Rocket Lawyer Employment Q&A

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Rocket Lawyer (www.rocketlawyer.co.uk) in conjunction with their On Call lawyers PJH Law?

They asked start-ups and small businesses across the UK what their top employment law questions were so topics discussed are:

• How to use zero hours contracts properly
• Dismissing employees over social media comments
• Dismissing employees over poor performance
• The use of ‘fit’ notes to replace sick notes
• The essentials of hiring staff for the first time

Broadly Risks News

Firetrench Directory

1) I need to use zero-hours contracts for peak periods – are there any tips on using them properly?

These are controversial due to the balance of power being weighted in favour of the employer but if you are planning on using them, make sure that arrangements with your zero-hours workers do not diverge in practice from the terms of the contract. Do not oblige the individual to accept work whenever offered. There should be no come-back on them should offers be declined and no restriction to working for one company. For internal purposes do not label them as employees and avoid offering them an entitlement to the usual benefits e.g. mobile phones. Consider how best to manage risk of reputational damage – consumer backlash against these business practices can be seen as being unethical.

2) Can I dismiss an employee for offensive comments on social media?

An increasing number of tribunal cases have involved use of social media sites. Employers and employees can use evidence from Facebook and YouTube as evidence in disciplinary and Employment Tribunal proceedings. Once an employee posts something it ceases to be private.

The dismissal of an employee who makes offensive comments on social media may be fair but an employer should always consider any case on an individual basis – was it a one off incident? Did they try to remedy? Was the employer brought into disrepute? Did the employee know the rules about social media use? One rule does not fit all. As a general rule, to be a fair dismissal, there needs to be some link/connection between the posting/site and work. Bear in mind, an over-zealous reaction to a moderate expression of opinion made on a personal social media page may give rise to unfair dismissal claim, particularly if an employee recognises that his or her actions were wrong and confirms that there will be no repetition.

Employers often ‘vet’ job applicants using social media sites but any enquiries of this nature could potentially be a breach of the Data Protection Act.

3) What are the first steps I need to take when employing new staff?

Did you know that as an employer, you need to issue a statement of employment particulars (including names of parties, commencement of employment, salary details, job title, hours and place of work) within two months or you could be fined?

You need to purchase employers liability insurance and display this where employees can see it. Register with HMRC for tax purposes, check they have a right to work in the UK and if there are at least five employees, you must have a health and safety policy. Disciplinary, grievance and equal opportunities policies are also recommended.

4) What is a ‘fit’ note – what do I need to be aware of?

The fit note was introduced to replace the old sick note in 2010. Doctors issue fit notes to evidence the advice the doctor has given about the individual’s fitness for work. If accepting a fit note, always check that it includes the doctor’s address and take a copy. Note that doctors cannot issue fit notes during the first seven days of sickness absence, employees can self-certify within this time, which you have to pay/arrange for if you would like medical evidence.

5) How do I dismiss a poor performer from the company?

Since July 29th 2013 employers have been able to engage in ‘pre-termination negotiations’ (discussions with employee about the possibility of leaving the business). Having these negotiations gives you protection and means that this conversation cannot later be used in an unfair dismissal claim. When engaging in these negotiations the proposal must be put in writing in order for it to be legally binding and must include details of any payments to be made and the timing of such payments and reason for the proposal. Allow the employee a reasonable amount of time to consider the offer and the opportunity to discuss the proposals face to face – it is also good practice to allow the employee to be accompanied. Remember not to engage in any “improper behaviour” (all forms of harassment, bullying, intimidation and undue pressure) as this could make pre-termination negotiations admissible.

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