cancel, move or curtail an agreed shift with insufficient notice. What counts as ‘reasonable’, and ‘short notice’, will be consulted on ahead of being included in secondary legislation. An equivalent provision is proposed in relation to agency workers.
9.1. Currently an employer must have a written policy to demonstrate how tips are allocated to staff.
9.2. The Employment Rights Bill will bring in a requirement to consult with staff about the policy and then publish the results of that consultation. These provisions complement the provisions of the Tips Act 2023 which came into effect in October 2024, requiring employers to distribute tips fairly and transparently across the workforce.
9.3. There will be a requirement to review the policies and consult with staff every 3 years.
10.1.1. Bereavement leave at present is limited to parents of a deceased child, who are entitled to take two weeks of paid leave.
10.1.2. The Employment Rights Bill removes the requirement that only parents are eligible for bereavement leave. The minimum period of leave will be one week, and a bereaved person will be entitled to leave in respect of each person who has died (if more than one). Where the person who has died is a child, the minimum period of leave remains at two weeks. Bereavement leave will be unpaid, except where a child under 18 has died, in which case statutory parental bereavement pay continues to be payable.
10.1.3. At present it is left rather vague as to what the relationship with the deceased person should be for an individual to qualify for this bereavement leave. Further regulations are to due be published in due course to help clarify this issue.
10.1.4. Furthermore, the Employment Rights Bill will also ensure that from day one, all employees will be eligible for bereavement leave and there is no minimum qualifying period.
10.2.1. Under current legislation, an employee must have been in their current place of employment for a minimum of one year before they may take any unpaid parental leave. Once eligible, an employee then is entitled to 18 weeks of unpaid leave in total. Whilst this cannot be taken all at once, with parental leave capped at 4 weeks per year, parents are free to utilise their allowance of leave at any time right up until their child’s 18th birthday.
10.2.2. The Employment Rights Bill will remove the qualifying period for parental leave. Parental leave will therefore be a right available to all from day one. The Employment Rights Bill will not amend either the length or cap of how this can be taken.
10.3.1. The law currently provides protection from dismissal by reason of redundancy for a period of six months following a return to work after maternity leave.
10.3.2. The Employment Rights Bill proposes to ban all forms of dismissal during pregnancy, maternity leave or during a six month period after returning from maternity leave apart from in specific circumstances. Details will be published in the regulations which are expected no earlier than mid-2025
10.3.3. It is also proposed that regulations will be introduced to cover other forms of statutory family leave such as adoption leave and shared parental leave.
10.4.1. The Employment Rights Bill will also strengthen the rights of new fathers. Under existing legislation, there is a minimum qualifying period before an employee is entitled to two weeks of paid paternity leave. An individual therefore must have been with their current employer for at least twenty-six weeks before they are permitted to take any paternity leave.
10.4.2. The Employment Rights Bill however abolishes the twenty-six week minimum period. Therefore, as will soon be the case with parental leave, employees will have a statutory right to paternity leave from the beginning of their employment.
10.5. We recommend that you review your policies. Whilst no timeframes have been confirmed yet, it will be important to stay ahead of the curve to ensure that you are prepared for when this legislation comes into force.
10.6. For our HR Protect clients, we will do the hard work for you. Just ask your usual adviser and they will provide you with an up to date policy.
11.1. The Employment Rights Bill abolishes the practice of “fire and rehire”. It will become an automatically unfair reason to dismiss an employee if the reason is:
11.1.1. the employer sought to vary the employee’s contract of employment and the employee did not agree to the variation; or
11.1.2. the employer dismisses the employee in order to employ someone else or to re-engage the employee under a varied contract of employment on substantially the same duties as before.
11.2. There will be exceptions, including where:
11.2.1. the proposed contractual variation removes or significantly reduces any financial difficulties of the employer; or
11.2.2. the employer could not reasonably have avoided the need to make the variation.
11.3. It is going to be extremely difficult for employers to force through any changes to terms and conditions where the employees will not agree to them. It is only going to be possible in extreme circumstances where the employer is at risk of collapse. It is unclear when these changes will come into force but it is unlikely to be before 2026.
12.1. Statutory sick pay will be payable from day one of sickness, rather than on and from day four as at present.
12.2. The Employment Rights Bill proposes amendments to the rate paid by an employer to remove the lower earnings limit, making statutory sick pay available to all workers. Instead there will be a prescribed percentage of the employee’s weekly earnings, or a minimum of £116.75, whichever is the lower. The prescribed percentage will be set by the Secretary of State following consultation.
13.1. The time limit to bring a claim to a tribunal will be extended from three to six months. This is a significant change and was announced as part of a series of amendments to the Employment Rights Bill on 26 November 2024.
14.1. The Government has announced that it will introduce a new requirement for employers with 250 or more employees to develop and publish an ‘action plan’ showing steps that they are taking in relation to their employees with regard to gender equality. This will include addressing the gender pay gap and supporting employees going through the menopause. This is likely to be an annual requirement for those employers.
14.2. In addition, matters related to menstrual problems will be included in the definition of “matters related to gender equality” and may require employers to produce an equality action plan.
14.3. The Government has also announced plans to develop menopause guidance for employers, although no further information is available as yet.
15.1. The collective redundancy consultation requirements are currently triggered when an employer is proposing more than 20 redundancies at one establishment within a 90 day period. If the affected employees were spread across a number of sites, it was only the number of employees at each individual site which would trigger the requirement to collectively consult.
15.2. The Employment Rights Bill proposed removing the concept of one establishment so that the obligation to collectively consult will kick in when there are 20 or more proposed redundancies across a whole business, regardless of the number of employees affected at individual establishments. However, the government has now scrapped this proposal and the current rules on this will remain, subject to the potential to increase the number that triggers collective consultation, suggesting that the requirements may actually become less onerous for employers, rather than more, as initially anticipated.
15.3. Consultation has taken place on increasing the maximum protective award and allowing employees to claim interim relief. The Government has also said that it will consult during 2025 on changing the minimum consultation period when an employer is proposing to dismiss as redundant 100 or more employees. The suggestion is changing the minimum period from 45 to 90 days. A significant increase.
15.4. The government will also increase the maximum period of the protective award available for failure to collectively consult from 90 days’ pay to 180 days’ pay.
16.1. Under the heading ‘Public Sector Outsourcing’ the Bill promises further rights for public sector workers who have been transferred under TUPE into the private sector.
16.2. The measures are intended to prevent the growing problem of a “two-tier workforce” where private and ex-public sector employees are on different terms and conditions. Regulations will be introduced with the suggestion that there may be a requirement to include provisions within outsourcing contracts that those transferring from the public sector into the private sector will be treated no less favourably.
17.1. Currently employers with over 250 employees must publish annual gender pay gap reports.
17.2. The Employment Rights Bill proposes that this requirement will be expanded to extend to name any providers or employers of contract workers. It is unlikely to be implemented before mid-2025.
17.3. At the present time, proposals to extend similar provisions to ethnicity pay gap reporting and disability pay gap reporting have not been included.
18.1. The Bill repeals legislation that the Labour government considers to be anti-Union and ineffective, including the majority of the Trade Union Act 2016 and the Minimum Service Levels (Strikes) Act 2023.
The Bill will strengthen the rights of union representatives in the workplace, for instance in increasing the allowance for paid facility time to undertake union related activities and for the employer to ensure that the representative has access to the necessary facilities.
The laws making ‘blacklisting’ illegal will be updated and protect a wider range of workers.
The law protecting workers from suffering detriment for taking industrial action will be strengthened. In addition, there will now be protection for employees from unfair dismissal when taking industrial action, regardless of the length of the strike.
There will be greater rights for unions to access workplaces for recruitment, organisation and collective bargaining purposes, including expansion to include digital as well as physical access. There will be a fast-track process for approval of access agreements that meet certain criteria, as well as appropriate mechanisms to enforce penalties for non-compliance with access requirements. Further details of this will be contained in secondary legislation following consultation.
Employers will have to provide their workers with information on their right to join a trade union both at the start of their employment and at intervals thereafter. The conditions for trade union recognition in the Trade Union and Labour Relations (Consolidation) Act 1992 will be amended to remove the 10 percent test and replace with a “required percentage test”, which is envisaged to be between 2-10 percent, making it easier for workers to vote for a right to trade union recognition at their workplace. There will also be an ‘opt out’ rather than an ‘opt in’ to payment for membership of the union.
The government was lobbied hard by the unions to repeal this law, which had allowed certain employers to issue a “work notice” requiring certain workers to work on strike days. The Bill therefore repeals this legislation, which appears in any event to have been rarely used.
The amount of information unions must include in ballot notices and industrial action notices will be reduced. The notice of industrial action that unions must provide to employers will be reduced to 10 days, and the period for which a ballot in favour of industrial action provides a valid mandate is to be increased from six to twelve months.
E-balloting will be introduced to make ballots more accessible.
20.1. The new Fair Work Agency will be able to enforce rights as well as providing advice to employers on compliance with the law. According to the government, the current system relies largely on individuals taking personal responsibility for enforcing their rights, resulting in the failure of employers to be challenged on breaches.
20.2. The Fair Work Agency will be responsible for co-ordinating the enforcement of a wide range of employment rights, providing a central unified authority as a point of contact. It will also be given powers to challenge businesses that breach the law, and enforcement powers such as the issue of civil penalties and the ordering of employers to compensate their workers.
21.1. The Employment Rights Bill will also improve the rights of school support staff. As is the case with carers in the adult social care sector, currently there is no national body that represents school support staff. Therefore, they lack a dedicated voice and institutions to advance and raise relevant issues.
21.2. The Employment Rights Bill will reinstate the School Staff Negotiating Body, which was abolished in 2010. As support staff make up nearly half of the school workforce, the creation of this institution establishes greater representation to those working in the sector. In particular, it will enable them to more easily raise issues such as pay, terms and conditions and training.
21.3. Again, a lot of the detail will be subject to consultation and the power to create the necessary secondary legislation will be delegated to the Secretary of State.
22.1. The Employment Rights Bill will strengthen the rights of care workers who are employed in the adult social care sector. At present, no body exists to represent those working in this sector, which in tandem with low rates of unionisation has meant their bargaining power has always been weak.
22.2. The Employment Rights Bill however will establish the process to create an Adult Social Care Negotiating Body (ASCNB). It is intended that this body will serve to represent the interests of care workers and act as a mechanism to improve their pay and conditions. As this sector is currently beset with high staff turnover and low domestic recruitment, the changes proposed under the Employment Rights Bill will likely be welcomed by those within it.
22.3. One important point to note however is that the Employment Rights Bill will not automatically create the ASCNB. Instead it will only set out the process and the ASCNB will be established at a later date through secondary legislation.
23.1. Labour met their commitment to introduce legislation within the first 100 days. The Employment Rights Bill has now completed the House of Commons Report and Third Reading stage. Over 200 amendments have been made and approved. There are still several stages for the Bill to pass through before it becomes law.
23.2. The Regulatory Policy Committee’s initial assessment of the Bill was that there are significant concerns on the rationale behind the measures, the identification of the options and the justification of the preferred way forward.
23.3. There has already been an amendment paper, totalling a sizeable 53 pages.
23.4. A significant number of the proposals are still subject to consultation and dependent on substantial changes to secondary legislation, with much of the detail to be worked out and implemented by the Secretary of State.
23.5. The intention is for the majority of the reforms to take effect in 2026, although some parts of the Bill will come into force in 2025, which will give businesses time to prepare.
23.6. We will be keeping track of updates as the Employment Rights Bill progresses through the various parliamentary stages and will keep you up to date on how the changes impact on you and your business and what you can do to get your business ready.
If you have any questions, please do not hesitate to contact us.
24.1.1. The proposals to make the minimum wage the same for all adults have not made it into the Bill.
24.1.2. There was no tightening of the ban on unpaid internships.
24.2.1. Introduced in April 2024, the one week statutory entitlement to carers leave has not been made a paid entitlement.
24.3.1. There was no inclusion of support to terminally ill employees by encouraging employers and trade unions to sign up to the Dying to Work Charter.
24.4.1. The proposed alteration to H&S guidance relating to extreme temperatures has not yet been addressed.
24.5.1. There is nothing as yet to provide a Youth Guarantee for training, work or apprenticeship opportunities for 18 to 21 year olds.
24.5.2. There are no proposed changes to the apprenticeship levy.
24.6.1. The Employment Rights Bill does not include the introduction of one status of worker. The government have stated that longer term their aim is to remove the distinction between employees and workers.
24.6.2. There is no right to a written contract for self-employed workers.
24.7.1. The Employment Rights Bill does not include the proposed collective grievance process.
24.7.2. There is no repeal of current regulation allowing agency workers to cover striking workers.
24.8.1. A new code of practice on the right to switch off, preventing 24/7 working from home, remains a proposed future reform.
24.9.1. The manifesto had included better and stronger regulation of Artificial Intelligence, which has not been included in the Employment Rights Bill.
24.9.2. Also not included is a requirement for consultation with workers prior to introducing surveillance technologies.
One of the most significant and perhaps most controversial of the Labour Government’s promises to reform employment law has been the removal of the 2 year qualifying period for bringing unfair dismissal claims. Protection from being unfairly dismissed is going to be a day one right.
Labour’s manifesto and the notes accompanying the King’s Speech made reference to this right being subject to the operation of a probationary period.
Now the Financial Times has reported that a number of Whitehall figures have told them that there will be a probationary period of six months during which employees can be dismissed more easily. Probationary periods should have “fair and transparent rules and processes”. The Government have not made an official announcement as yet nor have they provided any comment.
If what the Financial Times has reported is correct, this marks a compromise between providing businesses flexibility to terminate new hires and granting more rights and certainty for workers.
A six month probationary period aligns with what we see in most current contracts of employment. The introduction of a six month probationary period in itself is therefore not unusual. What we do not know yet is how the probationary period is going to be introduced into legislation. Will it become an additional fair reason for dismissal (in addition to conduct, capability, redundancy, contradiction of a duty or restriction or some other substantial reason)? Will it become something that an Employment Tribunal will take into account when considering the fairness of a dismissal in same way that they take into account the size and administrative resources of the employer? Will there be an ACAS Code of Practice to govern how probationary periods should be applied and managed (presumably yes to this one)? We will have to wait and see.
In early October, we are expecting to know more about this right, together with the other package of employment rights announced in the Kings Speech. We will be providing more updates as and when they happen.
The Government has confirmed that the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024. The Act, which progressed through Parliament and received Royal Assent during the Conservative Government, will introduce a duty for employers to take positive steps to prevent sexual harassment in the workplace.
The Act will require employers to take ‘reasonable steps’ to prevent sexual harassment. Such steps could include having a clear and up-to-date policy on sexual harassment, providing mandatory training for all staff, having appropriate reporting methods in place, ensuring that that there is a thorough and independent investigation into any allegations of sexual harassment, and having workplace champions to provide support to those who experience or witness sexual harassment.
In its manifesto Labour pledged to amend the duty for employers to take ‘all reasonable steps’ to stop sexual harassment before it starts, which will be more onerous for employers. The impact of this could be that if an employee brings a claim for sexual harassment, and the employer was found to have taken reasonable steps (but not all reasonable steps) the employee’s claim could be successful. This change will not take place prior to the commencement of the Act, but may be introduced in the future as part of the Government’s plans to make a suite of changes to employment law.
Employers will need to take steps ahead of the commencement date to ensure that they do not fall foul of this duty. Our Employment team will shortly be publishing a toolkit (and hosting a webinar) to assist employers with their new duty to prevent sexual harassment, so stay tuned for further updates.
The Department for Business and Trade has confirmed that the Government will not bring into force the Workers (Predictable Terms and Conditions) Act 2023. The Bill, which received Royal Assent in September 2023, was expected to come into force this month and would have provided workers with the right to request a predictable working pattern.
Instead, a spokesperson for the Department has said: “We will introduce a new right to a contract that reflects the number of hours regularly worked as part of our significant and ambitious agenda to ensure workplace rights are fit for a modern economy, empower working people and deliver economic growth.”
It seems that on this decision is in line with Labour’s plans to end one-sided flexibility and provide workers with more accurate contracts which are reflective of their actual working pattern. Instead of having various pieces of legislation, it follows that the Government would rather the issue be dealt with in one sweep and thus it will likely form part of the upcoming Employment Rights Bill. It is expected that the forthcoming legislation will confer stronger rights than the scrapped Act will have introduced.
Labour pledge to introduce legislation within the first 100 days of entering government, which would mean by 12 October 2024.
There is the well-established policy of only implementing employment law changes in October and April rather than spread across the year and so if Labour do keep to this precedent it will likely mean we won’t see changes until next Spring. Additionally, many changes may require codes of practice or substantial secondary legislation before being enacted and this means many more months of drafting and consultation.
Settlement agreements are legally binding contracts which can be used to end an employment relationship on agreed terms. They can also be used to resolve an ongoing workplace dispute and can be an effective way of ending an employment relationship. They are entirely voluntary and neither employers nor employees have to enter into them if they do not wish to do so, or they are unhappy with the proposed content.
Settlement agreements can be a very effective way of managing exits from a school, whilst also managing the risks involved.
By offering a settlement agreement to an employee you are effectively buying off the risk of a claim. A settlement agreement can also a useful way to bind exiting employees to additional provisions on confidentiality and post termination restrictions, where necessary.
Employers need to be very careful when discussing potential settlement with employees, as a poorly managed conversation can in itself trigger claims. For further information on how to conduct these conversations, please see: Guidance on holding protected conversations in the document section.
You also need to be mindful that you must comply with the Academies Financial Handbook if considering making a payment under settlement agreement, particularly if any non-contractual element exceeds £50,000.
In order for settlement agreements to be binding it is essential that the document is properly drafted and sets out the agreement between the parties accurately. A settlement agreement that does not comply with the legislative requirements is very unlikely to be enforceable.
Drafting settlement agreements is included within the fixed price for our retainer clients. For all other schools we’d be happy to undertake this work for an agreed fixed price. In order to put together the settlement agreement, we’ll need certain information from you. Please contact us and we’ll explain the information we need from you.
You should seek legal advice on this issue, as you need to be particularly careful about entering into a settlement agreement where there are potential safeguarding concerns.
This may also be a child protection issue. Depending on the circumstances, it may not be lawful to enter a settlement agreement in view of the duties under the Children Act 1989 to protect and safeguard the welfare of children.
The statutory guidance issued by the Department for Education “Keeping Children Safe In Education” states that schools must safeguard and promote the welfare of children and deals specifically with allegations made against teachers and other staff, and sets out the duties of employers and employees in this context. It also addresses issues such as confidentiality and also managing exit arrangements (including resignations and settlement agreements).
Allegations of serious misconduct against a teacher may be referred to the Teaching Regulation Agency (TRA). All employers of teaching staff in schools, including an employment or supply agency, have a legal duty to consider whether to refer a case to the TRA when they have dismissed a teacher for misconduct, or would have dismissed them had they not resigned first. Additionally all schools must make a referral to the DBS if a member of staff has harmed, or poses a risk of harm to, a child, and has therefore been removed from working (paid or unpaid) in regulated activity, or would have been removed had they not left. Referrals should be made to both the DBS and the TRA in cases where there is alleged serious teacher misconduct involving harm or risk of harm to a child.
