Food Safety, HR, Employment Law and Health & Safety FAQs
Please find below answers to some of the most frequently asked questions about food safety, human resources and health & safety issues that we encounter.
Browse the full list below or use the filter system in the left-hand menu to focus on a particular area of our business.
The answers are only intended to be general guidance and if your business has a specific problem to deal with, you should call New Dawn Resources on 01484 680098 to speak to one of our experts or request a callback via the website.
How do I handle a food poisoning complaint?
Food poisoning must be taken extremely seriously and dealt with in the quickest and most professional manner, to ensure that the business is secure and that the incident is as contained as possible.
Once the allegation has been received, take details of the complainant’s name, address and contact number, along with the date of purchase of the contaminated item or date they allege they ate contaminated food.
Advise the complainant to visit their GP in order for sampling to be carried out; without this information they cannot prove that they have had food poisoning. It is also very difficult to isolate the cause of the food poisoning without identification of the causative organism.
Investigate whether the incident could have been caused by the product or your operation, and put in place corrective action if appropriate.
If necessary, contact your local EHO as soon as you have proof that you are responsible, with all the relevant information and in order to ascertain how serious the poisoning is. If you have other complaints you will need extra support.
Contact the complainant with the outcome of the investigation and details of any corrective action. Follow this up in writing. Keep records for two years.
How do I handle a food complaint?
The first thing to do is to acknowledge receipt of the complaint and gather as much information as you can, including packaging details, best before date if applicable, when bought and what the exact complaint is.
It is important to handle any complaints as quickly as possible to isolate the problem and to ensure that the issue does not become a serious or larger issue. Responding quickly also ensures that traceability is fresh, making it easier to restrict any further contamination issues.
Carry out an investigation to check your systems, see if it was caused by some fault at your company, and ascertain what you could do to prevent any repeat of the problem.
Pass on the results of the investigation to the complainant and follow it up in writing, even if you find nothing. Keep a record for two years.
How do I register as a food business?
For most businesses, you register your premises with your local environmental health service at your local authority. This should be done at least 1 month before opening – registration is free.
Registration applies to most types of food business, including catering businesses run from home and mobile or temporary premises, such as stalls and vans. If you have more than one premises, you will need to register all of them.
What do 'use by' and 'best before' dates mean?
'Best before' dates are used on foods with a long shelf life (for example, biscuits) and are for guidance only. 'Use by' dates are used on foods with a short shelf life (for example, packaged sandwiches and cooked meats). It is illegal to sell food after its 'use by' date due to the health risks associated in consuming such foods.
What happens when I get a visit from a Food Safety Inspector?
The reasons for a visits is usually either a routine inspection or to investigate a complaint. Inspectors are generally highly knowledgeable and are there to help the business, but you CANNOT refuse them entry.
They should point out their findings as the inspection progresses and give you the chance to explain your systems or processes. If they find something that they consider is serious, they should inform you of what law you have breached and what you should do to rectify it.
At the end of the visit the EHO will confirm: what action they expect and what will happen next, or what Score you have achieved, perhaps with some recommendations. They should leave you a report that includes their contact details.
How do I deal with a notice issued on my business by a Food Safety Inspector?
There are three main types of notice:
‘Hygiene improvement notice’ or 'food labelling improvement notice' – these set out certain things that you must do to comply, if your business is breaking the law.
‘Hygiene emergency prohibition notice’ – these forbid the use of certain processes, premises or equipment and must be confirmed by a Court.
‘Remedial action notice’ – these forbid the use of certain processes, premises or equipment, or impose conditions on how a process is carried out. It's similar to a hygiene emergency prohibition notice, but it does not need to be confirmed by a Court. (This type of notice applies to approved establishments only in England, Wales and Northern Ireland, but can be used for any food establishment in Scotland).
It is always wise to be as cooperative as possible once a notice has been issued, as it is for a proven breach of food safety law and it is a criminal offence not to comply with a notice once served. It is best to comply quickly and to rectify any issues to ensure the business does not suffer too much and that issues are resolved quickly.
