Employment Law & HR Frequently Asked Questions

What can I ask about the health or medical history of job applicants?

Until you make an offer of employment to a candidate you should not enquire about his or her health (including absence records in previous jobs) unless you have a specific use for any such information.

Once you decide to shortlist a candidate you may then need to know if they require any special arrangements to attend or participate in an interview.

If you had chosen not to shortlist the candidate, then not having yet asked them any questions around whether they might have a disability will help you to defend against any potential disability discrimination claim in an employment tribunal.

If your recruitment process involves a medical questionnaire - asking candidates or their referees about health or similar questions – you should review exactly what information is being sought, when and why. Ask yourself whether it is relevant to the role and if so, how you might intend to use the information. Would this affect your decision-making at that stage of the process?

Once an offer has been made you may then need to know more, for example in order to explore whether any reasonable adjustments need to be made to allow the employee to take up the role. At the point an offer of employment is made, you should make it conditional on satisfactory medical information, and you can ask about health information at that time.

MentorLive provides detailed “How To” guidance on recruiting employees. Our Advice Service can help you decide what medical questions you might still need to ask and how this might be justified.

Why do I need to hold a disciplinary hearing with the employee when there has already been an investigation meeting?

An investigation meeting can be held quickly and informally to establish the facts. Its purpose is to help you assess what, if any, disciplinary case the employee might have to answer.

However once you can explain the specific allegations to the employee then an invitation to a more formal meeting, for which the employee is entitled to prepare and arrange to be accompanied etc, is required. This is in order to show you have followed the correct process before issuing a formal warning or deciding any more serious outcome, such as dismissal.

If you fail to follow a fair disciplinary procedure, this could result in a finding of unfair dismissal if the employee makes a claim to an employment tribunal. This could result in an additional uplift of up to a 25% in any compensation award because you have failed to follow the ACAS Code of Practice. The ACAS Code sets out the minimum procedural standards against which your disciplinary actions would be measured.

Can an employee insist on being accompanied by a colleague to every meeting he or she has with a manager?

No. An employee only has a legal right to be accompanied to formal grievance or disciplinary meetings. However it is usually advisable to allow an employee to be accompanied at any meeting which could result in his or her dismissal, if they have more than one year of service, and particularly where it is your Company policy or normal practice to allow this.

The right to be accompanied only extends to a workplace colleague or a trade union representative. This means that an employer can potentially refuse entry to persons such as: solicitors, friends and family members of the employee or welfare rights advisers. You cannot refuse a trade union representative unless they are bogus, even if your business does not officially recognize a trade union.

The Mentor Telephone Advice Service can always offer you advice on your specific situation.

If an employee brings someone with them to a disciplinary or grievance hearing what is that person allowed to do?

The person who accompanies an employee to a disciplinary or grievance meeting has certain rights set out in law. As well as generally supporting the employee and bearing witness to the formal hearing, the work colleague or trade union representative may also confer with the employee and address the hearing on his or her behalf.

However the person should not obstruct the proceedings (for example by preventing the employer or any others in attendance from making their points) and cannot answer questions on behalf of the employee or address the hearing if the employee does not wish them to do so.

Mentor can give you advice in advance of such meetings and if necessary you can also postpone or adjourn a meeting to call for on-the-spot advice from the Telephone Advice Team. If you would prefer to have a consultant from Mentor come along to assist on the day, we can arrange this (at an additional charge).

An employee has just been signed off work and has requested no contact. Can I really not contact her?

An employer is entitled to keep in regular contact with an employee who is signed off sick to try and ascertain when the employee is likely to return to work. In cases of long term illness there is in fact an obligation on the employer to keep in contact with the employee and explore whether there are any “reasonable adjustments” that can be made in the workplace to assist the employee to return to work.

A common sense approach can be taken as to what level of contact might be appropriate in any given circumstances. Unless there are exceptional circumstances it is not acceptable for an employee to ask a third party such as a parent or spouse to follow your reporting procedures on their behalf – you can ask the employee to contact you directly.

What holidays do I need to give staff?