Again, we’d recommend specific advice is taken in relation to any concerns you may have.
It is not up to the employer to “accept” an employee’s resignation, or otherwise- it is up to the individual to resign and inform the employer that this is the case. However, a resignation should be acknowledged by the employer and a letter confirming arrangements should be sent to the employee.
When accepting a resignation, schools should have regard to the Burgundy book which specifies what notice periods a school is entitled to receive from a teacher.
All schools should have a performance management policy in place, which provide consistency and fairness and so staff members understand what is expected of them. The ACAS Code of Practice must also be followed when dismissing an employee, see:
https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures
Performance Management policies are not routinely incorporated into contracts of employment and they can be produced and implemented based on your specific needs and requirements. If a local authority policy has been inherited following an academy conversion, it is possible to seek to introduce a bespoke policy which may better suit your needs. This may require consultation with the recognised trade unions and care must be taken to establish whether the existing policies are contractual. We would recommend legal advice is taken before you take any formal steps. For an example performance management policy and procedure see:
P13 Performance management policy and procedure
Schools are required to undertake annual appraisals, including annual pay progression decisions for teachers. This process will set targets and objectives for the coming year. In conjunction with regular informal meetings, these processes are helpful in identifying any training needs and areas of improvement before they become problematic.
Separate to the performance related pay process, schools may also need to tackle performance issues, such as underperformance, poor quality teaching or mistakes. If performance does not improve then it may be appropriate to use the performance management policy and procedure, which may set out a performance improvement plan with formal targets for improvement and potential formal improvement warnings if performance does not improve to a required standard. For further guidance please see:
P1: How to Guide – Managing Poor Performance.
You want your staff to perform to an acceptable standard to ensure the best possible outcomes for pupils.
You should also be aware of the guidance which Ofsted includes in paragraph 28 (page 11) of the School Inspection Handbook (2015):
Employees with less than 2 years’ do not have protection from unfair dismissal, however care should be taken to ensure your records accurately reflect their length of service.
If an employee does have less than 2 years’ service, then it is technically possible to dismiss this short serving employee for poor performance without issuing any previous formal warnings. However, you need to be mindful of whether this may cause industrial relations issues with the Trade Unions, and also mindful that there are employment claims, such as discrimination claims, which do not require the employee to have a minimum level of service, and therefore following the normal performance process may be a safer option.
Furthermore, recruiting and training staff to work in the school can be time consuming and costly so it is usually a good idea to raise the problem with the employee to give them an opportunity to address this before considering dismissal.
Our HR Protect for Schools performance management policy, P13: Performance Management Policy and Procedure applies to all employees but expressly states that employees with less than 2 years’ service can be dismissed without any previous warnings.
Normally this would involve inviting the employee to a meeting to discuss their performance, setting out your concerns and then setting a performance improvement plan (often called a “PIP”) which sets out the necessary improvements. If the required improvements are not made then formal meetings are arranged, resulting in performance improvement warnings and ultimately, if there is no/insufficient improvement, the employee may be dismissed. For a clear visual explanation of the process please refer to the following flowchart:
P2: flowchart of performance management process
The performance improvement process broadly involves:
P3: Invitation to stage 1 performance improvement meeting
P7: Letter of invitation to short serving employee potential dismissal for poor performance
P15: Guide to Conducting Formal Performance Improvement Meetings
P8: Written warning (poor performance)
P12: Termination of Employment Short Serving Employee (Poor Performance)
P4: Invitation to stage 2 performance improvement meeting
P9: Final Written Warning (Poor Performance)
P5: Invitation to stage 3 performance improvement meeting.
P10:Termination of Employment (Poor Performance)
P9: Invitation to Appeal Hearing
P16: Guide to Conducting Appeal hearing
P11: Appeal Hearing Outcome Letter
If the incompetence was wilful then it should be dealt with as misconduct, rather than a performance issue, and if this is gross misconduct then the individual can potentially be dismissed for this one-off act.
However, assuming that it was not intentional or wilful, then it will normally be difficult to dismiss for a single act of incompetence. This is because the purpose of a performance improvement policy is to support the employee to improve and to allow them time and opportunity to improve. Only if their performance does not improve can dismissal be justified. Despite this, in very rare cases dismissal can be justified if the incompetence had particularly serious or hazardous consequences, but this will need to be considered on a case by case basis. We would recommend you seek legal advice on this.
This depends on the circumstances. If there is a pattern of the employee’s performance dipping as soon as the warning period has ended, then it may be reasonable to extend the warning period. However, if the underperformance is suspected to be intentional it may be better to deal with it as misconduct.
Yes, the right to be accompanied, which applies to all employees, applies to formal performance management hearings. This is because any action which can result in a disciplinary action, including dismissal, triggers the right to be accompanied and so the employee has the right to be accompanied by either a colleague or Trade Union representative. Where the employer fails to allow the employee to be accompanied to a disciplinary meeting and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.
Allowing poor performance to carry on for a considerable time without any intervention can also make it more difficult to dismiss, and is very frustrating for the employer and fellow colleagues who work alongside them in school!
Yes. It is a common misconception that you cannot contact your employee whilst they are off sick, however schools should stay in contact with their staff to check on their wellbeing and to see if there is anything they can do to support them and facilitate a return to work.
Should the sickness absence continue then schools will need to be in touch to manage the absence through their Sickness Absence Management policy, which may also include getting in touch to organise Occupational Health appointments with the employee. See:
S10a: Letter of invitation to Keeping in Touch meeting
S22: Sickness Absence Policy and Procedure – School
S22(MAT): Sickness Absence Policy and Procedure – MAT
In this situation, if it is crucial that you speak with your employee (e.g. to progress an investigation) and it might be advisable to obtain medical advice from either their GP or Occupational Health for them to comment on the individual’s fitness to attend such a meeting.
Whilst the employee must give their consent to their employer obtaining medical advice from Occupational Health or a medical practitioner, for teachers it is a condition of continuing to receive contractual sick pay under the Burgundy Book that they agree to attend medical examinations requested by their employer whilst off sick.
You should ask whether the employee is well enough to engage in a conversation or meeting with you and if there is anything you can do to facilitate that discussion with the employee. It is going to be very difficult to progress the absence management procedure in the absence of engagement from the employee and seeking expert opinion on their ability to attend is often the best approach.
Yes. It is always good practice to arrange a return to work meeting with someone who has been off sick: whether that is a short term or long term sickness absence. That meeting gives you the opportunity to make sure that they are fit to return to work at school; whether they may need a phased return to work; whether they need any support or any adjustments making to help their ability to work and sustain attendance at school. It is also a good opportunity to find out if there are any underlying issues which you need to be aware of linked to their absence. See:
S6: Return to work interview form
S26: Guidance note – Keep in touch sickness absence meeting
A school may allow someone to return to work whilst they still have a live fit note – there is no longer a mechanism by which a GP can sign someone back as being “fit to work”. However, if your employee asks to return to work in those circumstances, you need to understand why and be satisfied that they are fit to return. Schools have a duty to protect their employee’s health and safety and it is likely to be appropriate to seek further medical advice and/or carry out a risk assessment before allowing someone to return prior to the expiration of their fit note. It the employee refuses to agree to this then schools are under no obligation to allow them to return until their fit note expires.
Yes BUT only if you have a genuine reason to do so and that reason is not because of their disability or because of something arising out of their disability and you have complied with your duty to make reasonable adjustments.
For example, you cannot dismiss someone who is unable to do their job because of their disability without having first investigated whether any reasonable adjustments could be made to enable them to do their job.
We recommend taking specialist advice in those circumstances as dismissals involving disabled employees may carry a high degree of risk. This is especially the case in schools, where the potential compensation from a disability related dismissal claim could be very high (taking into account pension loss and loss of earnings).
Consult your Sickness Absence policy in the first instance. This should give you guidance.
If you do not have a policy or if the policy is not clear, the first step you will need to take is to investigate the reason why the employee is off work; how long they are likely to continue to be off work; whether they are any steps that can be taken to enable the employee to return to work at the school; will the employee be able to return to work after medical intervention; what is the impact on the school and teaching and learning and what is the impact on other staff in the school as a result of the employee’s continuing absence?
Once you have investigated these issues which must include speaking to the employee in question and is likely to involve seeking a medical advice, you can then consider the options. This may include taking steps to support the employees return to work, setting timescales for review or possibly considering dismissal if there is no evidence that the employee will be able to return to work in the near future and no reasonable adjustments which can be made. The individual should be encouraged to participate in this process as much as possible.
Prior to dismissing an individual for long term sickness absence you should invite them to a formal meeting, warning that the outcome may be the termination of their employment. The usual rules on the employee having notice of any meeting, being able to consider all the evidence and being represented by their Trade union or a work colleague apply.
We have a range of letters to support you in this situation, please see:
S3: Letter requesting employee consent to medical report
S4: Medical consent form
S5: Letter to GP/Consultant requesting medical report
S7: Invitation to meeting to discuss medical report
S11: Invitation to long term sickness absence meeting(s)
S12: Invitation to final long term sickness absence meeting
S23: Guidance note: conducting long term sickness absence meeting(s)
S24: Guidance note: conducting final long term sickness absence meeting (potential dismissal)
Where an individual has high levels of short term sickness absence caused by a disability then schools will need to take the reason for their absence into account. You do not have to ignore disability related sickness absences altogether when managing someone’s sickness absence, however you do need to consider reasonable adjustments in allowing more absences prior to taking formal action than you would for an employee who is not disabled. Each case is different so we would recommend taking legal advice.
First, do not jump to a conclusion that being at a party means that their illness is not genuine. A person’s illness may not affect them at all times. Sometimes attending social events can be part of a person’s recovery. Of course this depends on the what the illness is.
Before dismissing someone’s illness as not being genuine, we would suggest making enquiries of the individual concerned and seeking advice from a medical expert (such as OHS) if you are not convinced by the response.
There is no right or wrong answer to this.
If you have a policy in place (as most schools will have), this should give you guidance on the process you have to follow before dismissing someone for their sickness absence. For short term absences the employer would usually be expected to issue a series of warnings before getting to the dismissal stage. The length of time absence can be sustained very much depends on the reason for their absence, the likelihood that they will be able to return to work and the impact on the business of their absence. A further consideration will be whether their sick pay entitlement under the Green Book or Burgundy Book (as applicable) has expired. See:
S1: How to Guide: managing sickness absence in schools
S2: Flowchart
Yes. You will need to investigate why that person is taking a lot of short term sickness absence to make sure that there is no underlying health condition or medical reason which you need to be aware of. You will need to evidence what the impact of their absence has had on your business.
You will also be expected to have given the employee warnings that if their attendance does not improve, it could result in their dismissal. See:
S13: Invitation to short term sickness absence meeting (Stage 1)
S14: Invitation to short term sickness absence meeting (Stage 2)
S15: Invitation to short term sickness absence meeting (Stage 3)
S25: Guidance note: conducting short term sickness absence meetings
Yes they can. It may also help with their recovery. The employee will still need to obtain your approval to take holiday and consideration will need to be given to their contract of employment and whether they are permitted to take holiday during term time, or only during school holiday periods.
A redundancy situation exists where there is a reduction or disappearance in the requirement for a particular kind of work to be performed. This can either be at a particular school, or in the organisation generally in the case of a larger body such as a multi-academy trust. This could mean that a place of work is closing entirely, or just that the employer intends to reduce headcount in a certain role as their requirements for the work performed by that role have declined.
Frequently, redundancies are made as part of a cost-cutting exercise in response to a challenging budget position or a reduction in pupil numbers. However, it is not necessary for an organisation to be losing money in order for a redundancy situation to exist. A redundancy situation can exist in an organisation which is not losing money if there is a reduction in the need for a particular role.
Employers should also be aware that non-renewal of a fixed-term contract counts as a dismissal for employment law purposes and that it will normally be by reason of redundancy. Fixed-term employees with more than two years’ service may therefore be entitled to a statutory redundant payment if their fixed-term contract is not renewed, and employers should still consider how to follow a fair process in relation to the end of this contract (for example exploring with the employee whether there are any alternative vacancies which may be of interest to them).
Firstly, check your policies and procedures or any local agreements to see if there is any requirement to make enhanced redundancy payments. Subject to that, statutory redundancy payments are calculated based on a formula which uses length of service (capped at 20 years), age and capped weekly pay. Employees need a minimum of two years’ continuous employment to be entitled. There is a useful Government calculator for working out redundancy payments, which can be accessed here:
https://www.gov.uk/calculate-your-redundancy-pay.
As we say however, some schools may have ‘enhanced’ redundancy schemes (which may be inherited from the local authority), where employees’ redundancy payments are calculated using a more generous formula, so best to double check this.
Employees who are being made redundant are also entitled to be given notice in accordance with their contract of employment (or statutory minimum notice, whichever is higher). For teachers, this will be the period of notice set out in the Burgundy Book – it is therefore important that the timing of any proposed restructures involving teaching roles are planned with these notice periods in mind.
An employee can be required to work during this notice period as usual, although they have the right to a reasonable amount of paid time off to look for alternative employment (for example to attend job interviews). In practice, some schools prefer to make a payment in lieu of notice in these circumstances in line with the employee’s contract of employment.
Finally, be mindful that in relation to support staff employees who are members of the LGPS there may be a requirement to pay a “pension strain cost” to the LGPS if they are over 55 years and made redundant. This payment catch schools off guard and can be particularly expensive.
A ‘selection pool’ is the group of employees who may be selected for any particular redundancy. For example, if a school has two cleaners and proposes to reduce that number to one, the selection pool would normally be the two cleaners.
If an employee is in a stand-alone role, they will generally be in a ‘pool of one’ on the basis that they are the only person who does the role which is at risk of redundancy. In this case, there is no need for any selection process, as there is only one employee potentially affected.
Schools will often be asked to consider ‘bumping’ by employees who are at risk of redundancy. This means considering whether it would be reasonable to move the ‘at risk’ employee into another role in the business and make that post-holder redundant instead. This is a particularly tricky area which needs to be considered carefully if it arises. Whether it is potentially appropriate will generally depend on factors such as the level of similarity between the roles, the respective levels of seniority, whether there has been any cross-over or interchange between the roles previously and the respective length of service of the employees in question.
Identifying the correct selection pool is vital, as it is one of the aspects of a redundancy process which an Employment Tribunal will scrutinise. Each potential redundancy situation should be considered on its own merits when it comes to devising the selection pool. If the employee raises any dispute around the selection pool which has been used at a redundancy consultation meeting, you must take time to consider this carefully. If you disagree with the employee’s view, you should give them a reasoned explanation as to why you disagree as part of the consultation process.
Once you have identified the appropriate selection pool (see above), you need to consider whether selection from within the pool is required. If there is a pool of one or if you are proposing to remove a role entirely, then you won’t need to do a scoring exercise as all employees in the pool will be potentially at risk of redundancy. Schools may also wish to ask whether any employees within the pool wish to volunteer for redundancy, in which case there may not be a need to make compulsory redundancies.
If you do need to carry out a selection exercise to determine which of the employees in the pool are placed at risk of redundancy, then you may need to use a form of scoring matrix. A scoring matrix should focus on objective scoring criteria which can be measured against statistics, records and documents. Organisations may have a redundancy policy which contains a selection matrix to be used in redundancy processes.
For an example selection matrix please see:
R13: Example selection matrix
This depends on whether the employee is reasonably capable of performing any vacancy which exists. If they do not have the necessary skills or experience, it will not be suitable and therefore you do not need to offer it. An example of this would be the potential redundancy of an English teacher, with a possible vacancy of a French teacher. If the employee at risk of redundancy cannot teach (or presumably speak) French, then this role doesn’t need to be offered as an alternative to redundancy. However, if they are capable of performing the vacancy, they are entitled to be offered it, in preference to any external candidate, or any internal candidate whose role is not at risk. If there is more than one redundant employee who wishes to take the vacancy, they should all be considered for this. You can either use a scoring matrix or a competitive interview process to select the successful candidate.
Where an employee is offered (and accepts) a vacancy, there is a statutory four-week trial period where both parties can assess whether the role is suitable. The employee can choose to resign within this trial period and claim a statutory redundancy payment if they wish.
Where an employee unreasonably refuses an offer of suitable alternative employment, they are not entitled to a statutory redundancy payment. However, case law is very strict on when a school can withhold a redundancy payment on this basis, and specific advice should be sought before doing so.
The statutory right to be accompanied by a colleague or a trade union representative does not apply to redundancy consultation meetings. However, employers generally allow this as a Tribunal might consider that the consultation process is unfair if the employee is not allowed to bring a companion.
This is particularly true in an education setting, where is it often custom and practice for the Trade Unions to be closely involved in any proposal and consultation process.
The starting point is to check whether the school has a redundancy policy in place. This may have been agreed in conjunction with the recognised trade unions, and will typically involve a degree of consultation with the relevant trade unions at the outset of the process. If there is a policy in place, the school should follow this or it would likely be considered unfair.
If there is no redundancy policy, the redundancy process which schools should generally follow is:
R13: Example selection matrix
R3: At risk letter (no selection)
R4: At risk letter (with selection)
R5: Invitation to further consultation meeting(s)
R15: Guidance on conducting first redundancy consultation meeting
R16: Guidance on conducting subsequent redundancy consultation meeting(s)
R9: Confirmation of alternative employment
R8: Confirmation of redundancy.
R6: Invitation to appeal meeting
R9: Appeal outcome letter
R17: Guidance on conducting redundancy appeal meeting
For further guidance on the formal process employers need to follow see:
R2: Flowchart – Redundancy.
At the point that an employee is placed ‘at risk’ of redundancy, it is vital to remember that it is still a proposal. No matter how unlikely the school may consider it is that the redundancy can be avoided, they need to approach the consultation with an open mind as to whether the redundancy could be avoided. If the decision to make the employee redundant has been conclusively determined before consultation, this is very likely to make the dismissal unfair.
It may sometimes be tempting for a school to rush through the consultation process, thinking that the outcome is obvious. However, this runs the risk of the dismissal being found to be unfair if the employee isn’t given a proper opportunity to ask questions and put forward counter-proposals. Where employees have alternative suggestions, employers should give careful though to these and respond properly, even if they seem obviously unworkable to the employer.
The legal position and practicalities around redundancies and employees on maternity leave are tricky to manage and cause problems for many schools. Key points to be aware of are:
The collective consultation obligations apply where an employer is proposing to make 20 or more redundancy dismissals at an establishment in any 90-day period. The consultation requirements are strict and there are severe penalties where an employer doesn’t fully comply.
That said, any redundancy policies which have been agreed with recognised trade unions will typically require some collective consultation with the relevant unions at the outset of the process, even where there are fewer than 20 proposed redundancies.
For more information on collective consultation, please refer to our
FAQs on Collective Consultation.
