FAQ

SMP is an entitlement for pregnant employees provided that she has at least 26 weeks’ continuous service at the “Qualifying Week” (QW). This is at the start of the 15th week before the “Expected Week of Childbirth” (EWC).

Whether you will have to continue paying her SMP will depend on when you plan on making her redundant. If she is going to be dismissed after the start of the QW, you’ll still have to pay SMP even if you haven’t started to pay it.

If she starts working for an employer after the birth that she did not work for at the time of her QW, you won’t have to pay her SMP any longer.

Generally, unless there is a contractual entitlement to a pay rise, you are not legally obligated to give one. It is important to bear in mind if there are any verbal agreements to this effect, any clauses in the employee’s contract of employment or whether there is some other binding agreement (for example, with a trade union), which may mean you are obligated to give a pay rise.

Some employers often stipulate in the staff handbook that there will be an annual salary review for employees, but of course this is not the same as a pay rise! It simply means that the employer will look at the financial circumstances to see if a pay rise could be given. It is quite rare for an employer to have a contractual obligation to a pay rise unless bound by other circumstances, for example a trade union collective agreement or a pay award that had been made previously, for example set over a two or three year period.

Other factors to be considered are equal pay issues that may need to be addressed, for example between men and women who do the same or broadly similar work, and whether there are any other discriminatory issues to do with your pay scales as they stand and market forces. You should also think about any staff retention issues that may arise if your employees feel underpaid, and therefore undervalued.

If it states in their contract that under garden leave, they are not allowed to work for anyone else, if they then did, they would be in breach of contract. As part of a breach of contract action, you may be able to obtain an injunction to prevent the employee working during their notice period, although the cost of doing so may prevent you. If you want to seek legal action, it should be taken as soon as possible in this case. You would also qualify for damages for breach of contract to compensate you for any loss you suffer as a result of the breach.
Another easier option is to withhold their pay and if you wanted to, take disciplinary action to dismiss them for gross misconduct on the basis that their breach of contract was fundamental. Any action taken would probably depend on the length of the notice period and how senior the employee in question is. By stopping pay, if the employee is working elsewhere, they may bring a breach of contract claim against the employer, which you can then counter claim for their breach.

The fatigue caused by regularly working long periods of overtime costs the UK between £100 and £200 million pounds a year in work-related accidents alone. As well as the additional costs of paying for sick leave when an employee has burnt themselves out, or the agency staff required to cover their position. There are a number of things you can do to ensure people don’t become reliant on overtime:

1. Catch them early. Overtime dependents know how to influence the amount of overtime they do and can abuse the system, such as working all weekend, but calling in sick on Monday. Or being available on premium paying Sunday but not Saturday. Have a look at work patterns and where there are too many working in hours that are not peak demand.
2. Don’t make overtime bonus-time. Many companies incentivise long hours, which encourages people to stay at work longer, especially during periods of economic instability. Ensure you don’t fall into this trap and promote a work-life balance.
3. Offer incentives. Offer incentives that encourage employees to complete tasks during normal working hours.
4. Consider regular pay packets. Many workers like a stable pay packet as it enable them to budget for expenses. However, those working in seasonal businesses are keen to work overtime to make up for the months of reduced pay. Giving workers equal, monthly pay packets, it offers them stability and reassurance.

It’s important to understand what drives overtime and ensure you and your employees understand the damage this can do in the long-term.

There is no legal definition of what number of hours constitutes part-time working, but usually it is accepted that working 35 hours or more per week is full-time employment. The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, say that your Company’s custom and practice as an employer should also come into play when considering whether an employee is deemed full or part-time. For example if your full-time employees work a 37.5 working week, anything less than this is seen as part-time.

There are a couple of options that you could look at. The first being the principle of “first come, first served”, however, even though this option may look appealing, it is likely to aggravate the employee whose request you reject. To avoid this, it is sensible to meet with both of them separately and explain why you can’t accept both of their applications. This may lead to them working together to find a compromise that works for all involved. Lastly, you could look at not accepting either case, and although you wouldn’t be making either happy, it won’t lead to discriminatory charges. If you do reject one or both applications, it must be on approved business grounds. Finally, remember to keep records of discussions.