If you do not agree with action taken by an inspector, you should contact the head of environmental health or trading standards services at your local authority, to see if the problem can be resolved through talking or writing letters. If you still disagree after that, you could approach your local councillor. In these cases you need to have a good defence with written and, if possible, photographic evidence clearly laying out your objection and any mitigating points.
What food safety training do my staff need?
This really depends on what your business is making, serving and to whom. There are several levels of food qualification and different organisations that can provide accredited training.
Most people working in the food industry should have a basic awareness of food safety issues, as covered by, for example, a 1-day course leading to the CIEH L2 Food Safety Certificate. This replaced the old Basic Food Hygiene Certificate.
The greater your responsibilities or involvement in food management, the more training you should have. Those with responsibility for the HACCP system should be trained in HACCP Awareness, at least.
What is HACCP and why is it so important?
HACCP stands for Hazard Analysis Critical Control Points, but in simple terms is a preventative approach to food safety management. If implemented correctly, it eliminates and controls food safety hazards.
It is considered so effective that it is now a legal requirement for most food businesses in the UK and EU to have a food safety system based on HACCP principles. (Food Safety (General Food Hygiene) Regulations 1995 and 1st January 2006 EC 852/2004 Hygiene of Foodstuffs).
What is SALSA?
SALSA - Safe and Local Supplier Approval - is a food safety certification scheme for small suppliers who are looking to supply national buyers on a local or regional level. It provides a recognised food certification which demonstrates they are producing products in a safe and legal manner.
It is a good first step for food businesses which want to validate their systems and that would like to gain confidence in their processes.
What is BRC?
BRC - British Retail Consortium- is an organisation representing a whole range of retailers, from the large multiples and department stores through to independents. As such, they have a huge influence on requirements for supply and best practice, including the development of its global standards.
The BRC Global Standards is a leading global safety and quality certification programme, used by more than 17,000 certificated suppliers in 90 countries through a network of over 80 accredited and BRC-recognised certification bodies. The BRC Global Standards are widely used by suppliers and global retailers to validate their suppliers and ensure consistency in their supply chain. Most companies wanting to supply supermarkets or large wholesalers will at some point in their development be required to hold a BRC certification.
How do I know if health and safety laws apply to my business?
The health and safety laws apply to all businesses however big or small. You have a duty to ensure that your work is being carried out safely and does not endanger you or anyone that works for you or may be affected by your work.
If you employ five or more people, your arrangements for health and safety must be documented. In general, the bigger the business, the more comprehensive these arrangements have to be.
Who is a “competent person”?
The competent person is the individual who is responsible for implementing health and safety, and must therefore have the skills and knowledge to do that.
Smaller companies may wish to employ someone external to assist them, but it is ultimately advisable to have someone in the business who can undertake the role of being responsible for health and safety management. This is important as that person will have a good knowledge of the company’s work, environments and risks.
The competent person should be trained in health and safety; the level of training they require depends on the size of the business and the risks faced by the operation. Some health and safety law describes the training, skills and experience that someone should have to be a competent person to perform a specific task in a particular industry or work environment.
“The essence of competence is relevance to the workplace. What matters is that there is a proper focus on both the risks that occur most often and those with serious consequences.Competence is the ability for every director, manager and worker to recognise the risks in operational activities and then apply the right measures to control and manage those risks,” Judith Hackitt, Chair of the Health and Safety Executive.
What is a risk assessment?
A risk assessment is a study of a workplace and what could cause injury or harm to the people that work for a business, with it and may be affected by its activities. It should identify what the likely causes of problems are and how to avoid them.
You should make sure that your organisation’s risk assessments are in date and looked at regularly to ensure that they are current to the activities and size of your business.
There are many formats for risk assessments and they can vary in detail and information according to the operation and/or activity being assessed. It is a legal requirement to have risk assessed for your business, however small or big it is.
Do all businesses require a fire risk assessment?
Under the Regulatory Reform (Fire Safety) Order 2005, all employers and/or building owners/occupiers must carry out a fire risk assessment that clearly identifies the possible sources of a fire and the precautions in place to control it and ensure all people are safe.
There are several specialist companies that can carry out a fire risk assessment on your behalf, but it does depend largely on the size of your business and the level of risk posed by its activities.