For further guidance on redundancies please see:
R2: Flowchart: redundancy and R1: How to Guide: Redundancy
Some conduct issues can be dealt with in an informal way by speaking to the employee concerned and making them aware that their conduct is not acceptable. However, where the informal stage has not resolved the issue, or in more serious matters, you will need to take formal action. Formal action requires that a proper process is followed by the school, and if a proper process is not followed then the action is unlikely to be fair and may result in an Employment Tribunal claim or Trade Union action.
For further guidance on the formal process employers need to follow see: Flowchart: Disciplinary and Dismissal
It is correct that short serving employees (i.e. those with less than 2 years’ service at your school) do not have protection from unfair dismissal in the same way that those employees with 2 years’ service. However, this does not mean that short serving employees can be dismissed without risk in all circumstances.
Certain claims, including for example discrimination, health and safety related dismissals and whistleblowing (to name but a few) do not have a minimum service requirement.
For a full list of claims someone can bring if they have less than 2 years’ service see: Claims: no qualifying service requirement
Whilst it is not a mandatory requirement for schools to have a disciplinary policy in place, most will of course already have one. It can be extremely helpful when dealing with disciplinary matters to have a good disciplinary policy which sets out what is expected of the employee and employer in these situations. It is crucial that all disciplinary policies incorporate the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures as a minimum:
https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html
As a side note, neither the Burgundy Book nor the Green Book contain contractual disciplinary procedures. Disciplinary policies and procedures. It is common for academies or multi-academy trusts to seek to introduce their own disciplinary policy after they become an Academy, in place of the existing local authority policy. This may require consultation with the recognised trade unions and care must be taken to establish whether the existing disciplinary procedures are contractual – so legal advice should be taken.
For a compliant school specific disciplinary policy please see:
D20: Disciplinary Policy and Procedure – school
D20(MAT): Disciplinary Policy and Procedure – MAT
D21: Staff code of conduct – school
D21(MAT): Staff code of conduct – MAT
No. Where allegations of gross misconduct arise these should be properly investigated and the individual taken through a fair disciplinary process. If this does not happen then there is a real risk that what would have been a fair dismissal is turned into an unfair dismissal by the lack of process followed. This may mean a school being on the wrong end of an unfair dismissal claim in the Employment Tribunal, even though the individual had committed gross misconduct.
For all disciplinary matters (not just instances of gross misconduct) it is essential that a fair and proper process is followed. The disciplinary process broadly involves:
D22: Guide to conducting investigation meetings
D4: Invitation to investigation meeting
D5: Invitation to investigation meeting (witnesses)
D6: Invitation to disciplinary hearing: potential written warning
D7: Invitation to disciplinary hearing: potential final written warning
D8: Invitation to disciplinary hearing: potential dismissal following previous warnings
D9: Invitation to disciplinary meeting: potential dismissal for gross misconduct
D23: Guide to conducting disciplinary meetings
D12: Informal Management Letter of Advice
D13: Written warning
D14: Final written warning
D15: Dismissal with previous disciplinary warnings
D16: Letter to confirm dismissal – short serving employee
D17: Gross misconduct dismissal
D18: Letter to confirm no further action
D10: Invitation to appeal meeting
D24: Guide to conducting appeal meeting
D19: Appeal outcome letter
All employees are entitled to be accompanied to a disciplinary hearing, that may result in disciplinary action (including dismissal) being taken against them, by either a colleague or Trade Union representative. Where a school fails to allow the employee to be accompanied to a disciplinary hearing and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.
As a side note, there is no automatic legal right for an employee to be accompanied to a fact finding / investigation meeting. However, most schools allow this and your policies and procedures may provide the employee with this right. If so, you may wish to amend your policy, so that this right is given “provided there is no unreasonable delay”.
Often schools are found by Employment Tribunals to have investigated only the facts in support of the allegations, not those which support the employee. A fair dismissal needs to be balanced and based on a reasonable investigation and if the employer cannot demonstrate that this has taken place then the dismissal will be unfair.
The allegations as set out in the letter of invitation to a disciplinary meeting are of crucial importance. It is a principle of natural justice that an individual must be aware of the allegations against them in order to be able to properly defend themselves. Make sure that the allegations in the letter of invitation properly capture, in plain English, what it is they are accused of doing, when this is alleged to have happened, and where this happened.
Where an individual may be dismissed following a disciplinary hearing they need to be warned in advance that this is a potential outcome. Informing someone that this is the case means that they cannot argue at a later point that they did not fully understand the seriousness of the matter, or the potential outcome of the disciplinary hearing.
Clearly, each case turns on its own facts, and there may be reasons why a school chooses to impose a lesser disciplinary sanction on a particular employee than it does on another. However, schools need to be very wary of being capable of justifying any differences in treatment. If the decision is not capable of justification then it may give rise to an unfair dismissal claim, and potentially some form of discrimination claim if the individual can show that the difference in treatment can be explained by their protected characteristic(s).
A dismissal which is unfair, either because the reason for dismissal is not fair, or the incorrect procedure was followed, can be expensive. Claims for unfair dismissal are very common in the Employment Tribunal and schools can be awarded as much as 12 months’ gross salary in compensation, plus a basic award calculated on their age and length of service. Failure to follow the Acas Code of Practice can also result in a 25% uplift in any compensation awarded. These awards relate to ordinary unfair dismissal claims only; other claims, such as whistleblowing or discrimination, are uncapped and can attract much higher potential awards of compensation.
For further guidance on the appropriate disciplinary/dismissal process please see:
Flowchart: disciplinary and dismissal and D1: How to Guide: Disciplinary and Dismissal
Yes, very much so, and taking specific advice is recommended.
In maintained schools, responsibility for decisions relating to appointments are set out in the School Staffing Regulations.
Specifically:
In community, voluntary controlled, community special and maintained nursery schools, the local authority (as the employer) is then responsible for actually making the appointment.
For maintained schools, the School Staffing Regulation also prescribe the process, which varies depending on whether you are recruiting a headteacher or deputy headteacher, other teachers or support staff.
On the other hand, the proprietor of an independent school or academy is responsible for appointing staff in the same way in which any employer may appoint staff, and the process, which can usually be found in an academy’s articles of association, can be less prescribed.
Schools which properly document the recruitment process to establish a paper trail will be better placed to demonstrate compliance with the School Staffing Regulations (where they apply) and consideration of the public sector equality duty.
More generally, the paper trail can help justify decisions taken, to show that a selection decision was based on objective evidence of an applicant’s ability to do the job (rather than on assumptions or prejudices) and to show that they took reasonably practicable steps to prevent unlawful discrimination or harassment.
Protection from discrimination applies to job applicants in the same way as it does actual employees so, from a risk point of view it is essential that employers avoid any form of discrimination during the recruitment and appointment process, even if this is done advertently.
For further information on discrimination see:
DIS1 How to Guide: Avoiding Discrimination
Before advertising a vacancy, a written job description for the role should be compiled. The job description should cover:
When compiling a job description, ensure that an appropriate job title is used that does not show any premeditated bias and that the job is accurately described.
You may also wish to prepare a person specification detailing the experience, know-how and qualifications, skills, abilities and behavioural attributes necessary to perform the duties in the job description. Criteria in the job description or specification must not be discriminatory and employers should be able to justify any necessary or desirable criteria against the job in question.
It is generally considered best equal opportunities practice to advertise all vacancies externally as this will ensure that as wide a pool of candidates as possible is reached. This will not always be appropriate however, for example, in a redundancy situation, where an employer is obliged to consider what alternative employment is available within the organisation for employees who are at risk of redundancy.
For further information on redundancy see:
R1 – How to Guide – Redundancy.
You should consider the format in which applications should be submitted. Adopting a standardised process, whether through using an application form or requesting CVs is recommended so that applicants can compete on equal terms and to help the School show that applicants have been assessed objectively.
Be prepared to react where reasonable adjustments need to be made for disabled candidates, e.g. providing information in large print, braille etc. so they are not disadvantaged in the recruitment process. For further information on reasonable adjustments see
DIS3 – Guidance – Disability Discrimination.
Firstly, you should consider whether the School Staffing Regulations apply to you and, if they do, you should ensure that the prescribed process set out is followed.
Independent schools and academies should also check their articles to determine what process they should follow (if prescribed).
Generally, there are a number of processes available to you when assessing and selecting the ideal candidate for the job advertised for example, shortlisting, selection tests, assessment centres and interviews.
There are however important nuances in the recruitment process within the education sector, such as where a vacancy is for a headteacher or deputy headteacher. In that situation, the board of a maintained school will need to put in place a selection panel of at least three governors – one of whom must have completed safer recruitment training – to select candidates for interview (and, for most types of maintained schools, notify the local authority of the names of the candidates), interview applicants and, if the interviews are successful, recommend a candidate for appointment as headteacher to the board of governors. This is also good practice in academies, and academies should review their articles of association to determine the process, including the size of any selection panel, that might be prescribed by their articles.
All selection processes undertaken must be fair, consistent and result in the appointment of the best person for the job.
You should ensure that, as far as possible, arrangements for holding tests or interviews, or using assessment centres, do not put any candidates at a disadvantage in connection with a protected characteristic. For example, where the dates or times coincide with religious festivals.
Schools are not required to make changes to recruitment processes in anticipation of applications from disabled people. However, if a School knows, or could be reasonably expected to know that a particular disabled person is, or may be, applying for a role and is likely to be substantially disadvantaged by the premises or arrangements, then reasonable adjustments must be made. For example, if an applicant is a wheelchair user you should make sure that the premises where the interview is being held are accessible in order to remove any disadvantage that individual may suffer because of their disability.
Schools should also consider whether any tests could be indirectly discriminatory.
All documents collected in the recruitment process which include the personal data of applicants must be processed in accordance with data protection legislation, in the same way as is necessary for the personal data of current employees within the School.
Job applicants should be made aware of how the School will process the information they supply, for example via a statement in the job advert and how long it will be held for. For a template privacy notice, please see:
REC11: GDPR candidate privacy notice.
For further details on handling data during the recruitment process, please see:
REC6: Guidance: retention and erasure of employment records.
Generally, employers are not permitted to ask about the health of a job applicant before offering a job to them, except in a limited number of situations.
When a job offer has been made, it can be made conditional on satisfactory health checks, but schools must not discriminate against job applicants having received the results of such checks. Health checks would usually only be appropriate where relevant to the job or where reasonable adjustments need to be considered for disabled applicants.
However, as a School, you need to verify an applicant’s mental and physical fitness for the role before appointing them. A job applicant can be asked relevant questions about disability and health in order to establish whether they have the physical and mental capacity for the specific role, but this should be done with caution, to reduce the risk of a claim of discrimination.
For more information on pre-employment health questionnaires, please see:
REC3: Guidance: pre-employment health questionnaires.
After identifying the applicant who is to be offered a job, a written job offer should be sent to the person, see:
You should ensure that offer letter is consistent with the contract of employment subsequently provided. You should also make the job offer conditional on matters such as references, DBS checks, proof of right to work and qualifications.
References should not be obtained until after a selection decision has been reached. This is to ensure that the selection decision is based strictly on objective criteria and is not influenced by other factors, such as potentially subjective judgments about a candidate by referees. It is also good practice to send a referee copies of the job description and person specification, requesting evidence of the applicant’s ability to meet the specific requirements of the job.
The information requested in a reference can vary. It is common to ask for information such as the applicant’s dates of employment, current role and past roles, salary and disciplinary record. However, employers may be unwilling to give all of this information and some will have a policy of only confirming factual information such as dates of employment and role.
References should always be obtained from the candidate’s current employer. Where a candidate is not currently employed, verification of their most recent period of employment and reasons for leaving should be obtained from the school, college, local authority or organisation at which they were employed.
Any information about past disciplinary action or allegations that are disclosed should be considered carefully when assessing the applicant’s suitability for the post.
For full guidance on receiving references, see:
REC4: Guidance: providing and receiving employment references.
Generally (aside from some very specific exceptions) there is no legal obligation on schools to provide a reference for a current or former employee. However, a consistent approach (whether or not to give references and what to include in them) is recommended, particularly to avoid allegations of discrimination.
If a reference is provided, the school owes a duty to take reasonable care to ensure that it is true, accurate and fair and does not give a misleading impression. Failure to do so could give rise to claims against the reference provider.
All schools have a duty to prevent illegal working by carrying out prescribed document checks on candidates before employing them to ensure they have the right to work in the UK.
You are expected to keep a record that they have been carried out and repeat them in respect of any individuals who have time-limited permission to work in the UK, prior to the expiration of that permission.
It is a criminal offence if a school employs an illegal worker and knows, or has reasonable cause to believe, that the person has no right to do the work in question in the UK. It is a civil offence if you employ someone who does not have the right to carry out the work in question, which can be punished by a penalty of up to £20,000 for each individual who does not have the right to work.
A school will be excused from paying a civil penalty if they are able to show that they complied with the prescribed right to work checks and retained records to prove that those checks were completed correctly. For further information, see:
REC5: Guidance: right to work checks.
In order to avoid claims for discrimination, Schools should carry out the same checks on all prospective employees and not just those who appear to be non-British.
Part three of the Department for Education’s statutory guidance for schools and colleges, “Keeping Children Safe in Education” addresses “Safer recruitment” in the education setting.
Additional to your usual right to work checks, when appointing new staff, schools and colleges must usually:
Schools and colleges must maintain a single central record of pre-appointment checks on all staff, including teacher trainees on salaried routes, agency and third party supply staff who work at the school and, (for independent schools), all members of the proprietor body. In the case of academies and free schools, pre-appointment checks need to be maintained on a single central record for members and trustees of the academy trust.
For further information on recruitment see:
REC1 How to Guide: Recruitment
No, but all employees and workers must be given a statement of their terms and conditions on or before the employee’s first day of work. This statement, also known as a ‘section 1 statement’, must contain the information specified by section 1 of the Employment Rights Act 1996, including the names of the parties, the date the employment started etc. Further details of what needs to be included in the statement can be found at: https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars
Failure to provide a complete and accurate section 1 statement can permit an employee to ask a tribunal to determine what the appropriate term and conditions and, in some circumstances, permit an employee to issue a claim worth up to 4 weeks’ wages.
We recommend that the section 1 statement is provided by way of a written contract of employment as the contract can include additional terms. These terms can provide clarity for the parties and provide additional rights and responsibilities which are relevant to the particular role. For example, a contract for a senior employee would be different to a junior employee as it may contain a company car clause, post-employment restrictions etc. which are less likely to be needed for a junior employee.
An important consideration for Schools is whether the section 1 statement or contract of employment should incorporate collective agreements (such as the Burgundy Book and School Teachers Pay and Conditions documents for teaching staff and the Green Book for support staff).
Commonly these collective agreements are incorporated and should therefore be taken in to account when considering the contractual rights of school staff.
For further guidance on contracts of employment see:
C1: How to Guide: Contracts of employment.
You will need to consider the employee’s seniority, whether their role is permanent, full-time or part-time, whole time or term time only, or whether their role is based on zero hours. You will also need to consider how they will be engaged e.g. as an employee worker, apprentice or consultant and whether (although unlikely in the education sector) you require the staff member to be bound by any post-employment restrictions.
For a full list of the types of contracts see: C2: Which contract to use?
The full list of contracts which are available to HR Protect clients is available below:
C3: Contract of employment: standard
C4: Contract of employment: part time
C5: Contract of employment: fixed term
C6: Contract of employment: term time only
C7: Contract of employment: senior (with restrictions)
C8: Contract of employment: apprenticeship agreement (English approved standard)
C9: Contract of employment: apprenticeship agreement (Framework)
C10: Contract of employment: casual worker agreement (zero hours)
C11: Consultancy agreement (individual): for use where there are Group Companies
C11a: Consultancy agreement (individual): for use where there are no Group Companies
C12: Consultancy agreement (limited company): for use where there are Group Companies
C12a: Consultancy agreement (limited company): for use where there are no Group Companies
C13: Contract Questionnaire
Yes, zero hour contracts are still permitted but since May 2015 exclusivity clauses i.e. clauses which prevent a worker from working for someone else, have been prohibited and rendered unenforceable. A legally compliant zero hours contract can be found at:
C10: Contract of employment: casual worker agreement (zero hours)
Once the terms of employment have been agreed they are legally binding and can only be changed in limited circumstances. Often the easiest way to change an employee’s terms is to get them to agree to the change. Where the change is beneficial, for example, a pay increase, the employee will be happy to agree to the change. However, sometimes a School may seek changes that the employee is not happy with. In those circumstances, the School may be able to rely on the contract if it permits the change or if necessary, or it may have to go through a formal process of consultation, potentially on a collective basis with trade unions, or make a unilateral change. Both of these latter options bring risk and you should speak to your legal advisor in these circumstances. For further information please see:
C1: How to Guide: Contracts of employment
The purpose of an appraisal is to:
Appraisals provide an opportunity for employees to learn by reflection and take ownership by proactively evaluating their performance. There should be no surprises for the employee i.e. if there are any concerns with an employee’s performance, these should be brought to attention as they arise, and not held back until the employee’s next appraisal.
Outside of the education sector, no, it is not a legal obligation to carry out an appraisal, but given the clear benefits to doing so set out above, failing to do so is a missed opportunity and may lead to issues building up and not being resolved.
In the education sector, appraisal arrangements are set out in the Education (School Teachers’ Appraisal) (England) Regulations 2012 (which are often referred to as the Appraisal Regulations). They set out the principles that apply to teachers in all maintained schools and centrally employed (or unattached) teachers employed by a local authority where they are employed for more than one term.
Whilst the Appraisal Regulations do not directly apply to Academies, it is recommended that Academies follow the appraisal regulations even though they are not legally required to, particularly given that most Academies’ contracts of employment incorporate the School Teachers’ pay and conditions document, which link appraisals of individuals subject to the Appraisal Regulations to decisions on pay progression.
Schools are well advised to review their appraisal policy against the Department for Education “Teacher appraisal and capability: A model policy for schools” and ensure that their own appraisal policies reflect the key steps set out in that document.
For support staff, to whom the Appraisal Regulations do not apply, similar principles for conducting appraisals are also recommended.
There are no legal or technical requirements on how an appraisal should be conducted. An appraisal can be kept informal, and approached as a productive conversation between employer/employee. There is no set invite requirement to invite an employee to an appraisal – an email with a diary appointment will suffice.
An appraisal should be a two-way conversation; an opportunity for the School to feed back on the employee’s performance, but also an opportunity for the employee to feed back to the School with any issues they may have that they wish to raise.
There is no set time frame or frequency for conducting appraisals. Most Schools use 12 monthly appraisals, which is the appraisal period set out in the Department for Education “Teacher appraisal and capability: A model policy for schools.”
Regardless of how often appraisals are conducted, it is important to bear in mind that regular appraisals are only one part of the performance management process. In particular if appraisals are conducted on a 12 monthly basis you should make sure you have a mechanism to discuss performance issues as they arise, such as regular team or one to one meetings, as appropriate.
