Q & A's

A series of questions and answers on HR matters that are affecting you.

 

Poor Performance

Q.  I want to make an employee redundant who also has poor performance is there a problem with that?

A. It depends if you are dressing up the reason as redundancy which could lead you into a tribunal claim. I understand that managing performance may appear to be a time consuming process where as redundancy is often seen as an acceptable and a quick way of dismissing an employee. Redundancy requires a statutory response to a reduction in the requirement for the employee to do a particular kind of work. That may have come about as a result of economic reasons, re-organisation of roles and duties, alternative ways of working or absorbing duties into another role.

A tribunal will not challenge business reasons but they will look at if the reasons are genuine as opposed to dismissing for another reason hidden behind redundancy.  If the reason is genuine the procedure must also be fair, employees must be consulted, you must select the right pool or individuals and offer suitable alternative employment where appropriate.

 

No Smoking Policy

Q. Does a No smoking policy affect drivers of business vehicles?

A. It depends on who uses the vehicle.  If the driver of the vehicle uses it for sole use and does not share the vehicle with other drivers or does not pick up customers then there is not an issue.  However if the driver works with another employee or if the other employee works at different times and uses the vehicle even if that is occasionally then it does apply.  If this is not clear then I would suggest you update your policy to clarify the situation.

 

Contract of Employment

Q.  I currently employ my staff without a contract of employment am I breaking the law?

A. There is no requirement for a contract of employment to be in writing, but you must provide written details of the main terms and conditions of employment for those employees whose employment lasts for more than 1 month. If after one month the employment ends the employee is still entitled to receive written particulars.  You may find a statement of written particulars is enough in which case it will become a written contact of employment if both parties agree and the terms are correct usually that agreement is by signing the contract.  There are number of written details of the main terms and written conditions of employment which must be included in the document and it needs to be issued within 2 calendar months of the beginning of the employment.

 

Written statement of main terms and conditions of employment

The statement must contain particulars of all the essential elements. If for example you do not operate a company sick pay scheme and only offer Statutory Sick Pay (SSP) then you must state this.  Although for example you must state the applicable disciplinary and grievance rules and procedures.

If there are changes to the statement for example where your employee receives a pay rise, then you as the employer must, within 1 month of the change provide a written statement.  However you do not have to repeat all the exisiting terms as you can refer back to the existing statement.

For more details or assistance please give us a call.

 

Short Term Absence

Q. I have an employee who keeps having odd days off sick, this is causing problems in my business, how should I tackle the situation?

A. Many businesses require employee’s not only to complete a self certification form when they return to work but they also hold a return to work meeting.  The meeting is an opportunity to discuss any problems the individual may be having with work, personal problems, and medical problems in particular or in general.  You will also have an opportunity to clarify what you expect in terms of good attendance, the effects on the business and their colleagues and to state as part of your role it is your responsibility to monitor employee attendance.  These meetings will often be enough to ensure employees do not take the odd day off.  There are other formal measures that can be put in place which I would be happy to discuss in more detail.
The information contained in this article is for general information

 

Holiday Payments

Q. How do I calculate holiday payments for workers who do not work the same hours every week?

A. In the U.K. the annual holiday entitlement is 5.6 weeks or 28 days.  Part-time workers receive pro-rata that amount so someone who works half of the working week would be entitled to 14 days annual leave. For workers with no normal working hours, first you need to calculate a week’s pay which is the average pay received over the previous 12 weeks. You must also ensure when using a 12-week referencing period that pay was earned in each of the weeks.  If not then you need to include 12 working weeks as a referencing period.

To calculate the holiday entitlement you then need to do a simple calculation, 12.07 divided by 100 x by the number of average hours worked, an example would be 12.07 divided by 100 x 20hrs worked = 2.42 hours which equates to 145.2 minutes holiday entitlement due.  Holiday pay must be received when leave is actually taken; it is unlawful to pay an allowance as part of their wages or instead of salary.

It is important to note that holiday pay must be received when leave is actually taken; it is unlawful to pay an allowance as part of their wages or instead of salary.