Like most obligations under health and safety laws, fire risk assessments should be suitable to the size of the business.
As a general guide, you should look at:
- Keeping sources of ignition and flammable substances apart
- Avoiding accidental fires, eg: making sure heaters cannot be knocked over
- Ensuring good housekeeping at all times, eg: avoiding build-up of rubbish that could burn
- Fire detection methods and how to warn people quickly if a blaze starts
- Having the correct firefighting equipment for putting a fire out quickly
- Fire exits and escape routes, and their signage
- Ensuring all your employees and visitors know what to do in the event of a fire - fire drills
What should I do if I get a visit from an HSE Inspector?
You will have received a visit from an inspector as a result of a serious accident or incident, a complaint or, in high-risk industries, as part of a scheduled inspection regime. In all cases, do not obstruct the inspector and be polite, but be confident in your systems and procedures.
They are likely to want to inspect the workplace and look at systems of work and procedures. They should inform you of any issues as they tour the site but will sum up at the end of the inspection.
It is likely that they will take one of the following courses of action:
Informal - A minor breach may result in advice on best practice, which may be followed up in writing. This can also be called a contravention notice.
Improvement notice - A serious breach with a specified time period to allow you to address the highlighted issues; there will be at least 21 days in which you can appeal. The inspector should discuss the improvement notice and, if possible, resolve points of difference before serving it. The notice will say what needs to be done, why, and by when. The inspector can take further legal action if the notice is not complied with.
Prohibition notice - Where an activity is considered to pose a risk of serious personal injury, the inspector may serve a prohibition notice stopping the activity immediately or after a specified time period, and not allowing it to be resumed until remedial action has been taken.
In all of the above it should be CLEARLY stated what law is being contravened. You can appeal any of the above, but you must have clear evidence of your counter argument and/or be sure that the inspector has not followed their compliance codes.
Can the HSE charge for inspections?
Yes. Under the Health and Safety Fees Regulation Scheme 2012 (FFI) introduced in October 2012, if an inspector finds a material breach of health and safety law, they can charge for their time in dealing with the issue and any connected investigations or further actions.
If you have been issued with an improvement or prohibition notice you should expect the associated charges. Currently the charge stands at £124.00 per hour.
You can appeal, but you must be clear about the reasons for appeal and have good documentary evidence relating to time on site, findings and any mitigating reasons.
What type of accident do I have to report?
You should have an accident book at your place of work, but some incidents require reporting more formally.
From the 1st October 2013 ‘specified injuries’ in RIDDOR 2013 replaces the previous list of ‘major injuries’ in RIDDOR 1995. Injuries that should now be reported are:
· fractures, other than to fingers, thumbs and toes
· any injury likely to lead to permanent loss of sight or reduction in sight
· any crush injury to the head or torso causing damage to the brain or internal organs
· serious burns (including scalding) which:
o cover more than 10% of the body
o cause significant damage to the eyes, respiratory system or other vital organs
· any scalping requiring hospital treatment
· any loss of consciousness caused by head injury or asphyxia
· any other injury arising from working in an enclosed space which:
o leads to hypothermia or heat-induced illness
o requires resuscitation or admittance to hospital for more than 24 hours
· If a person is unable to work due to an accident AT work for seven consecutive working days or more (not counting the day of the accident, but including weekends and rest days), you should report this within 15 days of the incident
· Whilst there is no requirement to report these, it is good practice to highlight them within your accident statistics
How do I carry out an accident investigation?
There is no specific legal requirement to undertake an investigation when an accident occurs. However, it is strongly implied under the Management of Health and Safety at Work Regulations 1999 (MHSWR) that an investigation should be part of the review process in relation to risk assessments, and to review it, an investigation must be central to this process.
Accident investigations are useful for identifying areas that can be improved, poor practices that could lead to further accidents and the factors that led to the incident. Photos are always useful, as after the event memories fade and often some points are forgotten.
Investigations are a way of demonstrating that the company meets its obligations and provide a clear example of due diligence. A example Accident Investigation Procedure can be found here.
How many first aiders should my business have?