It is still important to plan and prepare for an appraisal. This could include reviewing training records, feedback forms/verbal feedback, and any other criteria used within your school to measure performance. It is also useful to have an understanding of the overall performance of the team the employee being appraised works in, in order to be able to discuss how the employee’s performance impacts on the team’s success as a whole.
Planning before an appraisal will enable the appraiser to go in with feedback on their expectations and standards, be able to suggest areas for improvement, and provide the employee with an effective appraisal meeting.
Appraisers in the school sector should remember that, with the exception of those who are qualified teachers by virtue of holding and maintaining Qualified Teacher Learning and Skills (QTLS) status, all teachers must be assessed against the set of standards contained in the document called “Teachers’ Standards” published in July 2011. The Teachers’ Standards define the minimum level of practice for trainees and teachers to achieve qualified teacher status. For teachers who are qualified teachers by virtue of holding QTLS status, it is for the governance board or headteacher to decide which standards are most appropriate.
An appraisal should usually be conducted by the employee’s immediate supervisor or line manager, as directed by the headteacher, whereas the Headteacher, Chief Executive Officer of the trust and other senior trust staff might be appraised by the governance board as per the School’s or Trust’s scheme of delegation.
Notes should be taken during the appraisal as these may need to be referred to at a later point.
An effective appraisal should be conducted in 3 parts:
Using the information collated in preparation for the meeting, the appraiser should feed back to the employee on their performance against objectives set before or as soon as practicable after the start of each appraisal period. For teachers to whom the Appraisal Regulations apply, these objectives ought to be recorded in the appraisal report produced as part of the teacher’s preceding annual assessment.
This can often be an emotive part of the meeting, particularly if it is not all positive. Appraisers should remain calm and measured and provide measurable information/examples to the employee in relation to their performance.
Appraisers should raise both positive and negative feedback in the meeting. It can be easy for appraisers to focus on concerns in an employee’s performance, but if there is something positive (e.g. an achievement, good feedback from a pupil, parent or colleague) this should be raised and acknowledged to the employee.
Inform the employee of what is expected of them in the coming months in terms of individual objectives which, if achieved, will amount to them contributing to the school’s plans for improving the school’s educational provision and performance and improving the education of pupils at the school.
Appraisers should ensure the employee understands any strategic/operational/business changes that may be happening that may impact their work.
Appraisers should also set out clearly the employee’s individual objectives that they would like them to focus on to improve their performance. and set a timescale within which they would reasonably expect the employee to meet those individual objectives.
Appraisers should explain how performance will be reviewed throughout the appraisal period (for example, by classroom observations, carried out in a supportive fashion and not to add to the teacher’s workload, which ought to be documented). They should also explain, and be committed to following through on, that feedback will be given soon after those observations.
The appraiser should be prepared to discuss any personal development areas that an employee may suggest themselves. If the appraiser agrees with what the employee has suggested, the appraiser should include them on the appraisal form and agree a timescale with the employee within which they reasonably expect the development to be made.
Once the employee fully understands how they are performing and what expectations have been set, the appraiser should then make suggestions as to how the employee can actually meet those objectives/targets.
The appraiser should be open to suggestions by the employee, and open to accepting that some input may be required by the School to help the employee meet their targets (e.g. providing more training, more individual support).
Appraisals are often a good opportunity to discuss long term career goals with the employee. By discussing with employees what their career aspirations are this can make them feel more engaged and more likely to stay with the business in the longer term.
Offer the employee the opportunity to raise any other issues or discussion points they wish to make. The appraiser should listen to these and deal with them in an appropriate manner. This may require a follow up meeting, depending on what is raised.
Summarise the plan of action/next steps.
It is important to keep a clear record of the appraisal, and for teachers to whom the Appraisal Regulations apply this is often done in the format on appraisal report which ought to be received by the teacher by 31 October or, where the appraise is a Headteacher, by 31 December.
A copy should be provided to the employee and a copy should be kept on the employee’s file.
A key reason why it is crucially important to monitor performance and tackle it when it falls below what is required is that this is the best way to support the employee to make the necessary improvements before it becomes a more serious issue.
However, if the employee does not/cannot make the necessary improvements then the next stage would be a formal performance management process, see FAQ: Performance management.
For further information see:
APR1: How to Guide: conducting appraisals
APR2: Example employee appraisal form
Collective consultation obligations apply where an employer is proposing to dismiss 20 or more employees as redundant at any one establishment within a 90-day period.
For Schools that are, for example, part of a wider multi-academy trust, the question as to whether collective consultation obligations apply can often turn on whether the proposal is at “one establishment.”
It is also important to note that the definition of a redundancy dismissal for these purposes is wider than the test of whether the employee would qualify for a statutory redundancy payment. For example, it includes the following circumstances:
Schools are well advised to check their Redundancy / Managing Change Policies which have usually been negotiated with recognised trade unions at the outset of a redundancy or restructure process. This is because it is often the case that, even where such policies and procedures are non-contractual and the proposal is to dismiss fewer than 20 or more employees as redundant, the School has committed to consult (albeit outside of the collective consultation regime) with trade unions about potential redundancies or restructures.
In these circumstances best practise, with a view to maintaining strong union relations, is to follow the steps set out below. However correspondence to recognised trade unions should make it clear that it is the School’s understanding that the requirement to collectively consult with recognised trade unions does not arise because there are less than 20 staff potentially affected by the proposal.
Schools invariably recognise trade unions for the purposes of collective consultation and, therefore, must consult with those trade unions about the proposed redundancy dismissals.
In rare situations, where there is a standard body of representatives in respect of the workforce (such as a Works Council), the School should consult with them in the absence of a recognised trade union – but only if that body has authority to consult on behalf of the workforce about collective redundancies. Not all representative bodies can be said to have authority to consult on behalf of the workforce in these circumstances.
Where there is no trade union or appropriate standing body of representatives, the School must arrange to hold elections for employee representatives. Similarly where there is a trade union or standing body which only represents a part of the workforce which is affected, the School will need to arrange employee representative elections to cover the remaining workforce.
There are two key aspects to collective consultation: providing information to the appropriate representatives, and consulting about the proposed redundancies.
There is a prescribed list of information which is required to be given to the representatives at the very outset of the process. This requires Schools to give extensive details of the proposals, the roles involved and the process which they intend to follow. This is generally given in a ‘section 188’ letter which should be sent to the head office of all recognised trade unions whose members are affected by the proposal. Representatives will often request further information during the consultation process, and Schools will generally be expected to provide this to enable meaningful consultation to take place unless there is a very good reason for not providing it.
The consultation aspect generally takes the form of several meetings between the School and the trade union representatives, who must also be given an opportunity to pass information to the individuals they represent. The consultation should cover a broad range of issues, such as whether the redundancies can be avoided or reduced in number, the applicable selection criteria to be used and the make-up of the applicable pools.
Collective consultation does not replace the need for individual consultation. Once the consultation process with the representatives has come to an end the School then needs to conduct individual consultation meetings with those individuals at risk prior to issuing notice of redundancy.
No – this is a common misconception.
The law says that no redundancy dismissals can take effect within 30 days of the beginning of collective consultation (rising to 45 days where there are 100+ proposed redundancies). It is possible to conclude collective consultation, and individual consultation, provided that no notices of dismissal expire during this time.
However, Schools should also guard against being seen to rush through the process and avoid an argument that they have not properly consulted and/or that some or all of the redundancy dismissals are unfair.
The main risk is that Schools will be ordered to pay a ‘protective award’ if they are found not to have complied with their collective consultation obligations by an Employment Tribunal. Tribunals can make a ‘protective award’ of 90 days’ pay in respect of each employee, and this is not subject to the cap on a ‘week’s pay’ as other areas of employment law.
Furthermore, a failure to properly collectively consult may also give rise to a claim that one or more of the redundancy dismissals were not fair, and redundant employees may bring unfair dismissal claims on that basis.
Schools are also required to file a HR1 form at the outset of the process with the Government, providing certain details of the proposed redundancies. Failure to do so can actually constitute a criminal offence!
The basic principle of consultation is that it is approached with an open-mind and without any final decisions made regarding the redundancies. If trade unions can show that the School had already decided to proceed with the redundancies before consultation, this will almost certainly render any subsequent consultation process a sham. The duty to consult in a collective consultation situation generally arises much earlier than in a “standard” redundancy- the obligation arises at the point of the “proposal” to dismiss.
Whilst Schools will almost always inform and consult with recognised trade unions (and therefore not need to go through the process of electing appropriate representatives), most UK employers outside of the education sector, are not familiar with arranging representative elections, and many are therefore not sure where to start. Employers have some discretion over employee representative elections (such as how many representatives are required), but there are a number of strict rules and overriding principles which they must follow.
Some of the information required to be provided by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is basic, such as the total number of the proposed redundancies and the specific roles which are at risk.
However, not all of the information is obvious by any stretch – for example, Schools must provide details of their use of agency workers anywhere in the business. Although this may seem unimportant, a failure to provide this information is technically a breach of collective consultation obligations.
Collective consultation creates an extra layer of protection for employees; it does not remove their existing protection against unfair dismissal. Schools must still therefore consult with individual employees who remain at risk of redundancy following collective consultation, or risk unfair dismissal claims on the basis that they have not followed a fair procedure.
We have put together a toolkit of documents in order to assist you with this process, which are available for purchase and include:
For further information on the toolkit please contact us
Family leave and rights have gradually been extended over the years, including most recently the addition of parental bereavement rights in 2020. Now employees have a number of rights which relate to family leave. Broadly speaking, these are: adoption leave and pay; pregnancy and maternity leave, pay and rights; paternity leave and pay; parental leave; shared parental leave; time off for dependents and; parental bereavement leave. In addition, all employees are able to request flexible working after 26 weeks’ continuous employment.
HR Protect customers can access detailed guidance, template letters and policies. For a summary of the family friendly rights please see: How to guide: Family friendly rights overview.
Both are entitled to up to 52 weeks of leave and 39 weeks of statutory pay and to take time off for adoption or ante-natal appointments. See AD7: Time Off for Adoption Appointments Policy and MAT11: Time Off for Antenatal Appointments Policy. Similarly, once the leave has ended, both are entitled to return to the same job or a suitable alternative and protected from dismissal or detriment due to having taking adoption/maternity leave. Employers are entitled to minimum notice from their employees if they intend to take adoption or maternity leave.
However, employers have additional health and safety obligations in relation to pregnant employees and not all adoptions are protected under the law. For example, some private adoptions are not covered by the legislation. See AD1: How to guide – Adoption for details and MAT1: How to guide – Pregnancy and maternity for details.
To qualify for statutory maternity pay, an employee must notify their employer of their pregnancy by no later than 15 weeks before they are due to give birth. The employee should also provide a certificate from a doctor or midwife. This is usually done using a MAT B1 form. Full details can be found in MAT10 – Maternity Policy.
Yes, employees on maternity leave are permitted to return to work for up to 10 days without ending their maternity leave. These days are known as ‘keeping in touch’ (KIT) days. Both the school and the employee must agree for a KIT day to be taken. For a letter inviting an employee to a KIT day, please see: MAT7: Request for employee to attend a KIT day
Paternity leave entitles an employee to a maximum of 2 weeks’ leave within the first 56 days following the birth/placement for adoption of their child and is available to the child’s father or spouse of the mother so that they can care for their child. Statutory paternity pay is available for a maximum of 2 weeks.
Further details of paternity leave can be found at PAT1: How to guidance and PAT3: Paternity Policy.
In contrast, parental leave allows a parent to take up to 18 weeks’ unpaid leave to care for their child.
Minimum service, notice and evidential requirements must be met for both types of leave.
Yes. All employees, regardless of their length of service, have the right to take a reasonable amount of unpaid time off where it is necessary to care for a dependent. A dependent includes the spouse, civil partner, child and parents of the employee and others who reasonably rely on the employee for care or assistance. However, this right only applies in five specified circumstances
To avail themselves of this right, an employee must inform you as soon as reasonably practicable of the need to use this right and how long they expect to be absent.
The legislation is intended to cover a situation where there is an immediate crisis. Therefore this right would not cover, for example, time off to take a child to a planned medical appointment but this could potentially be covered by parental leave. It would also not cover a situation where the employee needed to take time off to stay home because a pipe had burst and their house had been flooded. A compliant policy is available at TD2: Time Off for Dependants Policy.
An eligible employee i.e. an employee who has 26 weeks’ continuous service and who has not made a flexible working request in the last 12 months, can apply to change their hours, times or place of work. These 3 wide categories would therefore cover a request to just work term-time hours as it would be a change to the employee’s hours and similarly a request to work one day a week from home would also be covered as it would be a change to the employee’s place of work.
The flexible working request must also adhere to certain formalities, including that it must be dated and in writing.
Once the request has been received an employer must provide their decision within 3 months. The employer may be able to accommodate the flexible working request fairly easily in which case they can simply advise the employee that their request has been agreed. However, it is unusual for an employer to be able to agree to a request without first meeting the employee and discussing the proposed changes and their impact Our flowchart F2: Flexible working flowchart sets out what should happen and when.
If a request cannot be immediately agreed then the next step is to acknowledge the request and invite the employee to a meeting – see F4: Acknowledgment of flexible working request and invitation to meeting for a letter to send to the employee and F13: Guidance: conducting meeting to consider flexible request for specific advice on how to conduct the meeting.
If you are not sure whether the request can be accommodated, the request can be accepted but conditional upon the employee working a successful trial period.
A request can be rejected but only for one of the eight permitted reasons.
Where a request is rejected, the employee should be permitted to right to appeal.
If a flexible working request is agreed then the proposed changes to the employee’s contract are permanent, subject to any trial periods. To avoid any confusion (and to comply with legislation which requires that certain contractual changes are confirmed to the employee in writing) it is sensible to confirm any changes in writing. For a letter to send to the employee confirming that the flexible working request in writing see F5: Confirmation of acceptance of flexible working request.
The potential difficulties for employers are:
Failure to properly respond to a flexible working request can result in the employee resigning and bringing a claim of constructive dismissal and/or discrimination.
Yes, employers can be liable for anything discriminatory that is done by an employee, agent, consultant or contractor in the course of their employment (no matter how junior the employee may be and irrespective of whether the employee’s actions were done with the employer’s knowledge or approval).
An employee alleging discrimination can bring a claim against the alleged discriminator personally and the employer.
There are 9 ‘protected characteristics’ under the Equality Act 2010 which are: sex, disability, race (including nationality), age, pregnancy and maternity, marriage and civil partnership, religion or belief, gender re-assignment and sexual orientation.
There are four main types of discrimination claim that can be brought against an employer. They are:
In relation to disability discrimination, there are additional forms of discrimination: discrimination arising from a disability and failure to make reasonable adjustments. These forms of discrimination are covered in further detail in:
DIS3: Disability Discrimination
For further guidance on the most common specific strands of discrimination please see:
DIS2: Guidance: Sex Discrimination
DIS3: Guidance: Disability Discrimination
DIS4: Guidance: Race Discrimination
DIS5: Guidance: Age Discrimination
Direct discrimination occurs when, because of a protected characteristic, an employer treats an employee or job applicant less favourably than they treat or would treat others.
For example, a woman not being considered for promotion because she is pregnant.
An employee or job applicant claiming direct discrimination has to establish/satisfy the burden of proof as follows in order for their claim to be successful:
Direct discrimination can be by association or perception; for example in relation to a disabled family member of an employee (association) or if an individual is perceived as homosexual (perception), regardless of whether this perception is correct or not.
Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic.
For example, a dress code which applies to all employees but prevents employees of a particular religion wearing certain items of clothing which their religion requires them to wear.
You may be able to defend an indirect discrimination claim if you can demonstrate that your actions are or were ‘a proportionate means of achieving a legitimate aim’. To do this you must be able to evidence that you had a legitimate aim corresponding to a real business need, and that the policy or practice was a proportionate means of achieving that aim.
Indirect discrimination risks need to be considered when rejecting flexible working requests. For more information see:
F1 – How to guide – Flexible working
Harassment is defined as unwanted conduct related to a protected characteristic which has the purpose or effect of violating an employee or job applicant’s dignity, or, creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
It is common for harassment claims to result from workplace banter or a joke which an individual made not considering or intending it to be offensive, and perhaps at first glance is not related to a particular protected characteristic.
For example: an employee thinks it is inoffensive to say ‘Ooo la la’ whenever a French colleague finishes speaking but his colleague becomes sick of this joke.
Harassment can take the form of a one-off incident or a series of incidents. As with direct discrimination an employee does not need to have the protected characteristic to make a harassment claim.
In addition to harassment relating to one of the protected characteristics, harassment of a sexual nature can also give rise to a claim against an employer. Sexual harassment comes in two forms:
The victimisation provisions in the Equality Act 20210 are designed to enable employees to exercise their rights under the Act without fear of repercussions or punishments from their employer. The provisions protect employees or job applicants who do (or might do) “protected acts” such as bringing discrimination claims, complaining about harassment (including by lodging a grievance), or getting involved in some way with another claimant’s discrimination complaint (such as giving evidence). If a person subjects another person to a detriment because, either, they have done a protected act or it is thought that they have done or may do a protected act then this will create grounds for a victimisation claim.
The general rule is that an employee who believes that they have been discriminated against has 3 months from the date of the alleged discriminatory act to submit a claim to the employment tribunal. If the act is part of a series of related acts, the employee has 3 months from the date of the last act to submit a claim.
The tribunal can extend the 3 month period for bringing a discrimination claim if it feels that it is just and equitable to do so.
Compensation for discrimination claims is uncapped and therefore can be potentially costly. Additionally, the employee can bring the claim while still in employment. Costs are broadly split into the following categories:
Compensation for loss of earnings – this is uncapped and can potentially cover a number of years depending on when the employee obtains alternative employment.
Injury to feelings – is calculated on the basis of the level of hurt caused to the individual and is based on what is known as Vento bands. The lower, middle and upper bands of Vento set out the ranges of compensation available, depending on the nature of the discrimination suffered. These bands are reviewed and increased periodically and are subject to the current maximum of £44,000, except in the most exceptional circumstances.
Reputational damage is also a risk with these types of claims and something that schools should be aware of.
The steps we recommend to minimise the risk of a claim arising are:
For further information on discrimination in an employment setting see:
DIS1 How to Guide: Avoiding discrimination
It is a complaint, concern or problem raised by a member of staff. It can cover anything from a complaint about a colleague and the way they have been treated, to a complaint about unequal pay or an unfair process.
A grievance can also cover a complaint of bullying and harassment and discrimination although many organisations have a separate policy for handling these concerns.
No. A grievance can be a verbal complaint made to someone’s manager or headteacher. Ideally, however, you would ask your member of staff if they want to put their grievance in writing so that there is a record. If a grievance is put in writing, it does not prevent an informal approach being taken if appropriate.
No. In many cases it is appropriate to deal with a grievance informally, particularly where it has been a one off or minor incident. Speaking to the parties involved on an informal basis can often diffuse the situation and enables the parties to see the other’s point of view.