 

 

Bank Holiday Payments

Q. 2 of my employees work on average 4.5 days per week - Tues - Fri and alternate Saturdays. Very occasionally they may cover a Monday, but this is rare (perhaps once or twice a year).  How do I calculate the Bank hol element of their holiday pay?

A. Since 1st April 2009 statutory holiday entitlement is 5.6 weeks or 28 days for a full time employee which can include the 8 bank holidays, (although some larger employers offer above the statutory figure).  The written terms & conditions of employment should state how holiday pay is calculated.  There is no statutory right to paid leave for bank holidays, that will depend on what it says in the contract, if it doesnt say there may be custom and practice, paid bank holidays can count towards the 5.6 weeks.

Bank holidays paid or unpaid, part timers should be treated no less favourably than full time workers so what you do for full timers you need to pro-rata for part timers.  It therefore needs to be fairly applied over different shift patterns.

I prefer the option of working out holiday in hours as it is easier to use for many different situations.  When using hours rather than days to calculate holiday entitlement, it gives more flexibility when an employee for example works different hours on different days, term time, annual hours, shift work or different days/hrs each week.

Some organisations expect employees to work on bank holidays (such as retailers) their holiday entitlement is taken at other times during the holiday year.  So let me give you a few examples of how to calculate pro rata holiday entitlement including bank holidays in the 5.6 weeks entitlement.

 

Employee Y works full time 37hrs and received 28 days paid holiday including 8 bank holidays this equates in hours 207.2 hours for the holiday year including bank holidays.  Employee X works 3 days per week, Tues, Wed, Thurs and different hours on different days totalling 15 hours per week this equates to 84 hours holiday entitlement incluing bank holidays

Where you do not have the average weekly hours these need to be worked out in order to calculate the annual entitlement.
Employee Z works 25 hours per week term time over 38 weeks so 25 x 38=950 hours worked  so divide 950 hours by 46.4 weeks (which is 52 weeks minus the 5.6 weeks holiday allowance) gives you the average hours per week of 20.47 hours then multiply that by 5.6 to give you the annual holiday hours including bank holidays 114.63
A casual worker with no fixed hours it is easier to work it out as they work the hours, if you calculate the 5.6 weeks as a percentage it works out at 12.07 percent of hours over a year worked. So if you work out the average hours and they come to 15 per week then the holiday entitlement would equate to 12.07 divided by 100 x 15 hours= 1.81 hours or (1.81x 60) =108.6 minutes.

 

Your specific question.
I would need to check your contract, if it is silent what is your current practice?  Say for example you offer 5.6 weeks holiday pay including bank holidays to your full time workers and therefore your part time workers are entitled to pro rata that arrangment. They do not normally work a Monday but are entitled to a proportion of bank holidays.  So your full timer works 5 days x 5.6 = 28 days (20 days holiday and 8 Bank Holidays) part timer works 4.5 days x 5.6 = 25.2 days holiday. (which is made up of 18 days holiday and 7.2 days bank holiday entitlement). If you close on Christmas day and Boxing day and New Years day then (depending on when they fall) that may affect some part time employees in one holiday year and others in another year.  Those days will need to come out of their allowance.

If Bank Holidays are working days then if a part timer works a Monday they could choose to take the Monday as part of their holiday entitlement or they could work it and take it another time. Like the full timer.  An employee who does not work a Monday will take their annual leave on another day as they dont work bank holidays but they both get the same amount or pro rata the holiday entitlement.

 

Harrassment

Q. How should I respond to a complaint of harassment?

A. If it is not possible to deal with the issue informally, because it is of a serious nature. 
•  Investigate promptly, fairly and objectively
•  Inform the employ
•  Gather the evidence
•  Set up a hearing
•  Allow the employee to be accompanied
•  Decide on action
•  Offer an appeal
This may be covered in discipline and grievance policies or a specific bullying and harassment policy.  Harassment is against the law and it is important that you take it seriously.

 

The information on this site is for general information purposes only and does not claim to be comprehensive advice.

A selection of Questions and Answers on HR related matters

Please feel free to send me any HR questions you would like answered.

Contact : Kerry McGowan , t. 0844 858 4480 , m. 07970 489321 ,  kerry.mcgowan@birchanger-hr.co.uk