This depends on the size of the operation, its area and its operations. As a minimum, you must have:
- A suitably stocked first-aid box
- An appointed person to take charge of first-aid arrangements
- Information for all employees giving details of first-aid arrangements
A first aider is someone who has been trained by an approved organisation and holds a qualification in first aid at work or emergency first aid at work. Ensure that you have enough first aiders to cover sickness and holiday absences and all shifts if your company operates shifts.
What is the maximum/minimum temperature permitted in the workplace?
There is no legal limit for either, but the general recommendation is not less than 16°C or 13°C for physical work. This can of course vary depending on the nature of work and the required environment.
The levels quoted would normally relate to an office environment, where it would be reasonable to expect a “comfortable working environment”.
A bakery or a cold store, for example, will by their very nature exceed any such temperature laid down. It is important to assess the tasks and requirements of the work and ensure that all workers are protected.
Thermal risk assessments can be carried out to assess needs of workers in these circumstances.
An employee has requested a full Contract of Employment, do I have to provide this?
No, you do not have to provide a Contract of Employment. However, certain information must be provided in a single document often known as the Principal Statement or a Statement of Particulars.
This must include certain information, including:
- The names of the employer and employee
- The date when the employment began
- The date when the employee's period of continuous service began
- The scale or rate of pay and the method of calculating it
- The intervals at which the employee is paid
- Any terms and conditions relating to hours of work
- Entitlement to holiday, including public holidays and holiday pay
- The employee's job title or a brief description of his or her work
- The place of work or, where the employee works at various places, an indication of this and the employer's address
When should the employee receive their written Statement of Particulars or Contract?
A written Statement of Particulars or a Contract of Employment must be given to the employee in writing by the end of the second month of employment, 8 weeks from their actual start date.
What is a casual or zero hours contract?
Zero hours contracts or casual workers’ contracts, as they are also known, are coming under fire at the moment and we may see legislation in the future preventing or restricting their use.
An employee on a casual contract agrees to be available for work at the employer's request, but are paid only for the work actually done. Casual employees are engaged purely on an ad hoc basis and the employer will not guarantee a minimum or set number of hours work per week.
The employee still gains continuity of employment and can claim unfair dismissal after one year (or two years if their employment began on or after 6th April 2012) and is entitled to redundancy pay after two years.
Are employers required to pay apprentices the National Minimum Wage?
A National Minimum Wage rate for apprentices was introduced on 1st October 2010. The apprenticeship rate applies to a worker who is employed under a Contract of Apprenticeship, or under a specified government apprenticeship arrangement, who is under 19 years of age or where they are still in the first 12 months of their apprenticeship.
Can I dismiss an underperforming employee who is on a fixed-term contract before the end of the fixed term?
Only where the fixed-term contract has been written to include a notice clause will this be considered lawful, except where an act of gross misconduct has been proven. The contract should be written so as to provide authority for the employer to terminate the contract on notice before the expiry of the fixed term. Where this is in place, termination on notice by reason of the employee's underperformance will not be in breach of contract.
Without such a clause, the termination might be in breach of the employee’s contract and would give the employee the right to claim damages equivalent to the pay and benefits that they would have received up to the time that the contract would normally have been expected to terminate.
Where the employee has gained a minimum of one year's continuous service (or two years' continuous service if their employment began on or after 6th April 2012), whether on one fixed-term contract or on two or more successive contracts, they may also have a claim for unfair dismissal in the event that the employer does not use a fair and proper performance management system and procedure.
What questions can’t an employer ask during an interview?
This is a huge area and it is not a case of can’t, it’s a case of shouldn’t.
Interviewers should always avoid asking questions about a person’s:
- Marital status or marriage plans
- Children and childcare arrangements
- General family commitments
- Partner's occupation and mobility
- Actual or potential absences from work for family reasons
These types of questions are generally put to women and not men, and therefore such questions tend to be viewed by employment tribunals as discriminatory against women because they assume that childcare and other family commitments may have a negative impact on a woman's motivation, commitment to the job, attendance or availability to work overtime. Targeting women with these kinds of questions is seen as discriminatory on the grounds of sex.