If the informal approach does not resolve the issue then the next step is to use the formal process. You should also use the formal process where the incident is more serious, or there have been a number of incidents, or the aggrieved person insists.
If you have a grievance policy it will also provide guidance on the approach to follow.
For further guidance on the process employers need to follow see:
Flowchart: Grievance
It is not a mandatory requirement for schools to have a grievance policy in place, but it can be extremely helpful when dealing with such matters as it sets out what is expected of the employee and school in these situations. It is crucial that all grievance policies incorporate the provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures as a minimum:
https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html
For a compliant policy please see:
G11: Grievance Policy and Procedure
This should be someone who is independent to the issues. Ideally it should be the direct line manager of the complainant or the headteacher. If the grievance is about that line manager then it should be their line manager or someone more senior.
If you have are a small school where there is no one truly independent then you could consider asking governor or an external person from specialist investigation company or with an HR background to undertake the investigation.
All employees are entitled to be accompanied to a grievance hearing, by either a colleague or Trade Union representative. There is no right to be accompanied to a grievance investigation meeting. Where the employer fails to allow the employee to be accompanied to a grievance hearing and the individual subsequently brings a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation. See:
G3: Acknowledgement of grievance and invitation to grievance meeting
G4: Grievance meeting guidance
Yes.
It is not unusual for someone who is subject to a disciplinary or performance management process, for example, to raise a grievance to say that they have been treated unfairly. You have three options:
The approach you take will depend on a number of factors such as; is the aggrieved saying that the disciplinary process itself is unfair which may mean that their grievance needs to be investigated independently? You would have to be mindful of any delay to the disciplinary process if you choose to pause it whilst the grievance is investigated.
Or are they saying that, for example, their manager has treated them unfairly which is why they have behaved as they have, in which case it may be suitable to have a combined investigation and grievance process.
Or is it a more general grievance about how they have been treated which would have no effect on the outcome of any disciplinary process? In which case the processes could be kept separate.
Yes although the investigation might be limited if you are unable to clarify the issues with the person who has raised the grievance.
Potentially yes.
If the individual raised the grievance whilst they were still employed then you should investigate their concerns particularly as it may be the basis for an Employment Tribunal claim.
If they raised the grievance after they have left your employment you will need to consider the risk that they may bring a claim arising out of the issues in the grievance and if that claim can be brought in time.
If the grievance raises serious issues about bullying and harassment by management or a group of employees, for example, it could be necessary to investigate those concerns particularly if there is a potential for impact on the individuals who remain. If the grievance concerns allegations relevant to safeguarding then you should always investigate.
Often employers are found by Employment Tribunals to have not taken a balanced approach to the investigation and only investigated the facts in support of the allegations, not those which support the employee.
Allegations in a grievance can be complex and can cover a long period of time. It is crucial that the investigator is clear about what allegations need to be investigated. Ideally the scope of the investigation should be agreed with the aggrieved at the outset.
Raising a grievance is often a very stressful time for the individual making the complaint and the individuals being investigated. If the investigation is handled poorly, it can badly damage the employment relationship. Investigations do not always run to plan and there can be delays. It is very important to keep the line of communication open with all those involved and provide updates on the progress of the investigation particularly if there is a delay.
Clearly, each case turns on its own facts, but employers need to be very wary of being capable of justifying any differences in treatment. If the decision is not capable of justification then it may give rise to a constructive unfair dismissal claim, and potentially some form of discrimination claim if the individual can show that the difference in treatment can be explained by their protected characteristic.
There is no legal requirement to do so and organisations often make the decision not to because of the sensitive nature of the allegations and information provided.
Careful consideration will need to be given to any request for a copy of the notes. Remember that someone can make a subject access request and obtain the notes in that way. Schools can be the subject to freedom of information requests which can yield a wider range of documents.
For further guidance on the appropriate grievance process please see:
Flowchart: grievances and D1: How to Guide: Grievances
Anyone over the age of 16 who is not in full time education, whether they are a current employee or new to the school, can become an apprentice.
Schools who employ those under the age of 18 must assess the risk to such individuals from a health and safety point of view before they start employment, taking into account their inexperience, lack of awareness of risks and immaturity.
The first and perhaps most important thing to understand when considering employing an apprentice is to make sure that the individual is engaged on the correct type of contract. Using the wrong contract is the main pitfall for employers to be wary of; it can make dismissing an apprentice, even for gross misconduct, high risk.
The education sector now has a series of approved apprenticeship standards that the apprentice will work towards, depending on their role. To see an example of the standards and required learning outcomes you should visit the Institute for Apprenticeship’s website:
https://www.instituteforapprenticeships.org/apprenticeship-standards
Where a standard does not exist for a particular role then there may be an apprenticeship framework in place. The government are in the process of replacing these therefore standards should be used where possible.
Apprenticeship agreements in England have to be in a prescribed form and satisfy certain conditions. If you engage an apprentice but do not do so in the prescribed form or if an approved standard does not exist for your sector then the apprentice will be engaged under a ‘contract of apprenticeship’, meaning that they are a traditional apprentice. Such individuals can only be safely dismissed where it has become impossible to train them.
For a compliant contract using an approved apprenticeship standard see:
A2: Contract of employment: apprenticeship agreement (English approved standard)
Or where a framework is still in place and no approved English apprenticeship standard has been produced see:
A3: Contract of employment: apprenticeship agreement (framework)
Your responsibility to ensure the delivery of the training element of the apprenticeship is the main difference between your’ responsibilities towards apprentices and other employees.
Apprentices must spend at least 20% of their time on off-the-job training. When you take on an apprentice you should select a training provider from the register of apprenticeship training providers and agree a price for the cost of training and assessment. On completion of the apprenticeship the apprentice must pass an assessment to demonstrate that they can perform the relevant role to the standard set by the relevant apprenticeship standard or framework.
You can select and compare training providers and view apprenticeship standards/frameworks on the apprenticeship service on gov.uk:
https://www.gov.uk/guidance/manage-apprenticeship-funds
Aside from ensuring the delivery of appropriate training, schools also need to have:
A trust or governing body with a pay bill of over £3 million a year must pay the apprenticeship levy regardless of whether they employ an apprentice.
The levy is currently 0.5 per cent of the total pay bill. It is deducted through the PAYE each month and paid into a fund which is reinvested in apprenticeship training. For every £1 contributed the government adds 10p. If you are a levy paying school you can manage and access levy funds and your apprenticeship program by using the online apprenticeship service:
You can take the same approach to performance management, misconduct, dismissal, etc. with an apprentice as you would any other employee provided they are engaged on the correct contractual documentation. Similarly, apprentices are entitled to holiday pay, sick pay and maternity/paternity/adoption/shared parental leave subject to the usual qualifications.
However, if an apprentice is working under a contract of apprenticeship then dismissing them before their fixed term contract ends is high risk. See can I dismiss an apprentice during their apprenticeship below.
If the apprentice is employed under an apprenticeship agreement you can terminate their employment by following the same procedures as you would with any other employee.
If the school will not be employing the apprentice after the completion of their apprenticeship this is likely to constitute a dismissal (regardless of the fact that their fixed term has expired). You should therefore treat the expiry of their fixed term like any other dismissal, i.e. be able to show that one of the five potentially fair reason for dismissal apply, most likely some other substantial reason, and be able to demonstrate that you followed a fair procedure in relation to the dismissal. Failure to do so may give grounds for an unfair dismissal claim. Although apprentices who have worked for the school for less than 2 years would only be able to bring a claim in limited circumstances.
If the apprentice is employed under a contract of apprenticeship then dismissing them before the end of their apprenticeship is high risk unless it can be shown that they are essentially unteachable. An apprentice whose apprenticeship ends early could be entitled to claim sums in respect of loss of earnings, loss of training and loss of future career prospects. Please speak to your legal advisor for further advice in these circumstances.
For further guidance on employing apprentices see:
A1: How to Guide: Apprenticeships
There are specific rules in place in relation to employing children. These largely relate to special provisions on limiting working time and providing adequate rest. For further information, see:
M14: Guidance Note: employing children and young workers
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M16 – Guidance Note – employing children and young workers
Settlement agreements can be a very effective way of managing exits from the business, whilst also managing the risks involved. By offering a settlement agreement to an employee you are effectively buying off the risk of a claim. A settlement agreement can also a useful way to bind exiting employees to additional provisions on confidentiality and post termination restrictions, where necessary.
Employers need to be very careful when discussing potential settlement with employees, as a poorly managed conversation can in itself trigger claims. For further information on how to conduct these conversations, please see:
M9: Guidance on holding protected conversations
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M9 – Guidance on holding protected conversations
In order for settlement agreements to be binding it is essential that the document is properly drafted and sets out the agreement between the parties accurately. A settlement agreement that does not comply with the legislative requirements is very unlikely to be enforceable. Please speak to your advisor about drafting an agreement for you.
In order to put together the settlement agreement your advisor will require certain information from you. Please complete Settlement Agreement questionnaire which sets out all of the relevant information required.
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M7 – Settlement agreement questionnaire
It is not up to the employer to “accept” an employee’s resignation, or otherwise- it is up to the individual to resign and inform the employer that this is the case. However, a resignation should be acknowledged by the employer and a letter confirming arrangements should be sent to the employee. For a letter acknowledging a resignation please see:
M2: Letter acknowledging resignation
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M2 – Letter acknowledging resignation
The Working Time Regulations imposes strict limits on working time in relation to minimum rest periods, rest breaks, holidays and limiting working time. There is restricted ability for employers to validly exceed these limits, however employers are able to ask their workers to opt out of the 48 hour maximum working week by getting them to sign an opt out agreement.
There are significant penalties for employers who do not observe the 48 hour maximum working week and who do not have opt out agreements in place. Therefore, where there is a possibility that a worker may exceed a 48 hour maximum working week then it is crucial that an opt out agreement is put in place. See, Working Time Regulations: 48 hour opt out agreement in the document section. However, employers should also be mindful of not subjecting employees to a detriment for agreeing to the opt out, or withdrawing their consent to this.
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M1 – Working Time Regulations – 48 hour opt out agreement
Lay off is a temporary measure where an employee is required not to do any work by their employer in any given week and does not receive any salary for that period. This is sometimes used interchangeably to refer to redundancies; however, this is not correct and lay-off is different to redundancy.
Lay-off may be very useful to achieve short or medium-term cost savings in response to a temporary reduction in demand for products or services. Whether the employer has the right to implement lay-offs and how swiftly they can expect to be able to do so will depend on whether the relevant contracts of employment have specific provisions which deal with lay-off.
Short time working is where an employer temporarily reduces an employee’s working hours, with a corresponding reduction in their pay to less than 50% of their usual salary. This could be through reducing the number of working days, reducing the length of working days or a combination of both.
Short time working provides the employer with the ability to reduce staffing costs whilst providing flexibility in deciding the form of working pattern. As with lay-off, whether the employer has the right to unilaterally impose short-time working and how swiftly they can expect to practically implement this will depend on whether the relevant contracts of employment contain a short time working clause.
Where there is a contractual right to lay off or impose short time working: There is no strict process which has to be followed. We would advise transparent communication and confirmation in writing.
Where there is no contractual right: Imposing these options without a contractual right to do so will be a fundamental breach of the employee’s contract of employment. In these circumstances the employee’s options are: accept the situation and keep working; claim for lost pay; resign and claim constructive dismissal. The best approach for employers in these circumstances is to instead seek to agree lay-off or short-time working arrangements with employees.
There is no prescribed method for selecting which employees are to be laid-off or placed on short-time working, provided that the employee cannot argue that the method of selection is discriminatory in some way. We would advise selection based on objective business reasons.
Entitlement to pay during lay-off or short time working: Employees must be paid for the time they work. Additionally, while on lay off or short time working, an employee is entitled to receive statutory guarantee pay for the first 5 workless days in any 3-month period. The maximum statutory guarantee pay in any 3-month period is £150 (i.e. £30 for each workless day up to a maximum of 5).
Entitlement to statutory redundancy pay: Once employees have been on lay-off or on short-time working for 4 consecutive weeks or for a combined total of 6 weeks during any 13-week period, they may seek to claim a statutory redundancy payment (provided that they have two years’ service). There is a prescriptive process for this – please seek advice.
Family leave and rights have gradually been extended over the years, including most recently the addition of parental bereavement rights in 2020. Now employees have a number of rights which relate to family leave. Broadly speaking, these are: adoption leave and pay; pregnancy and maternity leave, pay and rights; paternity leave and pay; parental leave; shared parental leave; time off for dependents and; parental bereavement leave. In addition, all employees are able to request flexible working after 26 weeks’ continuous employment.
HR Protect customers can access detailed guidance, template letters and policies. For a summary of the family friendly rights please see: How to guide: Family friendly rights overview.
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How to Guide – Family friendly rights
Both are entitled to up to 52 weeks of leave and 39 weeks of statutory pay and to take time off for adoption or ante-natal appointments. See AD7: Time Off for Adoption Appointments Policy and MAT11: Time Off for Antenatal Appointments Policy. Similarly, once the leave has ended, both are entitled to return to the same job or a suitable alternative and protected from dismissal or detriment due to having taking adoption/maternity leave. Employers are entitled to minimum notice from their employees if they intend to take adoption or maternity leave.
However, employers have additional health and safety obligations in relation to pregnant employees and not all adoptions are protected under the law. For example, some private adoptions are not covered by the legislation. See AD1: How to guide – Adoption for details and MAT1: How to guide – Pregnancy and maternity for details.
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AD7 – Time Off for Adoption Appointments Policy
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MAT11 – Time Off for Antenatal Appointments Policy
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AD1 – How to guide – Adoption
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MAT1 – How to guide – Pregnancy and maternity
To qualify for statutory maternity pay, an employee must notify their employer of their pregnancy by no later than 15 weeks before they are due to give birth. The employee should also provide a certificate from a doctor or midwife. This is usually done using a MAT B1 form. Full details can be found in MAT10 – Maternity Policy.
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MAT10 – Maternity Policy
Yes, employees on maternity leave are permitted to return to work for up to 10 days without ending their maternity leave. These days are known as ‘keeping in touch’ (KIT) days. For a letter inviting an employee to a KIT day, please see: MAT7: Request for employee to attend a KIT day
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MAT7 – Request to employee to attend a KIT day
Paternity leave entitles an employee to a maximum of 2 weeks’ leave within the first 56 days following the birth/placement for adoption of their child and is available to the child’s father or spouse of the mother so that they can care for their child. Statutory paternity pay is available for a maximum of 2 weeks.
Further details of paternity leave can be found at PAT1: How to guidance and PAT3: Paternity Policy.
In contrast, parental leave allows a parent to take up to 18 weeks’ unpaid leave to care for their child.
Minimum service, notice and evidential requirements must be met for both types of leave
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PAT1 – How to guide – Paternity
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PAT3 – Paternity Policy
Employers who properly document the recruitment process to establish a paper trail will be better placed to justify decisions taken, to show that a selection decision was based on objective evidence of an applicant’s ability to do the job (rather than on assumptions or prejudices) and to show that they took reasonably practicable steps to prevent unlawful discrimination or harassment.
Protection from discrimination applies to job applicants in the same way as it does actual employees so, from a risk point of view it is essential that employers avoid any form of discrimination during the recruitment and appointment process, even if this is done advertently.
For further information on discrimination see:
DIS1 How to Guide: Avoiding Discrimination
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DIS1 – How to guide – Avoiding Discrimination
Before advertising a vacancy, a written job description for the role should be compiled. The job description should cover:
When compiling a job description, ensure that an appropriate job title is used that does not show any premeditated bias (e.g. “paper boy” or “waitress”) and that the job is accurately described.
You may also wish to prepare a person specification detailing the experience, know-how and qualifications, skills, abilities and behavioural attributes necessary to perform the duties in the job description. Criteria in the job description or specification must not be discriminatory and employers should be able to justify any necessary or desirable criteria against the job in question.
It is generally considered best equal opportunities practice to advertise all vacancies externally as this will ensure that as wide a pool of candidates as possible is reached. This will not always be appropriate however, for example, in a redundancy situation, where an employer is obliged to consider what alternative employment is available within the organisation for employees who are at risk of redundancy.
For further information on redundancy see:
R1 – How to Guide – Redundancy.
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R1 – How to Guide – Redundancy
Yes. All employees, regardless of their length of service, have the right to take a reasonable amount of unpaid time off where it is necessary to care for a dependent. A dependent includes the spouse, civil partner, child and parents of the employee and others who reasonably rely on the employee for care or assistance. However, this right only applies in five specified circumstances
To avail themselves of this right, an employee must inform their employer as soon as reasonably practicable and how long they expect to be absent.
The legislation is intended to cover a situation where there is an immediate crisis. Therefore this right would not cover, for example, time off to take a child to a planned medical appointment but this could potentially be covered by parental leave. It would also not cover a situation where the employee needed to take time off to stay home because a pipe had burst and their house had been flooded. A compliant policy is available at TD2: Time Off for Dependants Policy.
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TD2 – Time off for dependants policy
An eligible employee i.e. an employee who has 26 weeks’ continuous service and who has not made a flexible working request in the last 12 months, can apply to change their hours, times or place of work. These 3 wide categories would therefore cover a request to just work term-time hours as it would be a change to the employee’s hours and similarly a request to work one day a week from home would also be covered as it would be a change to the employee’s place of work.
The flexible working request must also adhere to certain formalities, including that it must be dated and in writing.
Once the request has been received an employer must provide their decision within 3 months. The employer may be able to accommodate the flexible working request fairly easily in which case they can simply advise the employee that their request has been agreed. However, it is unusual for an employer to be able to agree to a request without first meeting the employee and discussing the proposed changes and their impact Our flowchart F2: Flexible working flowchart sets out what should happen and when.
If a request cannot be immediately agreed then the next step is to acknowledge the request and invite the employee to a meeting – see F4: Acknowledgment of flexible working request and invitation to meeting for a letter to send to the employee and F13: Guidance: conducting meeting to consider flexible request for specific advice on how to conduct the meeting.
If an employer is not sure whether the request can be accommodated, they can accept the request but make it conditional upon the employee working a successful trial period.
A request can be rejected but the employer must rely on one of the eight permitted reasons.
Where a request is rejected, the employee should be permitted to right to appeal.
If a flexible working request is agreed then the proposed changes to the employee’s contract are permanent. To avoid any confusion (and to comply with legislation which requires that certain contractual changes are confirmed to the employee in writing) it is sensible to confirm any changes in writing. For a letter to send to the employee confirming that the flexible working request in writing see F5: Confirmation of acceptance of flexible working request.
The potential difficulties for employers are:
Failure to properly respond to a flexible working request can result in the employee resigning and bringing a claim of constructive dismissal and/or discrimination.
