Where an employee had been dismissed on the ground of medical incapacity while his contractual...
Top tips for new employers
- This basic guide is designed for those taking on staff for the first time. It does not seek to cover all the relevant employment law considerations but rather provides an overview. It is suitable for smaller employers without a dedicated HR function.
- It covers three main areas: recruitment, management of the actual employment relationship and finally termination of employment.
- Identify the role required and:
- create a job description - this should cover the following basic elements: the job title; reporting lines; the main purpose of the job; key results areas; detailed duties and responsibilities; working relationships; and any special factors
- consider creating a person specification which details the knowledge, skills and experience that the job holder will need to have, and to what level they will need to have them, to fulfil the key duties and responsibilities outlined in the job description. This should be based on the objective requirements of the job description, not on subjective factors which are often irrelevant and may be discriminatory
- decide which type of contract e.g. zero hour, full time or part time?
- Identify where you will advertise.
- Check all materials to be used in the recruitment process to ensure there is no content that could be considered discriminatory on any unlawful grounds.
- Mark all applicants against your objective selection criteria and draw up a short-list of candidates.
- Notify those shortlisted of any tests they will be required to undertake as part of the interview process and ask if they will require reasonable adjustments (e.g. changing the interview location for an applicant who uses a wheelchair) to fully participate in the process.
- Take and keep interview notes. Record accurately what is said, but avoid making subjective, judgmental comments. Such notes may have to be disclosed in employment tribunal proceedings at a later date.
- Only ask questions concerning the candidate’s personal life if directly relevant to the requirements of the job, as this may be used by an unsuccessful candidate as evidence of discriminatory recruitment practices.
- Keep a paper trail but only for as long as necessary after the recruitment process is concluded.
- Decide if you will provide feedback to unsuccessful candidates. If you do, reasons given should relate solely to the requirements of the role.
Making the offer of employment
- Issue the offer letter and:
- state that the offer letter and any handbook/policies do not form part of the contract; this avoids future confusion or dispute as to which terms apply and gives you flexibility if you need to change policies in the future
- state that any offer is subject to contract, receipt of satisfactory references, evidence of any pre-employment conditions (e.g. specific qualification) and confirmation of the individual having the right to work in the UK
- diarise to check that the conditions have been satisfied in due course; you can withdraw the offer if they haven’t
- Do not require job applicants to complete a pre-employment health questionnaire before offering the job or shortlisting them. Health questionnaires can be issued once an offer has been made but employers need to be mindful of their reasons for doing so as this practice can be challenged if it is discriminatory.
- Once acceptance in writing is received, seek permission to approach their referees.
- Check their right to work in the UK before they start employment. You must make a ‘contemporaneous’ record of the date the check is carried out, which can be done by making a dated and signed declaration on the copy of the document(s) presented (e.g. This right to work check was made at [time] on [date] by [name], and then sign it). Remember to copy the front cover if you are given a passport. If applicable, diarise to review any visa expiry dates.
Dealing with the contractual documentation
- Issue the written statement of terms and conditions of employment within two months of their start date. Ask them to return a signed copy to you as soon as possible and diarise to check that this happened.
- If a probationary period applies, explain how and when the employee’s performance will be assessed. Any probationary period should be long enough to allow new staff to settle into the role and show they are meeting the job requirements. Remember that probationary employees have the same rights as permanent employees: there is no special legal status to being a probationary employee.
- A three or six-month probationary period is usual, subject to the seniority of the role and skills that need to be assessed. Diarise to review their performance before the end of their probationary period and confirm your decision in writing.
- Keep a record of the employment terms and any variation of them on file.
- Carry out an induction process (sometimes called on-boarding) at the beginning of their employment to ensure the employee knows their duties, agree any performance objectives, arrange any relevant training and where to access the policies/assistance internally.
Reviews and appraisals
- Schedule and carry out formal appraisals (performance reviews) regularly throughout the employment. Annual reviews are fairly typical. You can also hold informal reviews.
- Use the appraisal/review to provide feedback about their performance and conduct, and to discuss any concerns you have with them. It’s a useful way of identifying training or support required by the employee, and to also get feedback about your performance as a manager and the business.
- Feedback should be constructive and focussed on ways of supporting the employee to do their job to the standard required.
- Keep records of the discussions and any training or concerns discussed. Diarise any follow up discussions which are agreed. The records may be needed for any future performance related improvement plans and/or employment tribunal proceedings.
- If their performance is not to the standard required and there is no good reason to explain this, consider instigating a formal capability process (also called performance management).
- Remember to make any reasonable adjustments required if the individual is disabled for legal purposes.
Disciplinary, capability and grievances
- Make sure your policies on these areas are easily accessible to employees. Ensure you have read them and understand when they can or should be followed.
- A disciplinary procedure should be used in respect of conduct issues (see Handling misconduct), the capability procedure for situations where the employee is not able to perform the job to the standard required (see Handling poor performance), and the grievance procedure for concerns raised by the employee.
- Follow your policy and refer to applicable guidance from ACAS. In some situations, you may need or wish to instruct an independent HR adviser to help you.
- It is always better to manage performance issues or an employee’s concerns promptly and in good time, rather than ignoring them and potentially dealing with an employment tribunal claim in the future.
- Do not dismiss concerns raised verbally by an employee: these may need to be treated as a formal grievance.
- Suspension should not be your default response when investigating allegations against an employee or during a disciplinary process. Only suspend where you are satisfied it is reasonable and appropriate to do so, e.g. the individual might interfere with the investigation if they remain on site.
Varying contract terms
- Changes to any contractual terms should be done with the employee’s consent and recorded in writing.
- If you unilaterally impose a change, the employee could claim you have breached the contract and duty of trust and confidence and claim constructive dismissal.
- If the employee does not agree to the change, you will need to consult with the individual, give them formal notice (as per the contract terms) and offer them a new contract with the revised term(s)in it.
- See Changing Terms and Conditions of Employment.
- If the individual gives notice to resign, check they have given the correct period required in their contract.
- If you are dismissing the individual, identify the reason (making sure it’s one of the potentially fair reasons permitted legally), and follow a fair process before dismissing. Consult the relevant company policy as well as the ACAS Code of Practice and guidance.
- Consider whether you need the individual to work out their notice period or whether you wish to put them on garden leave (i.e. they remain an employee but are not permitted to come to the office) or make a payment in lieu of notice.
- Confirm the end of the employment in writing, the reason (e.g. redundancy or resignation) and the exit arrangements. Exit arrangements can including reminding the employee to return any confidential information and your company property before they leave.
- It is fairly standard now to give a basic reference for former employees which states their start and end dates, and job title.