I'm afraid it is. The recent case of Stringer v HMRC is a case in point. The European Court of Justice or ECJ ruled that workers do accrue holiday whilst they are off on sick leave, and therefore, they are entitled to take this holiday when they return to work, or receive a payment in lieu of holiday if their employment terminates.

This judgement goes against the UK's current position under the Working Time Directive (WTD) that those who do not use their full holiday entitlement within a holiday year are not entitled to carry it over. The case is currently waiting to be heard by the House of Lords, who will make the final decision but it is likely the ECJ's judgement will prevail over the WTD.

This decision has serious ramifications for employers, who must ensure that their sickness policies are up to date and their procedures for dealing with sickness absence are efficient, otherwise it will see employees building up substantial amounts of holiday. This could cause serious disruptions for business.

Even a slight spattering of snow can make attendance at work turn erratic, with some opting out on the sight of a few snowflakes. There are a few things that can be done to ensure that employees know their responsibilities when it comes to getting to work in bad weather.

It is very much the employee’s responsibility that they turn up for work, if they don’t turn up, they don’t get paid. However, if weather conditions make it dangerous to get into work, you cannot expect employees to risk their safety to get into work. If the weather makes coming into work impossible, consider introducing a formal call-in procedure for those who know they are going to be late.

It is advisable to have an adverse weather policy to clearly outline employee’s responsibilities and gives employers more flexibility. If staff are having difficulty coming into work consider the following:

• Homeworking – may be possible for those who purely need internet access and a computer for their duties.
• Annual leave – you could require staff to take annual leave.
• Unpaid leave
• Flexi-time – staff could make up time lost from not coming into work, but this needs to be monitored carefully.

On the other hand, if an employee comes to work but weather changes during the day, such as fog, results in them being unable to meet clients and perform their job role, it is important to have contingency plans in place for this by having suitable alternative work lined up.

This is a very good question and highly relevant today! If you open any fashion magazine, you will find pages of adverts for cosmetic procedures and enhancements. Therefore, it is a question that will asked by more employers as more people choose to have procedures. It is unlikely that your sick pay policy will cover this type of situation. If your policy contains a general right to occupational sick pay (OSP) and does not define the type of sickness, it is likely that you will have to pay. However, if you have retained the discretion not to pay, then you should be safe to do so as long as you have exercised discretion fairly. If you do not offer OSP, then the employee will be entitled to Statutory Sick Pay. You could consider amending your sick pay policy to exclude payments for cosmetic-only procedures, such as those not required for medical reasons.

Full-time employees have the right to have applications for flexible working considered by their employer if they are the parent of or care for a child less than six years of age, and want to change their hours in order to care for the child. The law extends this right to others who have responsibility for children, for example foster carers and guardians. Currently there is consideration being given by the Department of Business, Enterprise and Regulatory Reform, to extend this to all parents of children up to the age of 16.

Points to consider:

• The employee needs to write to the employer with the proposed changes to her work pattern, when this will begin, and how any effects to the organisation will be overcome.
• The employer then needs to follow the request up with a specific procedure with meetings, to discuss whether the change is viable and can be accommodated.
• If the change is agreed on, it will be a permanent change to the contract unless it is agreed that it will only be for a specified time.
• The employee is allowed to request a return to full-time, but this has to be given at least a year after the request for part-time work. However, the employer is under no obligation to agree and it will depend on the needs of the organisation.

Such interviews are a very effective method of dealing with suspect sickness absence claims. They are held when the employee returns to work, but should be carried out for everyone returning to work after an absence that was not pre-arranged.

The interview is only an investigatory meeting and not disciplinary, so the employee is not entitled to bring a companion along. However, you are entitled to allow them to do is if you so wish. Do think carefully about who is permitted to hold the interview as you may be discussing intimate medical matters. It is wise to chose someone of an appropriate gender or ethnic group, and to ensure that they are fully trained.