Interviewers should also avoid asking any kind of question that tries to gauge the applicant’s age, such as what year did the interviewee start primary school, or imply that age is a factor that might influence the interviewer’s final selection.
Another area to avoid at interview is health or any kind of disability-related questions, unless they are necessary to establish whether or not the job applicant, if recruited, would be capable of performing the key functions and duties of the job. You must be careful here and always ensure that any such question is reasonable based on the key functions and physical requirements of the role.
An unsuccessful candidate has requested a copy of the interview notes, do I have to provide them?
The simple answer is yes. The Data Protection Act 1998 made employers responsible for processing personal information that they may hold about a job applicant and/or employee in a fair and proper way. Specifically, if the notes made during an interview are either transferred to a computer or where they form part of a "relevant filing system".
Keeping interview notes is generally considered good practice and can help a business to protect or defend itself from potential claims, such as those for sex or race discrimination, but they should be destroyed after a reasonable period of time.
Can I ask a candidate questions about their health during an interview?
My general advice would be to avoid asking this type of question or to seek specific advice before you do about how to frame the question and if it is a reasonable question when considering the role you are interviewing for.
Where an employer asks health-related questions prior to making a decision about whom to appoint, and than fails to appoint a disabled candidate, in any subsequent disability discrimination claim the employer will have to prove that there were other reasons for its failure to appoint the candidate to the role that were not related to his or her disability. In other words, there will be a presumption of disability discrimination if the employer asks health-related questions prior to making a job offer, which the employer will have to rebut if an unsuccessful candidate brings a claim of disability discrimination.
In addition to the Employment Tribunal, the Human Rights Commission (EHRC) can take direct enforcement action against employers that ask pre-employment health questions, although in practice this is quite rare.
I have offered a candidate an interview but they cannot make it on the date I suggested; am I obliged to rearrange the interview?
The answer will depend on the reason the candidate has stated for not being able to attend. You must ensure that you do not unlawfully discriminate against a job applicant when making interview arrangements and this will include the date and time of the interview.
For example, the refusal to reschedule an interview may constitute indirect sex discrimination where the candidate cannot attend because of childcare commitments or disability discrimination if the interview time conflicts with a medical appointment where the candidate has a disability.
Is it a legal requirement to check references when recruiting new staff?
There are some exceptions, such as when recruiting for an “approved person” role within the finance sector, but generally the answer is no.
Employers often choose not to seek references, particularly if the role is temporary. However, it is considered sensible and good practice and many employers prefer to obtain at least one reference from a previous employer, if only to verify the accuracy of the information the candidate has provided.
I have received a reference request relating to an ex-employee; do I have to provide one?
The simple answer is no, irrelevant of who the request comes from. There are some exceptions which relate predominantly to the finance sector, but generally speaking if these exceptions apply to you, you will already know about them.
Most employers are not obliged to provide a reference about an employee or ex-employee, whether the request for a reference comes from the employee, a prospective employer or any other third party, such as a bank or landlord. Many companies have set policies on giving references which stipulate that they only include basic factual information about the employee's length of service, position held, pay etc.
I have received a reference request relating to an ex-employee; do I need the person’s permission to respond?
Providing a reference is likely to involve processing personal data under the Data Protection Act 1998. Therefore, the employer must satisfy one of the conditions required for processing data as set out in sch.2 to the Act. In relation to a reference, the most likely condition to apply is that the individual has consented to the data being processed.
The Information Commissioner’s Office website recommends that employers have a policy on giving references that includes a requirement that “all those giving references must be satisfied that the worker wishes the reference to be provided”. It also recommends that, when an employee leaves the organisation, the employer should keep a record on file of whether or not the employee wishes the employer to provide references on him or her. For example, the employer could ask the employee this question at an exit interview, or it could be included on an exit questionnaire.
Can I insist on medical checks for all new employees?
A small number of exceptions exist, but generally speaking there is no legal requirement for an employer to require applicants to undergo a medical examination. If, however, the employer has made a conditional job offer dependent upon a satisfactory medical examination, then it is within its rights to withdraw the offer if the job applicant refuses to take a medical examination.