All workers, including part-time and casual staff, are entitled to a minimum of 5.6 weeks’ paid annual leave per year. They should be able to spend the equivalent of 5.6 of their normal working weeks away from work but continue to be paid as normal throughout.

You can include any public holidays which you give staff towards satisfying this minimum legal requirement. There is no legal right to bank holidays in addition to annual leave, unless the employee’s contract of employment states otherwise.

A “week” means the employee’ normal (or average) working week so for a 5 day a week worker this equates to 28 days (where 5.6 x 5 = 28).

What holidays do I need to give part-time staff?

Part-time workers should receive a pro-rata share of whatever is given to their full-time counterparts. This would include a share of any bank holidays, even if they do not normally work on the days which the bank holidays fall.

You may find it easier to express their entitlement in hours rather than days unless there is a standard shift length for all staff within your Company. For example, if a full-time employee works 40hrs per week and gets 8 bank holidays (64hours) then a part-time employee working 20hrs per week should get half of this (32hours), to be taken at times they would normally be scheduled to work.

An interactive holiday calculator is available on MentorLive for further help with working out holiday entitlements.

If you allow staff to carry over any leave from one year to the next this should not leave them with any less than four weeks off in any given leave year and paying an employee (instead of giving them this minimum paid time off work) only counts towards meeting your minimum legal obligations when the contract is being terminated.

Am I not allowed to make anyone on maternity leave redundant?

If an employee is pregnant or on maternity leave and if a genuine redundancy situation arises, you can still place the employee “at risk” of redundancy and also then put her through the selection process for compulsory redundancy as necessary.

However there is then a specific legal protection for female staff whilst they are on maternity leave that effectively gives them first refusal on any suitable alternative vacancies. This does not exempt them from dismissal or require you must find them alternative work, it just means that if any other suitable work exists then this must be offered to them first.

Also it is always important to be able to show evidence that there is no discrimination against anyone in relation to pregnancy, maternity or being a new mother. The law protects them against any less favourable treatment or outcome than they would have faced were it not for having their baby.

You should always seek specialist advice from Mentor before commencing any redundancy process.

I need my part-time employee to work full-time so can I make her redundant if she refuses?

No. This would not be classed as a redundancy in law because you do not need any fewer employees to do the work.

You should approach the situation by consulting the employee as to your business reasons for proposing this change and exploring all the potential solutions. This might include advertising for another part-time employee to complement the existing employee’s hours. If it is ultimately only going to be possible for the work to be done by one person on a full-time basis and the employee refuses to do this, you might then be able to justify dismissing the employee. However this would need to be shown to be as a last resort.

How much notice do I need to give an employee when I dismiss them?

Normally an employee is entitled to the greater of either their contractual or statutory minimum notice upon any dismissal except ones for Gross Misconduct (where no notice is required) and statutory retirement (where between 6 and 12 months’ notice is required).

The statutory minimum notice for dismissal is one week notice for each full year of continuous service by the employee, up to a maximum of twelve weeks. This is what the employee is entitled to receive unless his or her contract makes more generous provision.

You can ask an employee to work during some or all of the notice period and you do not need to pay them for any work which they do not make themselves available to perform. However if you do not wish to allow them to continue to work you will still need to pay them for it – this is normally done in the form of payment in lieu of notice.

Mentor can assist you if you wish to consider options within your employment contracts such as payment in lieu of notice and ”garden leave” clauses.

An employee has resigned giving longer notice than is stated in their contract – what can I do about this?

Normally the contract of employment will set out the minimum amount of notice you can expect when an employee resigns. The statutory minimum notice period is one week if the employee has been employed for one month or more.

An employee is free to give you extra notice and this may assist you in planning for their replacement. Remember that in the case of a resignation it is always for the employee to set the date on which he or she intends the employment to terminate. It is also advisable to seek confirmation of this in writing before relying upon it.

What if an employee resigns giving less notice than is stated in their contract?

If an employee fails to give you sufficient notice then you are only ever required to pay them for work they make themselves available to perform. Technically you could take legal action against the employee for breach of contract - however this is not always a practical solution unless you can show you suffered a substantial financial loss as a result. You cannot legally punish the employee by refusing to pay him or her for work he or she has actually performed.