FAQs

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

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

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.

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

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.

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.

Yes, we have a dedicated hub which answers a range of questions as a result of the current pandemic including questions around furlough. These questions can be found here.

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.  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

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

Before advertising a vacancy, a written job description for the role should be compiled. The job description should cover:

• the main purpose and objectives of the job;
• the place of the job holder in the organisational structure;
• the main tasks and responsibilities of the job holder; and
• any associated tasks.

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.

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.

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:

• Not complying with the time-limits;
• Not meeting the client prior to rejecting the request;
• Unreasonably rejecting the request/not having evidence to support the decision;
• Not using one of the eight permitted reasons to decline the request;
• Not allowing an appeal

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, please see the documents below:

Yes, please see the documents below:

Yes, please see the documents below:

Yes, please see the documents below:

Yes, please see the documents below:

Yes, please see the documents below:

Yes, please see the documents below:

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.

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

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.

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.

After identifying the applicant who is to be offered a job, a written job offer should be sent to the person, see:

• REC7: example offer letter – permanent post
• REC8: example offer letter – fixed term post

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.

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.

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.

For further information and useful documents on recruitment see:

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:

1. Direct discrimination;
2. Indirect discrimination;
3. Harassment;
4. Victimisation.

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:

1. that an actual or hypothetical colleague in the same circumstances as them, but without their protected characteristic, did not or would not have received the same treatment; and
2. that the less favourable treatment was consciously or subconsciously because of their protected characteristic.

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:

• An employee engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating their colleagues dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for their colleague.
• An employee engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, and the conduct has the purpose or effect of violating their colleagues dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for their colleague and because of their colleague’s rejection of or submission to the conduct, the employee treats them less favourably than they would have had they not rejected or submitted to the conduct.

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:

• Putting in place appropriate policies and procedures and drawing them to employees’ attention so that they understand what behaviour will and will not be acceptable;
• Providing training to all employees on the risks of a discrimination claim and what constitutes good and bad practice (please do not hesitate to contact us if you would like details of the training sessions that we can provide);
• Taking appropriate action, i.e. conducting a thorough investigation and putting corrective measures in place, in the event of concerns relating to a protected characteristic being raised; and
• If you are unsure whether any of your policies or practices may be discriminatory please contact us and we can advise on appropriate next steps.

For further information on discrimination in an employment setting and access to our Equal Opportunities policy see:

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

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

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:

• Conducting an investigation
• Inviting the employee to a meeting, setting out the allegations against them, see:

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

• Hold the meeting with the employee and see what they have to say, see:

D18: Guide to conducting disciplinary meetings

• Decide on an appropriate sanction, confirming this in writing, see:

D10: Written warning

D11: Final written warning

D12: Dismissal with previous disciplinary warnings

D13: Gross misconduct dismissal

D14: No further action

• If someone exercises their right of appeal then invite them to an appeal meeting, see:

D8: Invitation to appeal meeting

• old the appeal meeting and decide on an outcome to the appeal:

D19: Guide to conducting appeal meeting

D15: Appeal outcome letter