An employer can insist that all new employees undergo a medical check provided that the check is designed to ensure that they are fit to perform the particular job for which they have applied and that the checks are reasonable. If the medical standard is set too high in relation to the role, there is a risk that it will not be justifiable under the Human Rights Act 1998.
Can I dismiss an employee who did not disclose a medical condition on the application form?
Yes, if you have worded the application form correctly to include this possible outcome. Termination of employment in these circumstances is likely to be a fair dismissal provided that the employer follows a fair procedure and they notified the employee at the time of recruitment that a failure to disclose medical information (or any other relevant information), as requested, constitutes grounds for dismissal.
That said, a dismissal on the grounds of an employee's non-disclosure of a medical condition will create two possible risks for the employer in terms of an employment tribunal: a claim for unfair dismissal and a claim for disability discrimination (if the medical condition amounts to a disability under the Equality Act 2010). Section 60 of the Equality Act 2010 restricts the circumstances in which employers can ask prospective employees questions about their health before making an offer, including a conditional offer, of employment.
Can I write to my employee’s GP for information about their absence?
Yes, but you will need the authorisation of the employee before you can do this, otherwise the GP or any other medical professional will be unable to provide the information to you.
The Access to Medical Reports Act 1988 covers reports that are “prepared by a medical practitioner who is or has been responsible for the clinical care of the individual”. Care is defined as including examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment. Therefore, reports produced by the employee’s own GP or consultant would be covered.
It is nearly the end of an employee’s three-month probationary period, but I still have some concerns?
You may want to consider an extension of the probationary period if the employee's performance is unsatisfactory but they show some signs of continuing improvement.
This will allow you a further three months to decide whether or not the employee will be able to meet the required standard. An extension is also considered good practice where the employee has been absent from the workplace for a significant proportion of their initial probationary period.
My solicitor has recommended that I consider a compromise agreement to settle an employee dispute; what does this mean?
A compromise agreement - more recently termed a ‘settlement agreement’ - is a legally binding agreement between an employer and an employee under which the employee agrees to give up their right to bring an employment tribunal or court claim relating to the matters covered by the agreement, usually in return for financial compensation.
A settlement agreement is often used to end the employment relationship on agreed terms, for example as an alternative to the employer instigating disciplinary or capability proceedings, or an employee’s agreement to retract an employment tribunal application process. It is usually agreed that the details of the agreement will remain confidential.
Can I ask an employee whether or not they intend to retire?
Employers must be careful to avoid any questions that suggest they are putting pressure on the employee to retire. Any separate treatment or specific questions aimed at older employees could constitute age discrimination.
You could consider asking employees about their future aims and aspirations, as a good way of raising the issue of retirement. Good practice also suggests that these discussions should be carried out as part of a regular appraisal process and should take place with all employees, irrelevant of their age.
Our Contracts of Employment still contain a compulsory retirement age clause; do I need to re-issue them?
There is no requirement for you to reissue amended contracts to all staff members, although you may choose to do so, in the event this is an indication that it has been a long time since they were reviewed. As a minimum you should inform all employees by letter that the clause is no longer relevant to their employment and that it will not be enforced.
An employee has resigned but told a colleague that they intend to make a claim for unfair dismissal; can they do this?
This is most likely to be a "constructive dismissal" claim, which an employee can bring even where they have decided to resign their employment. An employee can bring claims both for breach of contract and for unfair dismissal if they can show that the employer has committed a fundamental breach of contract. Furthermore, if the resignation is in response to alleged discrimination because of a protected characteristic (eg: age, disability or pregnancy), the employee may also seek to bring a claim under the Equality Act 2010.
Has the qualifying period for an unfair dismissal claim been extended from one to two years?
Yes, the qualifying period for unfair dismissal claims increased from one year to two years on 6th April 2012, but only for employees whose employment began on or after that date.
What is the likely outcome of an employee winning a claim of unfair dismissal?
In the vast majority of cases a successful claimant will be awarded financial compensation. Employees rarely ask for reinstatement or re-engagement and, even when they do, tribunals do not often make such an order.