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F2 - Flexible working flowchart
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F4 – Acknowledgment of flexible working request and invitation to meeting to discuss
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F13 – Guidance on conducting meeting to discuss flexible working requests
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F5 – Confirmation of acceptance of flexible working request
Yes, please see the documents below:
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AD2 – Acknowledgement of adoption leave and confirmation of dates
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AD3 – Request for employee to attend a KIT day
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AD4 – Welcome back from adoption leave
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AD5 – Failure to return from adoption leave
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AD6 – Adoption Policy
Yes, please see the documents below:
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F1 – How to guide – Flexible working
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F3 – Flexible working request (to be completed by employee)
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F6 – Letter: flexible working request trial period
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F7 – Rejection of flexible working request
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F8 – Invitation to appeal meeting: flexible working request
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F9 – Appeal outcome: flexible working request accepted
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F10 – Appeal outcome: flexible working request rejected
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F11 – Letter treating flexible working request as withdrawn
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F12 – Flexible Working Policy
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F14 – Guidance: conducting appeal against flexible working request outcome
Yes, please see the documents below:
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MAT2 – Acknowledgement of pregnancy notification, confirmation of EWC and maternity leave dates notification
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MAT3 – Confirmation of return to work date where maternity leave started early
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MAT4 – Confirmation of temporary change to duties during pregnancy
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MAT5 – Confirmation of paid suspension from work on maternity grounds
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MAT6 – Acknowledgement of birth of baby
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MAT8 – Welcome back from maternity leave
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MAT9 – Failure to return from maternity leave
Yes, please see the documents below:
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PAT2 – Acknowledgement of paternity leave
Yes, please see the documents below:
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PB1 – Parental Bereavement Leave and Pay Policy
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PL1 – How to Guide: Parental Leave
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PL2 – Letter acknowledging request and granting parental leave
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PL3 – Letter postponing parental leave
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PL4 – Letter acknowledging request and refusal of parental leave on eligibility grounds
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PL5 – Parental Leave Policy
Yes, please see the documents below:
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SPL1 – How to Guide: Shared Parental Leave
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SPL2 – Curtailment Notice (from employee)
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SPL3 – Notice of intention to take SPL (from employee)
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SPL4 – Letter requesting evidence of entitlement to SPL
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SPL5 – Acknowledgement of intention to take SPL and confirmation of dates
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SPL6 – Period of Leave Notice (from employee)
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SPL7 – Acknowledgement of Period of Leave Notice
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SPL8 – Request to employee to attend KIT day
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SPL9 – Failure to return from SPL
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SPL10 – Shared Parental Leave Policy
Yes, please see the documents below:
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TD1 – How to guide – Time off for dependants
You should consider the format in which applications should be submitted. Adopting a standardised process, whether through using an application form or requesting CVs is recommended so that applicants can compete on equal terms and to help the employer show that applicants have been assessed objectively.
Be prepared to react where reasonable adjustments need to be made for disabled candidates, e.g. providing information in large print, braille etc. so they are not disadvantaged in the recruitment process. For further information on reasonable adjustments see
DIS3 – Guidance – Disability Discrimination.
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DIS3 – Guidance – Disability Discrimination
There is no obligation to carry out monitoring but it can help to highlight inequality in the workplace, identify the causes and help to remove unfairness and disadvantage.
Equal opportunities forms should be separated from individual applications prior to the shortlisting process and should be anonymised. Applicants should be informed that the form does not constitute part of any assessment for the job applied for and that completing the form is optional.
For a copy of the form, please see:
REC10: Equal opportunities monitoring form
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REC10 – Equal opportunities monitoring form
There are a number of processes available to you when assessing and selecting the ideal candidate for the job advertised for example, shortlisting, selection tests, assessment centres and interviews. All selection processes undertaken must be fair, consistent and result in the appointment of the best person for the job.
You should ensure that, as far as possible, arrangements for holding tests or interviews, or using assessment centres, do not put any candidates at a disadvantage in connection with a protected characteristic. For example, where the dates or times coincide with religious festivals.
Employers are not required to make changes to recruitment processes in anticipation of applications from disabled people. However, if an employer knows, or could be reasonably expected to know that a particular disabled person is, or may be, applying for a role and is likely to be substantially disadvantaged by the premises or arrangements, then reasonable adjustments must be made. For example, if an applicant is a wheelchair user you should make sure that the premises where the interview is being held are accessible in order to remove any disadvantage that individual may suffer because of their disability.
Employers should also consider whether any tests could be indirectly discriminatory.
Using a panel of managers to consider applications is usually considered best practice.
All documents collected in the recruitment process which include the personal data of applicants must be processed in accordance with data protection legislation, in the same way as is necessary for the personal data of current employees within the business.
Job applicants should be made aware of how the employer will process the information they supply, for example via a statement in the job advert and how long it will be held for. For a template privacy notice, please see:
REC11: GDPR candidate privacy notice.
For further details on handling data during the recruitment process, please see:
REC6: Guidance: retention and erasure of employment records.
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REC6 – Guidance – retention and erasure of employment records
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REC11 – GDPR candidate privacy notice
Employers are not permitted to ask about the health of a job applicant before offering a job to them, except in a limited number of situations. When a job offer has been made, it can be made conditional on satisfactory health checks, but employers must not discriminate against job applicants having received the results of such checks. Health checks would usually only be appropriate where relevant to the job or where reasonable adjustments need to be considered for disabled applicants.
For more information on pre-employment health questionnaires, please see:
REC3: Guidance: pre-employment health questionnaires.
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REC3 – Guidance – pre-employment health questionnaires
After identifying the applicant who is to be offered a job, a written job offer should be sent to the person, see:
You should ensure that offer letter is consistent with the contract of employment subsequently provided. You may want to consider making the job offer conditional on matters such as references, proof of right to work or qualifications etc.
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REC7 – Example offer letter – permanent post
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REC8 – Example offer letter – fixed term post
References should not be obtained until after a selection decision has been reached. This is to ensure that the selection decision is based strictly on objective criteria and is not influenced by other factors, such as potentially subjective judgments about a candidate by referees. It is also good practice to send a referee copies of the job description and person specification, requesting evidence of the applicant’s ability to meet the specific requirements of the job.
The information requested in a reference can vary. It is common to ask for information such as the applicant’s dates of employment, current role and past roles, salary and disciplinary record. However, employers may be unwilling to give all of this information and some will have a policy of only confirming factual information such as dates of employment and role.
For full guidance on receiving references, see:
REC4: Guidance: providing and receiving employment references.
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REC4 – Guidance – providing and receiving employment references
Generally (aside from some very specific exceptions) there is no legal obligation on employers to provide a reference for a current or former employee. However, a consistent approach (whether or not to give references and what to include in them) is recommended, particularly to avoid allegations of discrimination.
If a reference is provided, the employer owes a duty to take reasonable care to ensure that it is true, accurate and fair and does not give a misleading impression. Failure to do so could give rise to claims against the employer.
All employers have a duty to prevent illegal working by carrying out prescribed document checks on candidates before employing them to ensure they have the right to work in the UK.
You are expected to keep a record that they have been carried out and repeat them in respect of any individuals who have time-limited permission to work in the UK, prior to the expiration of that permission.
It is a criminal offence if an employer employs an illegal worker and knows, or has reasonable cause to believe, that the person has no right to do the work in question in the UK. It is a civil offence if you employ someone who does not have the right to carry out the work in question, which can be punished by a penalty of up to £20,000 for each individual who does not have the right to work.
An employer will be excused from paying a civil penalty if they are able to show that they complied with the prescribed right to work checks and retained records to prove that those checks were completed correctly. For further information, see:
REC5: Guidance: right to work checks.
In order to avoid claims for discrimination, employers should carry out the same checks on all prospective employees and not just those who appear to be non-British.
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REC5 – Guidance – right to work checks
For further information and useful documents on recruitment see:
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REC1 – How to Guide – recruitment
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REC12 – Employment records: retention and erasure guidelines
Yes, employers can be liable for anything discriminatory that is done by an employee, agent, consultant or contractor in the course of their employment (no matter how junior the employee may be and irrespective of whether the employee’s actions were done with the employer’s knowledge or approval).
An employee alleging discrimination can bring a claim against the alleged discriminator personally and the employer.
There are 9 ‘protected characteristics’ under the Equality Act 2010 which are: sex, disability, race (including nationality), age, pregnancy and maternity, marriage and civil partnership, religion or belief, gender re-assignment and sexual orientation.
There are four main types of discrimination claim that can be brought against an employer. They are:
In relation to disability discrimination, there are additional forms of discrimination; discrimination arising from a disability and failure to make reasonable adjustments. These forms of discrimination are covered in further detail in:
DIS3: Disability Discrimination
For further guidance on the most common specific strands of discrimination please see:
DIS2: Guidance: Sex Discrimination
DIS3: Guidance: Disability Discrimination
DIS4: Guidance: Race Discrimination
DIS5: Guidance: Age Discrimination
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DIS2 – Guidance – Sex Discrimination
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DIS3 – Guidance – Disability Discrimination
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DIS4 – Guidance – Race Discrimination
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DIS5 – Guidance – Age Discrimination
Direct discrimination occurs when, because of a protected characteristic, an employer treats an employee or job applicant less favourably than they treat or would treat others.
For example, a woman not being considered for promotion because she is pregnant.
An employee or job applicant claiming direct discrimination has to establish/satisfy the burden of proof as follows in order for their claim to be successful:
Direct discrimination can be by association or perception; for example in relation to a disabled family member of an employee (association) or if an individual is perceived as homosexual (perception), regardless of whether this perception is correct or not.
Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic.
For example, a dress code which applies to all employees but prevents employees of a particular religion wearing certain items of clothing which their religion requires them to wear.
You may be able to defend an indirect discrimination claim if you can demonstrate that your actions are or were ‘a proportionate means of achieving a legitimate aim’. To do this you must be able to evidence that you had a legitimate aim corresponding to a real business need, and that the policy or practice was a proportionate means of achieving that aim.
Indirect discrimination risks need to be considered when rejecting flexible working requests. For more information see:
F1 – How to guide – Flexible working.
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F1 – How to guide – Flexible working
Harassment is defined as unwanted conduct related to a protected characteristic which has the purpose or effect of violating an employee or job applicant’s dignity, or, creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
It is common for harassment claims to result from workplace banter or a joke which an individual made not considering or intending it to be offensive, and perhaps at first glance is not related to a particular protected characteristic.
For example: an employee thinks it is inoffensive to say ‘Ooo la la’ whenever a French colleague finishes speaking but his colleague becomes sick of this joke.
Harassment can take the form of a one-off incident or a series of incidents. As with direct discrimination an employee does not need to have the protected characteristic to make a harassment claim.
In addition to harassment relating to one of the protected characteristics, harassment of a sexual nature can also give rise to a claim against an employer. Sexual harassment comes in two forms:
The victimisation provisions in EqA10 are designed to enable employees to exercise their rights under the Act without fear of repercussions or punishments from their employer. The provisions protect employees or job applicants who do (or might do) “protected acts” such as bringing discrimination claims, complaining about harassment (including by lodging a grievance), or getting involved in some way with another claimant’s discrimination complaint (such as giving evidence). If a person subjects another person to a detriment because, either, they have done a protected act or it is thought that they have done or may do a protected act then this will create grounds for a victimisation claim.
The general rule is that an employee who believes that they have been discriminated against has 3 months from the date of the alleged discriminatory act to submit a claim to the employment tribunal. If the act is part of a series of related acts, the employee has 3 months from the date of the last act to submit a claim.
The tribunal can extend the 3 month period for bringing a discrimination claim if it feels that it is just and equitable to do so.
Compensation for discrimination claims is uncapped and therefore can be potentially costly. Additionally, the employee can bring the claim while still in employment. Costs are broadly split into the following categories:
Compensation for loss of earnings – this is uncapped and can potentially cover a number of years depending on when the employee obtains alternative employment.
Injury to feelings – is calculated on the basis of the level of hurt caused to the individual and is based on what is known as Vento bands. The lower, middle and upper bands of Vento set out the ranges of compensation available, depending on the nature of the discrimination suffered. These bands are reviewed and increased periodically and are subject to the current maximum of £44,000, except in the most exceptional circumstances.
Reputational damage is also a risk with these types of claims.
The steps we recommend to minimise the risk of a claim arising are:
For further information on discrimination in an employment setting and access to our Equal Opportunities policy see:
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DIS1 – How to guide – Avoiding Discrimination
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DIS6 – Equal Opportunities Policy
Some conduct issues can be dealt with in an informal way by speaking to the employee and making them aware that their conduct is not acceptable. However, where the informal stage has not resolved the issue, or in more serious matters, you will need to take formal action. Formal action requires that a proper process is followed by the employer, and if a proper process is not followed then the action is unlikely to be fair.
For further guidance on the formal process employers need to follow see: Flowchart: Disciplinary and Dismissal
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D2 – Disciplinary and dismissal flowchart
It is correct that short serving employees (i.e. those with less than 2 years’ service) do not have protection from unfair dismissal in the same way that those employees with 2 years’ service. However, this does not mean that short serving employees can be dismissed without risk in all circumstances.
Certain claims, including for example discrimination, health and safety related dismissals and whistleblowing (to name but a few) do not have a minimum service requirement.
For a full list of claims someone can bring if they have less than 2 years’ service see: Claims: no qualifying service requirement
It is not a mandatory requirement for employers to have a disciplinary policy in place, but it can be extremely helpful when dealing with disciplinary matters as it sets out what is expected of the employee and employer in these situations. It is crucial that all disciplinary policies incorporate the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures as a minimum:
https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html
For a compliant policy please see:
D17: Disciplinary Policy and Procedure
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D17 – Disciplinary Policy and Procedure
No. Where allegations of gross misconduct arise these should be properly investigated and the individual taken through a fair disciplinary process. If this does not happen then there is a real risk that what would have been a fair dismissal is turned into an unfair dismissal by the lack of process followed. This may mean an employer being on the wrong end of an unfair dismissal claim in the Employment Tribunal, even though the individual had committed gross misconduct.
For all disciplinary matters (not just instances of gross misconduct) it is essential that a proper process is followed. The disciplinary process broadly involves:
D4: Invitation to disciplinary meeting: potential written warning
D5: Invitation to disciplinary meeting: potential final written warning
D6: Invitation to disciplinary meeting: potential dismissal following previous warnings
D7: Invitation to disciplinary meeting: potential dismissal for gross misconduct
D18: Guide to conducting disciplinary meetings
D10: Written warning
D11: Final written warning
D12: Dismissal with previous disciplinary warnings
D13: Gross misconduct dismissal
D14: No further action
D8: Invitation to appeal meeting
D19: Guide to conducting appeal meeting
D15: Appeal outcome letter
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D4 – Invitation to disciplinary meeting (potential written warning)
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D5 – Invitation to disciplinary meeting – Potential Final Written Warning
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D6 – Invitation to disciplinary meeting – Potential Dismissal Following Previous Warnings
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D7 – Invitation to disciplinary meeting – Potential Dismissal for Gross Misconduct
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D18 – Guide to Conducting Disciplinary Meetings
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D10 – Written Warning
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D11 – Final Written Warning
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D12 – Dismissal with Previous Disciplinary Warnings
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D13 – Gross Misconduct Dismissal
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D14 – No Further Action
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D8 – Invitation to Appeal Meeting
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D19 – Guide to Conducting Appeal Meetings
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D15 – Appeal Outcome Letter
All employees are entitled to be accompanied to a meeting, that may result in disciplinary action (including dismissal) being taken against them, by either a colleague or Trade Union representative. Where the employer fails to allow the employee to be accompanied to a disciplinary meeting and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.
Often employers are found by Employment Tribunals to have investigated only the facts in support of the allegations, not those which support the employee. A fair dismissal needs to be based on a reasonable investigation and if the employer cannot demonstrate that this has taken place then the dismissal will be unfair.
The allegations as set out in the letter of invitation to a disciplinary meeting are of crucial importance. It is a principle of natural justice that an individual must be aware of the allegations against them in order to be able to properly defend themselves. Make sure that the allegations in the letter of invitation properly capture, in plain English, what it is they are accused of doing.
Where an individual may be dismissed following a disciplinary meeting they need to be warned in advance that this is a potential outcome. Informing someone that this is the case means that they cannot argue at a later point that they did not fully understand the seriousness of the matter, or the potential outcome of the disciplinary meeting.
Clearly, each case turns on its own facts, and there may be reasons why an employer imposes a lesser disciplinary sanction on a particular employee than it does on another. However, employers need to be very wary of being capable of justifying any differences in treatment. If the decision is not capable of justification then it may give rise to an unfair dismissal claim, and potentially some form of discrimination claim if the individual can show that the difference in treatment can be explained by their protected characteristic.
A dismissal which is unfair, either because the reason for dismissal is not fair, or the incorrect procedure was followed, can be expensive. Claims for unfair dismissal are very common in the Employment Tribunal and employees can be awarded as much as 12 months’ gross salary in compensation, plus a basic award calculated on their age and length of service. Failure to follow the Acas Code of Practice can also result in a 25% uplift in any compensation awarded. These awards relate to ordinary unfair dismissal claims only; other claims, such as whistleblowing or discrimination, attract much higher potential awards of compensation.
For further guidance on the appropriate disciplinary/dismissal process and useful documents please see:
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D1 – How to Guide – Disciplinary and Dismissal
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D2 - Disciplinary and dismissal flowchart
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D3 – Letter confirming suspension pending investigation
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D9 – Invitation to short server: potential dismissal
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D16 – Letter confirming dismissal: short server
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D20 – Letter of invitation to disciplinary investigation meeting
Yes. It is a common misconception that you cannot contact your employee whilst they are off sick, however employers should stay in contact with their staff to check on their well-being and to see if there is anything they can do to support them and facilitate a return to work.
Should the sickness absence continue then an employer will need to be in touch to manage the absence through the Sickness Absence Management policy, which may also include getting in touch to organise occupational health appointments with the employee. See:
S10a: Letter of invitation to Keeping in Touch meeting
S22: Sickness Absence Policy and Procedure
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S10a – Letter of invitation to Keeping in Touch meeting
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S22 – Sickness Absence Policy and Procedure
In this situation, if it is crucial that you speak with your employee (e.g. to progress an investigation) it might be advisable to obtain medical advice from either their GP or Occupational Health for them to comment on the individual’s fitness to attend such a meeting. You should ask whether the employee is well enough to engage in a conversation or meeting with you and if there is anything you can do to facilitate that discussion with the employee. It is going to be very difficult to progress the absence management procedure in the absence of engagement from the employee and seeking expert opinion on their ability to attend is often the best approach.
Yes. It is always good practice to arrange a return to work meeting with someone who has been off sick: whether that is a short term or long term sickness absence. That meeting gives you the opportunity to make sure that they are fit to return to work; whether they may need a phased return to work; whether they need any support or any adjustments making to help their ability to work and sustain attendance at work. It is also a good opportunity to find out if there are any underlying issues which you need to be aware of linked to their absence. See:
S6: Return to work interview form
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S6 – Return to Work Interview Form
An employer may allow someone to return to work whilst they still have a live fit note- there is no longer a mechanism by which a GP can sign someone back on as such. However, if your employee asks to return to work in those circumstances, you need to understand why. An employer has a duty to protect their employee’s health and safety and it is likely to be appropriate to seek further medical advice and/or carry out a risk assessment before allowing someone to return prior to the expiration of their fit note. It the employee refuses to agree to this then the employer is under no obligation to allow them to return until their fit note expires.