If you are satisfied that the absence was genuine, then do offer sympathy and be understanding. Offering help in settling back in, perhaps with a lighter workload, or fewer hours, would certainly give out the message to other employees. that those with genuine absences will be well treated if they try to keep their absences to a minimum.

If you are satisfied that the claim is indeed false, then inform the employee that you will be taking the appropriate disciplinary action. As this is still an investigation at this point, do not give a warning there and then. Our Sales Engineer has been living with his partner and her children from a previous relationship for over five years. He is now going to adopt her children and has requested adoption leave.

The employee has the right to attend the first appointment at a time agreed with the registered medical practitioner, midwife or health visitor. After that you can request that a certificate or appointment card be shown to you. If the timing conflicts with business then you can ask her to find a more suitable time. If you make what she considers to be an unreasonable request, she can make a complaint to an employment tribunal who will determine if it was reasonable or not; thus it may be safer in such circumstances to allow her the paid time off.

From my own personal experience, ante-natal classes were on a Wednesday afternoon at 2pm when a whole group of pregnant ladies met at the same time. If you were unable to attend at that time, there was no alternative so in a case like this, it would probably be seen as unreasonable to prevent an employee from attending.

Employers may encounter requests from employees for time off work to celebrate a particular religious festival, or for time off during the working day to pray. In this case, the applicant might have a claim for race discrimination, as Jews have been held to constitute a racial group within the definitions of the RRA 1976. His claim would be for indirect race discrimination because the job offer was subject to a condition that considerably fewer Jewish employees would be able to comply with than employees of another race. The employer would be able to defend its position if it could show that the condition was objectively justified for business purposes. In the few reported cases where such a claim has been made, the condition has been found to be justified.

An example of indirect race discrimination against employees of a religious group occurred in the case of J H Walker Ltd V Hussain and Others [1996] IRLR 11. A group of Muslim employees were refused time off work during the Islamic festival of Eid due to a peak in the company's workload. This was despite the fact that they had offered to work extra hours to make up for the time off. Despite the company's instructions, a large number of Muslim employees took time off work anyway and were consequently issued with final written warnings.

An employment tribunal upheld the employees' claim for indirect race discrimination on the grounds that the company’s requirement for all employees to work over Eid had a disproportionate adverse effect on Asian workers as compared to non-Asian workers. The tribunal judged that the employer had been unable to objectively justify the refusal to allow the time off.

Bank holidays are days in the whole or part of the UK on which banks may close for business. The law makes provision for certain payments to be deferred until the next appropriate day for this purpose.

In many parts of England, Wales and Northern Ireland, bank holidays have become widely observed. Employees' terms and conditions of employment therefore commonly include entitlement to a holiday on those days. In Scotland, although bank holidays are observed in the banking and financial sector, they have less general significance; the public and business community in Scotland tend instead to observe various local and traditional days.

Any right to time off or extra pay on bank holidays depends on the terms of an employee's contract of employment. Even when entitlements of this nature are not explicitly written down, they may sometimes be incorporated by custom and practice (for example, where they have become part of the customary terms of employment in a particular industry).

There are currently 8 permanent bank and public holidays in England and Wales and Scotland and 10 in Northern Ireland. These include Christmas Day and Good Friday which, in England, Wales and Northern Ireland, are common law holidays - they are not specified by law as bank holidays but have become customary holidays because of common observance.

Substitute days are customarily appointed for all UK bank and public holidays which fall on a Saturday or Sunday. For some bank holidays, these substitute days are laid down in legislation. In other cases, they are appointed by Royal Proclamation (or Proclamation by the Secretary of State for Northern Ireland). The substitute day is normally the following Monday.

What happens to those workers who normally work weekends when certain bank holidays fall at a weekend i.e. Christmas? Time off for the actual Christmas Day and Boxing Day would be determined by a worker's contract of employment which may have been explicitly agreed or incorporated by custom and practice.

Provisions in the legislation enable the dates of bank holidays to be changed or other holidays to be declared, for example to celebrate special occasions. The most recent examples of special bank holidays were for the Royal Wedding in 1981, the Millennium holiday in 1999 and the Queen's Golden Jubilee in 2002.