How does a tribunal decide whether a dismissal decision was unfair in a misconduct case?
The first point of call will be to look at the company’s policies and procedures in relation to discipline and conduct matters and to assess whether or not these where applied correctly and reasonably in the circumstances.
Specifically in cases of misconduct a tribunal will examine first whether the employer genuinely believed that the employee was guilty of misconduct, second whether the employer had reasonable grounds for that belief, and third whether the employer had carried out as much investigation into the matter as was reasonable in the circumstances.
I have received a letter from an ex-employee which has “without prejudice” written at the top; what does this mean?
Firstly, this is a clear indication that the ex-employee is unhappy about something relating to their employment with you and that they might be considering making a claim to the Employment Tribunal Service.
The basic meaning of "without prejudice" is "without loss of any rights". Where there is a dispute between two parties, for example an allegation of unfair dismissal, and there are negotiations taking place with a view to settlement of the dispute, a letter from one party making a settlement offer to the other party should be clearly marked "without prejudice". This means the settlement offer should not be construed by the recipient of the letter as a waiver of the other party's rights.
More importantly, marking a letter "without prejudice" means that it cannot later be admitted as evidence before a court or employment tribunal without the consent of both parties concerned, should settlement negotiations subsequently break down and the dispute come before the court or tribunal. This is because, as part of the settlement negotiations, "without prejudice" correspondence may typically contain admissions or other interpretations that could otherwise later be used against the author of the letter, or his or her client if the author is a solicitor.
Will I need to identify a selection pool in order to make redundancies?
The only time that this will not be necessary is where only one job role is redundant, and there is only one employee carrying out that role. However, this will only be the case where the role is unique in the business. If there are other roles that are similar, or that require similar skills and qualifications, or minimal training by other similar roles, you should consider whether the employees in those roles should be included in a pool for selection.
A selection pool will not be required where an entire department or area of the business/ function, is involved and where all the posts within that part are redundant. However, the employer should consider whether or not it may be appropriate to include in a redundancy pool employees from other areas of the business who carry out similar roles.
Are employers obliged to accept applications for voluntary redundancy?
No, when you invite employees to put themselves forward for voluntary redundancy, you can reserve the right to refuse applications. You may wish to reject applications from employees in certain key roles, to retain a balanced, skilled workforce, or in the event that it receives more applications than it requires.
When asking for volunteers for redundancy, you should make it clear and inform the employees that applications may be rejected.
An employee who is being very sensitive has made a complaint of harassment; do I have to investigate it?
You will need to be very careful here. Your own perceptions are clearly different to those of the person who has raised the complaint, but this does not mean that the complaint is not valid or worthy of investigation.
When deciding whether or not conduct amounts to unlawful harassment, a tribunal will take into account the perception of the person making the complaint and whether or not it is reasonable for the conduct to have the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In essence, this will be based on the employee’s perceptions and feelings, not on yours as the manager or anyone else involved in the incident.
Failure to provide an adequate grievance procedure could itself gives grounds for a claim against the company, and an employer that dismisses a complaint of harassment or bullying on the grounds that the employee is thought to be "over-sensitive" could be liable for a harassment claim.
I have not done anything about updating our HR materials since the Equality Act in 2010. Is is too late, should I wait for the next round of changes?
In terms of new laws and regulation, a few years is not that long and many in the profession hope that it will be many more years until we see further changes of this depth within employment law. It is true, however, that in light of the changes implemented by the Equality Act 2010, employers should have reviewed and, if necessary, amended their existing policies and procedures (in particular those relating to equal opportunities, recruitment and harassment).
That said, it is never too late to get the company back on track and, assuming you have some basic tools in place, it should not be a big job. For example, if you have policies on equal opportunities and recruitment, these should be amended to clearly state that it is now unlawful to discriminate directly or indirectly in recruitment or employment because of any of the nine "protected characteristics" in the Equality Act 2010. And these are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The concepts of associative and perceptive discrimination should also be introduced in the policies where relevant.
In relation to reviewing Contracts of Employment, you should look out for changes such as any now unenforceable pay secrecy clauses where the employee is involved in a relevant pay discussion.