Yes BUT only if you have a genuine reason to do so and that reason is not because of their disability or because of something arising out of their disability and you have complied with your duty to make reasonable adjustments.
For example, you cannot dismiss someone who is unable to do their job because of their disability without having first investigated whether any reasonable adjustments could be made to enable them to do their job.
We recommend taking specialist advice in those circumstances as dismissals involving disabled employees may carry a high degree of risk.
Consult your Managing Sickness Absence policy in the first instance. This should give you guidance. If you do not have a policy or if the policy is not clear, the first step you will need to take is to investigate the reason why the employee is off work; how long they are likely to continue to be off work; whether they are any steps that can be taken to enable the employee to return to work; will the employee be able to return to work after medical intervention; what is the impact on the business and the other staff of the employee’s continuing absence?
Once you have investigated these issues which must include speaking to the employee in question and is likely to involve seeking a medical advice, you can then consider the options. This may include taking steps to support the employees return to work, setting timescales for review or possibly dismissal if there is no evidence that the employee will be able to return to work in the near future. The individual should be encouraged to participate in this process as much as possible.
Prior to dismissing an individual for long term sickness absence you should invite them to a formal meeting, warning that the outcome may be the termination of their employment. The usual rules on the employee having notice of any meeting, being able to consider all the evidence and being represented apply.
We have a range of letters to support you in this situation, please see:
S3: Letter requesting employee consent to medical report
S4: Medical consent form
S5: Letter to GP/Consultant requesting medical report
S7: Invitation to meeting to discuss medical report
S11: Invitation to long term sickness absence meeting(s)
S12: Invitation to final long term sickness absence meeting
S23: Guidance note: conducting long term sickness absence meeting(s)
S24: Guidance note: conducting final long term sickness absence meeting (potential dismissal)
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S3 – Letter Requesting Employee Consent to Medical Report
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S4 – Medical Consent Form
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S4 – Medical Consent Form
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S5 – Letter to Doctor Requesting Medical Report
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S7 – Invitation to Meeting to Discuss Medical Report
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S11 – Invitation to Long Term Sickness Absence Meeting(s)
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S12 – Invitation to Final Long Term Sickness Absence Meeting
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S23 – Conducting Long Term Sickness Absence Meeting(s)
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S24 – Conducting Final Long Term Sickness Absence Meeting (Potential Dismissal)
Where an individual has high levels of short term sickness absence caused by a disability then employers will need to take the reason for their absence into account. You do not have to ignore disability related sickness absences altogether when managing someone’s sickness absence, however you do need to consider reasonable adjustments in allowing more absences prior to taking formal action than you would for an employee who is not disabled. Each case is different so we would recommend taking legal advice.
First, do not jump to a conclusion that being at a party means that their illness is not genuine. A person’s illness may not affect them at all times. Sometimes attending social events can be part of a person’s recovery. Of course this depends on the what the illness is.
Before dismissing someone’s illness as not being genuine, we would suggest making enquiries of the individual concerned and seeking advice from a medical expert if you are not convinced by the response.
There is no right or wrong answer to this.
If you have a policy in place, this should give you guidance on the process you have to follow before dismissing someone for their sickness absence. For short term absences the employer would usually be expected to issue a series of warnings before getting to the dismissal stage. The length of time absence can be sustained very much depends on the reason for their absence, the likelihood that they will be able to return to work and the impact on the business of their absence. See:
S1: How to Guide: managing sickness absence
S2: Flowchart
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S1 – How to Guide – Managing Sickness Absence
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S2 - Flowchart of sickness absence process
Yes. You will need to investigate why that person is taking a lot of short term sickness absence to make sure that there is no underlying problem you need to be aware of. You will need to evidence what the impact of their absence has had on your business.
You will also be expected to have given the employee warnings that if their attendance does not improve, it could result in their dismissal. See:
S13: Invitation to short term sickness absence meeting (Stage 1)
S14: Invitation to short term sickness absence meeting (Stage 2)
S15: Invitation to short term sickness absence meeting (Stage 3)
S25: Guidance note: conducting short term sickness absence meetings
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S13 – Invitation to Short Term Sickness Absence Meeting (Stage 1)
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S14 – Invitation to Short Term Sickness Absence Meeting (Stage 2)
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S15 – Invitation to Short Term Sickness Absence Meeting (Stage 3)
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S25 – Conducting Short Term Sickness Absence Meetings
Yes they can. It may also help with their recovery. The employee will still need to obtain your approval to take holiday.
Yes, please see below for further documents to help you with the process:
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S8 – Letter informing employee of reduction/cessation of contractual sick pay
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S9 – Letter informing employee of cessation of SSP
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S10 – Letter regarding expired fit note
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S16 – Invitation to appeal meeting
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S17 – Termination of employment (long term sickness absence)
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S18 – Written warning for short term sickness absence (Stage 1)
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S19 – Final written warning for short term sickness absence (Stage 2)
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S20 – Termination of employment for short term sickness absence (Stage 3)
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S21 – Appeal outcome letter
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S26 – Appeal meeting guidance
It is a complaint, concern or problem raised by a member of staff. It can cover anything from a complaint about a colleague and the way they have been treated, to a complaint about unequal pay or an unfair process.
A grievance can also cover a complaint of bullying and harassment and discrimination although many organisations have a separate policy for handling these concerns.
No. A grievance can be a verbal complaint made to someone’s manager. Ideally, however, you would ask your member of staff if they want to put their grievance in writing so that there is a record. If a grievance is put in writing, it does not prevent an informal approach being taken if appropriate.
No. In many cases it is appropriate to deal with a grievance informally, particularly where it has been a one off or minor incident. Speaking to the parties involved on an informal basis can often diffuse the situation and enables the parties to see the other’s point of view.
If the informal approach does not resolve the issue then the next step is to use the formal process. You should also use the formal process where the incident is more serious, or there have been a number of incidents, or the aggrieved insists.
If you have a grievance policy it will also provide guidance on the approach to follow.
For further guidance on the process employers need to follow see:
Flowchart: Grievance
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G2 – Grievance process flowchart
It is not a mandatory requirement for employers to have a grievance policy in place, but it can be extremely helpful when dealing with such matters as it sets out what is expected of the employee and employer in these situations. It is crucial that all grievance policies incorporate the provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures as a minimum:
https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html
For a compliant policy please see:
G9: Grievance Policy and Procedure
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G9 – Grievance Policy and Procedure
This should be someone who is independent to the issues. Ideally it should be the direct line manager of the complainant. If the grievance is about that line manager then it should be their line manager or someone more senior.
If you have a small business where there is no one truly independent then you could consider asking an external person from specialist investigation company or with an HR background to undertake the investigation.
All employees are entitled to be accompanied to a grievance hearing, by either a colleague or Trade Union representative. There is no right to be accompanied to a grievance investigation meeting. Where the employer fails to allow the employee to be accompanied to a grievance hearing and the individual subsequently brings a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation. See:
G3: Acknowledgement of grievance and invitation to grievance meeting
G7: Grievance meeting guidance
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G3 – Acknowledgement of Grievance and Invitation to Grievance Meeting
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G7 – Grievance Meeting Guidance
Yes.
It is not unusual for someone who is subject to a disciplinary or performance management process, for example, to raise a grievance to say that they have been treated unfairly. You have three options:
The approach you take will depend on a number of factors such as; is the aggrieved saying that the disciplinary process itself is unfair which may mean that their grievance needs to be investigated independently? You would have to be mindful of any delay to the disciplinary process if you choose to pause it whilst the grievance is investigated.
Or are they saying that, for example, their manager has treated them unfairly which is why they have behaved as they have, in which case it may be suitable to have a combined investigation and grievance process.
Or is it a more general grievance about how they have been treated which would have no effect on the outcome of any disciplinary process? In which case the processes could be kept separate.
Yes although the investigation might be limited if you are unable to clarify the issues with the person who has raised the grievance.
Potentially yes.
If the individual raised the grievance whilst they were still employed then you should investigate their concerns particularly as it may be the basis for an Employment Tribunal claim.
If they raised the grievance after they have left your employment you will need to consider the risk that they may bring a claim arising out of the issues in the grievance and if that claim can be brought in time.
If the grievance raises serious issues about bullying and harassment by management or a group of employees, for example, it could be necessary to investigate those concerns particularly if there is a potential for impact on the individuals who remain.
Often employers are found by Employment Tribunals to have not taken a balanced approach to the investigation and only investigated the facts in support of the allegations, not those which support the employee.
Allegations in a grievance can be complex and can cover a long period of time. It is crucial that the investigator is clear about what allegations need to be investigated. Ideally the scope of the investigation should be agreed with the aggrieved at the outset.
Raising a grievance is often a very stressful time for the individual making the complaint and the individuals being investigated. If the investigation is handled poorly, it can badly damage the employment relationship. Investigations do not always run to plan and there can be delays. It is very important to keep the line of communication open with all those involved and provide updates on the progress of the investigation particularly if there is a delay.
Clearly, each case turns on its own facts, but employers need to be very wary of being capable of justifying any differences in treatment. If the decision is not capable of justification then it may give rise to a constructive unfair dismissal claim, and potentially some form of discrimination claim if the individual can show that the difference in treatment can be explained by their protected characteristic.
There is no legal requirement to do so and organisations often make the decision not to because of the sensitive nature of the allegations and information provided.
Careful consideration will need to be given to any request for a copy of the notes. Remember that someone can make a subject access request and obtain the notes in that way.
For further guidance on the appropriate grievance process and useful documents please see:
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G1- How to Guide – Grievances
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G2 - Grievance process flowchart
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G4 – Letter of invitation to appeal meeting
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G5 – Grievance outcome letter
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G6 – Appeal meeting outcome letter
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G8 – Grievance appeal meeting guidance
Employers are not legally required to have any performance policies in place although the ACAS Code of Practice must be followed when dismissing an employee, see:
https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures
However, it is useful to have formal performance procedures in order to provide consistency and fairness and so staff members understand what is expected of them.
P13 Performance improvement policy and procedure
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P13 – Performance Improvement Policy and Procedure
Regular appraisals, in conjunction with regular informal meetings, are helpful in identifying any training needs and areas of improvement before they become problematic. However, if performance does not improve then it may be appropriate to use the performance policy. For further guidance please see:
P1: How to Guide – Managing Poor Performance.
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P1- How to Guide – Managing Poor Performance
Employees with less than 2 years’ do not have protection from unfair dismissal. Therefore it is possible to dismiss a short serving employee for poor performance issuing any previous formal warnings. However, some employment claims, such as discrimination claims, do not require the employee to have a minimum level of service, and therefore following the normal performance process may be a safer option. Furthermore, recruiting and training staff can be time consuming and costly so it is usually a good idea to raise the problem with the employee to give them an opportunity to address this before considering dismissal.
Our HR Protect performance improvement policy, P13: Performance Improvement Policy and Procedure applies to all employees but expressly states that employees with less than 2 years’ service can be dismissed without any previous warnings.
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P13 – Performance Improvement Policy and Procedure
Normally this would involve inviting the employee to a meeting to discuss their performance, setting out your concerns and then setting a plan for improvement. If the required improvements are not made formal meetings are arranged, resulting in performance improvement warnings and ultimately, if there is no/insufficient improvement, the employee is dismissed. For a clear visual explanation of the process please refer to:
P2: flowchart of performance management process
The performance improvement process broadly involves:
P3: Invitation to stage 1 performance improvement meeting
P7: Letter of invitation to short serving employee potential dismissal for poor performance
P15: Guide to Conducting Formal Performance Improvement Meetings
P8: Written warning (poor performance)
P12: Termination of Employment Short Serving Employee (Poor Performance)
P4: Invitation to stage 2 performance improvement meeting
P9: Final Written Warning (Poor Performance)
P5: Invitation to stage 3 performance improvement meeting.
P10:Termination of Employment (Poor Performance)
P9: Invitation to Appeal Meeting
P16: Guide to Conducting Appeal Meeting
P11: Appeal Outcome Letter
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P2 - Flowchart of performance management process
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P3 – Invitation to stage 1 performance improvement meeting
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P7 – Letter of invitation – short serving employee – potential dismissal
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P15 – Guide to Conducting Formal Performance Improvement Meetings
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P8 – Written Warning (Poor Performance)
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P12 – Termination of Employment – Short Serving Employee (Poor Performance)
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P4 – Invitation to stage 2 performance improvement meeting
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P9 – Final Written Warning (Poor Performance)
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P5 – Invitation to stage 3 performance improvement meeting
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P10 – Termination of Employment (Poor Performance)
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P6 – Invitation to Appeal Meeting
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P16 – Guide to Conducting Appeal Meeting
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P11 – Appeal Outcome Letter
If the incompetence was wilful then it should be dealt with as misconduct, and if this is gross misconduct then the individual can potentially be safely dismissed for this one-off act. However, assuming that it was not intentional, then it will be difficult to dismiss for a single act. This is because the purpose of a performance improvement policy is to support the employee to improve. Only if their performance does not improve can dismissal be justified. Despite this, in very rare cases dismissal can be justified if the incompetence had particularly serious or hazardous consequences.
This depends on the circumstances. If there is a pattern of the employee’s performance dipping as soon as the warning period has ended it may be reasonable to extend the warning period. However, if the underperformance is suspected to be intentional it may be better to deal with it as misconduct.
Yes, the right to be accompanied, which applies to all employees, applies to performance meetings. This is because any action which can result in a disciplinary action, including dismissal, triggers the right to be accompanied and so the employee has the right to be accompanied by either a colleague or Trade Union representative. Where the employer fails to allow the employee to be accompanied to a disciplinary meeting and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.
No, but all employees and workers must be given a statement of their terms and conditions on or before the employee’s first day of work. This statement, also known as a ‘section 1 statement’, must contain the information specified by section 1 of the Employment Rights Act 1996, including the names of the parties, the date the employment started etc. Further details of what needs to be included in the statement can be found at: https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars
Failure to provide a complete and accurate section 1 statement can permit an employee to ask a tribunal to determine what the appropriate term and conditions and, in some circumstances, permit an employee to issue a claim worth up to 4 weeks’ wages.
We recommend that the section 1 statement is provided by way of a written contract of employment as the contract can include additional terms. These terms can provide clarity for the parties and provide additional rights and responsibilities which are relevant to the particular role. For example, a contract for a senior employee would be different to a junior employee as it may contain a company car clause, post-employment restrictions etc. which are less likely to be needed for a junior employee.
For further guidance on contracts of employment see:
C1: How to Guide: Contracts of employment.
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C1- How to Guide – Contracts of Employment
You will need to consider the employee’s seniority, whether their role is permanent, full-time or part-time, zero hours and how they will be engaged e.g. as an employee worker, apprentice or consultant and whether you require the employee to be bound by any post-employment restrictions.
For a full list of the types of contracts see: C2: Which contract to use?
The full list of contracts which are available to HR Protect clients is available below:
C3: Contract of employment: standard
C4: Contract of employment: part time
C5: Contract of employment: fixed term
C6: Contract of employment: term time only
C7: Contract of employment: senior (with restrictions)
C8: Contract of employment: apprenticeship agreement (English approved standard)
C9: Contract of employment: apprenticeship agreement (Framework)
C10: Contract of employment: casual worker agreement (zero hours)
C11: Consultancy agreement (individual): for use where there are Group Companies
C11a: Consultancy agreement (individual): for use where there are no Group Companies
C12: Consultancy agreement (limited company): for use where there are Group Companies
C12a: Consultancy agreement (limited company): for use where there are no Group Companies
C13: Contract Questionnaire
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C2 – Which contract to use
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C3 – Standard Contract of Employment
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C4 – Part Time Contract of Employment
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C5 – Fixed Term Contract of Employment
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C6 – Term Time Only Contract of Employment
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C7 – Senior Contract of Employment (with Restrictions)
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C8 – Apprenticeship Agreement (English Approved Standard)
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C9 – Apprenticeship Agreement (Framework)
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How do I know what type of contract to use?
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How do I know what type of contract to use?
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How do I know what type of contract to use?
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How do I know what type of contract to use?
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How do I know what type of contract to use?
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C13 – Contract Questionnaire
Yes, zero hour contracts are still permitted but since May 2015 exclusivity clauses i.e. clauses which prevent a worker from working for someone else, have been prohibited and rendered unenforceable. A legally compliant zero hours contract can be found at:
C10: Contract of employment: casual worker agreement (zero hours)
Once the terms of employment have been agreed they are legally binding and can only be changed in limited circumstances. Often the easiest way to change an employee’s terms is to get the agree to the change. Where the change is beneficial, for example, a pay increase, the employee will be happy to agree to the change. However, sometimes an employer may seek changes that the employee is not happy with. In those circumstances, the employer may be able to rely on the contract if it permits the change or if necessary, or it may have to go through a formal process of consultation, or make a unilateral change. Both of these latter options bring risk and you should speak to your legal advisor in these circumstances. For further information please see:
C1: How to Guide: Contracts of employment
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C1- How to Guide – Contracts of Employment
The length and extent of any restrictions will depend on the employee’s role. Any restriction has to go no further than necessary to protect the employer’s legitimate business interests. In general terms, the more senior an employee, the more reasonable any restriction is likely to be. Post-termination restrictions can be difficult to rely upon so it is important that the restrictions are bespoke to the individual and carefully drafted and updated if necessary when an employee is promoted or changes roles. For an example contract of employment which contains restrictions please refer to:
C7: Contract of employment: senior (with restrictions)
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C7 – Senior Contract of Employment (with Restrictions)
Anyone over the age of 16 who is not in full time education, whether they are a current employee or new to the business, can become an apprentice.
Employers who employ those under the age of 18 must assess the risk to such individuals from a health and safety point of view before they start employment, taking into account their inexperience, lack of awareness of risks and immaturity.
The first and perhaps most important thing to understand when considering employing an apprentice is to make sure that the individual is engaged on the correct type of contract. Using the wrong contract is the main pitfall for employers to be wary of; it can make dismissing an apprentice, even for gross misconduct, high risk.
Most sectors now have approved apprenticeship standards that the apprentice will work towards. To check the list of sectors for which approved standards have been produced, or to see an example of the standards and required learning outcomes you should visit the Institute for Apprenticeship’s website: https://www.instituteforapprenticeships.org/apprenticeship-standards
Where a standard does not exist for a particular role then there may be an apprenticeship framework in place. The government are in the process of replacing these therefore standards should be used where possible.
Apprenticeship agreements in England have to be in a prescribed form and satisfy certain conditions. If you engage an apprentice but do not do so in the prescribed form or if an approved standard does not exist for your sector then the apprentice will be engaged under a ‘contract of apprenticeship’, meaning that they are a traditional apprentice. Such individuals can only be safely dismissed where it has become impossible to train them.
For a compliant contract using an approved apprenticeship standard see:
A2: Contract of employment: apprenticeship agreement (English approved standard)
Or where a framework is still in place and no approved English apprenticeship standard has been produced see:
A3: Contract of employment: apprenticeship agreement (framework)
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A2 – Apprenticeship Agreement (English Apprenticeship Standard)
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What type of contract should an apprentice be given?
The employer’s responsibility to ensure the delivery of the training element of the apprenticeship is the main difference between employers’ responsibilities towards apprentices and other employees.
Apprentices must spend at least 20% of their time on off-the-job training. When you take on an apprentice you should select a training provider from the register of apprenticeship training providers and agree a price for the cost of training and assessment. On completion of the apprenticeship the apprentice must pass an assessment to demonstrate that they can perform the relevant role to the standard set by the relevant apprenticeship standard or framework.
You can select and compare training providers and view apprenticeship standards/frameworks on the apprenticeship service on gov.uk: https://www.gov.uk/guidance/manage-apprenticeship-funds
Aside from ensuring the delivery of appropriate training, employers also need to have:
An employer with a pay bill of over £3 million a year you must pay the apprenticeship levy regardless of whether they employ an apprentice.
The levy is currently 0.5 per cent of a company’s pay bill. It is deducted through the PAYE each month and paid into a fund which is reinvested in apprenticeship training. For every £1 contributed by employers the government adds 10p. If you are a levy paying employer you can manage and access levy funds and your apprenticeship program by using the online apprenticeship service:
You can take the same approach to performance management, misconduct, dismissal, etc. with an apprentice as you would any other employee provided they are engaged on the correct contractual documentation. Similarly, apprentices are entitled to holiday pay, sick pay and maternity/paternity/adoption/shared parental leave subject to the usual qualifications.
However, if an apprentice is working under a contract of apprenticeship then dismissing them before their fixed term contract ends is high risk. See can I dismiss an apprentice during their apprenticeship below.
If the apprentice is employed under an apprenticeship agreement you can terminate their employment by following the same procedures as you would with any other employee in the business.
If the company will not be employing the apprentice after the completion of their apprenticeship this is likely to constitute a dismissal (regardless of the fact that their fixed term has expired). You should therefore treat the expiry of their fixed term like any other dismissal, i.e. be able to show that one of the five potentially fair reason for dismissal apply, most likely SOSR, and be able to demonstrate that you followed a fair procedure in relation to the dismissal. Failure to do so may give grounds for an unfair dismissal claim. Although apprentices who have worked for the company for less than 2 years would only be able to bring a claim in limited circumstances.
If the apprentice is employed under a contract of apprenticeship then dismissing them before the end of their apprenticeship is high risk unless it can be shown that they are essentially unteachable. An apprentice whose apprenticeship ends early could be entitled to claim sums in respect of loss of earnings, loss of training and loss of future career prospects. Please speak to your legal advisor for further advice in these circumstances.
For further information see:
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A1- How to guide – Apprenticeships
A redundancy situation exists where there is a reduction or disappearance in the requirement for a particular kind of work to be performed. This can either be at a particular workplace, or in the business generally. This could mean that a workplace is closing entirely, or just that the business intends to reduce headcount in a certain role as their business requirements for the work performed by that role have declined.
Frequently, redundancies are made as part of a cost-cutting exercise in response to a downturn in work. However, it is not necessary for a business to be losing money in order for a redundancy situation to exist. A redundancy situation can exist in a business which is making profit if there is a reduction in the need for a particular role.
Employers should also be aware that non-renewal of a fixed-term contract counts as a dismissal for employment law purposes and that it will normally be by reason of redundancy. Fixed-term employees with more than two years’ service may therefore be entitled to a statutory redundant payment if their fixed-term contract is not renewed, and employers should still consider how to follow a fair process in relation to the end of this contract (for example exploring with the employee whether there are any alternative vacancies which may be of interest to them).
Statutory redundancy payments are calculated based on a formula which uses length of service (capped at 20 years), age and weekly pay (currently capped at £643). Employees need a minimum of two years’ continuous employment to be entitled. There is a useful Government calculator for working out redundancy payments, which can be accessed here:
https://www.gov.uk/calculate-your-redundancy-pay.
Some employers also operate ‘enhanced’ redundancy schemes, where employees’ redundancy payments are calculated using a more generous formula.
Employees who are being made redundant are also entitled to be given notice in accordance with their contract of employment (or statutory minimum notice, whichever is higher). An employee can be required to work during this notice period as usual, although they have the right to a reasonable amount of paid time off to look for alternative employment (for example to attend job interviews). In practice, some employers prefer to make a payment in lieu of notice in these circumstances in line with the employee’s contract of employment.
A ‘selection pool’ is the group of employees who may be selected for any particular redundancy. For example, if a business has two cleaners and proposes to reduce that number to one, the selection pool would normally be the two cleaners.
If an employee is in a stand-alone role, they will generally be in a ‘pool of one’ on the basis that they are the only person who does the role which is at risk of redundancy.
Employers will often be asked to consider ‘bumping’ by employees who are at risk of redundancy. This means considering whether it would be reasonable to move the ‘at risk’ employee into another role in the business and make that post-holder redundant instead. This is a particularly tricky area which needs to be considered carefully if it arises. Whether it is potentially appropriate will generally depend on factors such as the level of similarity between the roles, the respective levels of seniority, whether there has been any cross-over or interchange between the roles previously and the respective length of service of the employees in question.
Identifying the correct selection pool is vital, as it is one of the aspects of a redundancy process which an Employment Tribunal will scrutinise closest. Each potential redundancy situation should be considered on its own merits when it comes to devising the selection pool. If the employee raises any dispute around the selection pool which has been used at a redundancy consultation meeting, you must take time to consider this carefully. If you disagree with the employee’s view, you should give them a reasoned explanation as to why you disagree as part of the consultation process.
Once you have identified the appropriate selection pool (see above), you need to consider whether selection from within the pool is required. If there is a pool of one or if you are proposing to remove a role entirely you won’t need to do a scoring exercise as all employees in the pool will be made redundant. Employers may also wish to ask whether any employees within the pool wish to volunteer for redundancy, in which case there may not be a need to make compulsory redundancies.
If you do need to carry out a selection exercise to determine which of the employees in the pool are made redundant, you will need to use a form of scoring matrix. A scoring matrix should focus on objective scoring criteria which can be measured against statistics, records and documents.
For an example selection matrix please see: R13: Example selection matrix
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R13 – Example selection matrix
This depends on whether the employee is reasonably capable of performing any vacancy which exists. If they do not have the necessary skills or experience, it will not be suitable and therefore you do not need to offer it. However, if they are capable of performing this vacancy, they are entitled to be offered it, in preference to any external candidate, or any internal candidate whose role is not at risk. If there is more than one redundant employees who wishes to take the vacancy, they should all be considered. You can either use a scoring matrix or a competitive interview process to select the successful candidate.
Where an employee is offered (and accepts) a vacancy, there is a statutory four-week trial period where both parties can assess whether the role is suitable. The employee can choose to resign within this trial period and claim a statutory redundancy payment if they wish.
Where an employee unreasonably refuses an offer of suitable alternative employment, they are not entitled to a statutory redundancy payment. However, case law is very strict on when an employer can withhold a redundancy payment on this basis, and specific advice should be sought before doing so.
The statutory right to be accompanied by a colleague or a trade union representative does not apply to redundancy consultation meetings. However, employers generally allow this as a Tribunal might consider that the consultation process is unfair if the employee is not allowed to bring a companion.
The redundancy process which employers should generally follow is:
R13: Example selection matrix
R3: At risk letter (no selection)
R4: At risk letter (with selection)
R5: Invitation to further consultation meeting(s)
R15: Guidance on conducting first redundancy consultation meeting
R16: Guidance on conducting subsequent redundancy consultation meeting(s)
R8: Confirmation of alternative employment
R7: Confirmation of redundancy.
R6: Invitation to appeal meeting
R9: Appeal outcome letter
R17: Guidance on conducting redundancy appeal meeting
For further guidance on the formal process employers need to follow see:
R2: Flowchart – Redundancy.
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R13 – Example selection matrix
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R3 – At risk letter (no selection)
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R4 – At risk letter (with selection)
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R5 – Invitation to further consultation meeting(s)
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R15 – Guidance on conducting first consultation meeting
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R16 – Guidance on conducting subsequent redundancy consultation meeting(s)
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R8 – Confirmation of alternative employment
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R7 – Confirmation of redundancy
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R6 – Invitation to Appeal Meeting
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R9 – Appeal Outcome Letter
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R17 – Guidance on conducting redundancy appeal meeting
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R2 - Redundancy flowchart
At the point that an employee is placed ‘at risk’ of redundancy, it is vital to remember that it is still a proposal. No matter how unlikely the employer may consider it is that the redundancy can be avoided, they need to approach the consultation with an open mind as to whether the redundancy could be avoided. If the decision to make the employee redundant has been conclusively determined before consultation, this is very likely to make the dismissal unfair.
It may sometimes be tempting for an employer to rush through the consultation process, thinking that the outcome is obvious. However, this runs the risk of the dismissal being found to be unfair if the employee isn’t given a proper opportunity to ask questions and put forward counter-proposals. Where employees have alternative suggestions, employers should give careful though to these and respond properly, even if they seem obviously unworkable to the employer.
The legal position and practicalities around redundancies and employees on maternity leave are tricky to manage and cause problems for many employers. Key points to be aware of are:
The collective consultation obligations apply where an employer is proposing to make 20 or more redundancy dismissals at an establishment in any 90-day period. The consultation requirements are strict and there are severe penalties where an employer doesn’t fully comply.
If you recognise a trade union in respect of the potentially redundant employee(s), you will need to follow any consultation process which you have agreed with them even if there are fewer than 20 redundancies in total.
For more information on collective consultation, please refer to our FAQs on Collective Consultation.
For further guidance and useful documents on redundancies please see:
Associated resource
R1 – How to Guide – Redundancy
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R10 – Confirmation of successful trial period
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R11 – Confirmation of redundancy following unsuccessful trial period
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R12 – Confirmation redundancy avoided
The purpose of an appraisal is to:
Appraisals provide an opportunity for employees to learn by reflection and take ownership by proactively evaluating their performance. There should be no surprises for the employee i.e. if there are any concerns with an employee’s performance, these should be brought to attention as they arise, and not held back until the employee’s next appraisal.
No, it is not a legal obligation to carry out an appraisal, but given the clear benefits to doing so set out above, failing to do so is a missed opportunity and may lead to issues building up and not being resolved.
There are no legal or technical requirements on how an appraisal should be conducted. An appraisal can be kept informal, and approached as a productive conversation between employer/employee. There is no set invite requirement to invite an employee to an appraisal – an email with a diary appointment will suffice.
An appraisal should be a two-way conversation; an opportunity for the employer to feed back on the employee’s performance, but also an opportunity for the employee to feed back to the employer with any issues they may have that they wish to raise.
There is no set time frame or frequency for conducting appraisals. Most employers use 12 monthly appraisals, but other employers find that these are more effective when conducted more frequently, for example every 6 or 3 months.
It is important to set manageable expectations for how often you conduct appraisals, if you determine that appraisals should take place on a 3 monthly basis then this is what should happen; if in reality this is not achievable then it would be much better to set a time frame of once every 12 months.
Regardless of how often appraisals are conducted, it is important to bear in mind that regular appraisals are only one part of the performance management process. In particular if appraisals are conducted on a 12 monthly basis you should make sure you have a mechanism to discuss performance issues as they arise, such as regular team or one to one meetings, as appropriate.
It is still important to plan and prepare for an appraisal. This could include reviewing training records, feedback forms/verbal feedback, financial reports, and any other criteria used within your business to measure employee performance. It is also useful to have an understanding of the overall performance of the sector/team the employee being appraised works in, in order to be able to discuss how the employee’s performance impacts on the team’s success as a whole, and how any changes in demand from the team might result in certain areas of development for the employee.
Planning before an appraisal will enable the employer to go in with feedback on their expectations and standards, be able to suggest areas for improvement, and provide the employee with an effective appraisal meeting.
An appraisal should usually be conducted by the employee’s immediate supervisor or line manager, where appropriate. If the employee does not have a specific manager or supervisor, then another member of staff senior to the employee should conduct the appraisal. If the employee being appraised is senior, such as a director, then their appraisal should be carried out by the management board or similar. Notes should be taken during the appraisal as these may need to be referred to at a later point.
An effective appraisal should be conducted in 3 parts:
Using the information collated in preparation for the meeting, the appraiser should feed back to the employee on their performance against standards and expectations. This can often be an emotive part of the meeting, particularly if it is not all positive. Appraisers should remain calm and measured and provide measurable information/examples to the employee in relation to their performance.
Ensure you raise both positive and negative feedback in the meeting. It can be easy for employers to be blindsided by concerns in an employee’s performance, but if there is something positive (e.g. an achievement, good feedback from a customer) this should be raised and acknowledged to the employee.
Inform the employee of what is expected of their sector/team in the coming months in terms of deliverables and expectations. Ensure the employee understands any strategic/operational/business changes that may be happening that may impact their work.
Set out clearly the employee’s individual objectives/targets that you would like them to focus on to improve their performance. These could be financial, behavioural or skills based. The employer should also set a timescale within which they would reasonably expect the employee to meet those objectives/targets.
The employer should be prepared to discuss any personal development areas that an employee may suggest themselves. If the employer agrees with what the employee has suggested, the employer should include them on the appraisal form and agree a timescale with the employee within which they reasonably expect the development to be made.
Once the employee fully understands how they are performing and what expectations have been set, the employer should then make suggestions as to how the employee can actually meet those objectives/targets.
The employer should be open to suggestions by the employee, and open to accepting that some input may be required by the employer to help the employee meet their targets (e.g. providing more training, more individual support).
Appraisals are often a good opportunity to discuss long term career goals with the employee. By discussing with employees what their career aspirations are this can make them feel more engaged and more likely to stay with the business in the longer term.
Offer the employee the opportunity to raise any other issues or discussion points they wish to make. The employer should listen to these and deal with them in an appropriate manner. This may require a follow up meeting, depending on what is raised.
Summarise the plan of action/next steps.
It is important to keep a clear record of the appraisal, A copy should be provided to the employee and a copy should be kept on the employee’s file.
A key reason why it is crucially important to monitor performance and tackle it when it falls below what is required is that this is the best way to support the employee to make the necessary improvements before it becomes a more serious issue.
However, if the employee does not/cannot make the necessary improvements then the next stage would be a formal performance management process, see further information on our Performance management FAQ page.
For further information see:
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APR1: How to Guide: conducting appraisals
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APR2 – Employee Appraisal Form
Collective consultation obligations apply where an employee is proposing to dismiss 20 or more employees as redundant at any one establishment within a 90-day period.
However, the definition of a redundancy dismissal for these purposes is wider than the test of whether the employee would qualify for a statutory redundancy payment. For example, it includes the following circumstances:
Where there is a trade union recognised for these purposes in respect of the workforce, the employer must consult with the trade union about the proposed redundancy dismissals.
Where there is a standard body of representatives in respect of the workforce (such as a Works Council), the employer should consult with them in the absence of a recognised trade union – but only if that body has authority to consult on behalf of the workforce about collective redundancies. Not all representative bodies can be said to have authority to consult on behalf of the workforce in these circumstances.
Where there is no trade union or appropriate standing body of representatives, the employer must arrange to hold elections for employee representatives. Similarly where there is a trade union or standing body which only represents a part of the workforce which is affected, the employer will need to arrange employee representative elections to cover the remaining workforce.
There are two key aspects to collective consultation: providing information to the appropriate representatives, and consulting about the proposed redundancies.
There is a prescribed list of information which is required to be given to the representatives at the very outset of the process. This requires employers to give extensive details of the proposals, the roles involved and the process which they intend to follow. This is generally given in a ‘section 188’ letter. Representatives will often request further information during the consultation process, and employers will generally be expected to provide this to enable meaningful consultation to take place unless there is a very good reason for not providing it.
The consultation aspect generally takes the form of several meetings between the employer and the employee representatives, who must also be given an opportunity to pass information to the individuals they represent. The consultation should cover a broad range of issues, such as whether the redundancies can be avoided or reduced in number, the applicable selection criteria to be used and the make-up of the applicable pools.
Collective consultation does not replace the need for individual consultation. Once the consultation process with the representatives has come to an end the employer then needs to conduct individual consultation meetings with those individuals at risk prior to issuing notice of redundancy.
No – this is a common misconception.
The law says that no redundancy dismissals can take effect within 30 days of the beginning of collective consultation (rising to 45 days where there are 100+ proposed redundancies). It is possible to conclude collective consultation, and individual consultation, provided that no notices of dismissal expire during this time.
However, employers should also guard against being seen to rush through the process and avoid an argument that they have not properly consulted and/or that some or all of the redundancy dismissals are unfair.
The main risk is that employers will be ordered to pay a ‘protective award’ if they are found not to have complied with their collective consultation obligations by an Employment Tribunal. Tribunals can make a ‘protective award’ of 90 days’ pay in respect of each employee, and this is not subject to the cap on a ‘week’s pay’ as other areas of employment law.
Furthermore, a failure to properly collectively consult may also give rise to a claim that one or more of the redundancy dismissals were not fair, and redundant employees may bring unfair dismissal claims on that basis.
Employers are also required to file a HR1 form at the outset of the process with the Government, providing certain details of the proposed redundancies. Failure to do so can actually constitute a criminal offence!
The basic principle of consultation is that it is approached with an open-minded and without any final decisions made regarding the redundancies. If employee representatives can show that the employer had already decided to proceed with the redundancies before consultation, this will almost certainly render any subsequent consultation process a sham. The duty to consult in a collective consultation situation generally arises much earlier than in a “standard” redundancy- the obligation arises at the point of the “proposal” to dismiss.
Most UK employers are not familiar with arranging representative elections, and many are therefore not sure where to start. Employers have some discretion over employee representative elections (such as how many representatives are required), but there are a number of strict rules and overriding principles which they must follow.
The process can be particularly challenging where some employees are out of the business (for example on long-term sick leave), as employers must ensure that all employees have a reasonable chance to participate in the elections.
Employers are sometimes tempted to try and rush elections as the 30-day clock won’t start ticking until the representatives are in place and have been given the required information. They risk sizeable protective awards if they do so in a way which doesn’t comply with collective consultation obligations.
Some of the information required to be provided by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is basic, such as the total number of the proposed redundancies and the specific roles which are at risk.
However, not all of the information is obvious by any stretch – for example, employers must provide details of their use of agency workers anywhere in the business. Although this may seem unimportant, a failure to provide this information is technically a breach of collective consultation obligations.
Collective consultation creates an extra layer of protection for employees; it does not remove their existing protection against unfair dismissal. Employers must still therefore consult with individual employees who remain at risk of redundancy following collective consultation, or risk unfair dismissal claims on the basis that they have not followed a fair procedure.
We have put together a toolkit of documents in order to assist you with this process, which are available for purchase and include:
For further information on the toolkit please contact us
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