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I have received a reference request relating to an ex-employee; do I have to provide one?

The simple answer is no, there is no legal duty to provide this kind of information to another company or potential employer. 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.

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 and of risk. Interviewers should always avoid asking questions about areas such as a person’s:
- Marital status or marriage plans
- Children and childcare arrangements
- General family commitments
- Religious beliefs or practises.

These types of questions are generally put to women and not men, or to individuals who might appear to follow certain religions due to their dress or appearance. Such questions tend to be asked to those candidates alone and not to everyone so can be viewed by the candidate as potentially discriminatory.

As a rule the questions asked should always relate to the requirements of the role and interviewers should be careful not to allow any stereotypical ideas to influence their questions.

My staff can’t fit their holiday in before the end of the year, can I just pay them their remaining leave?

Full time staff are legally entitled to a minimum of 5.6 weeks of holiday per year. This is a legal right and a health and safety requirement to allow staff to have the right amount of rest and recuperation from work.

If your staff have more holiday than this (28 days including 8 bank holidays) you can pay them for the additional days but it is against the law to pay staff for holidays that they should take as their legal minimum right.

Can I take someone back on who I previously made redundant?

This is not unusual and is often a sign that the company is picking up again after a slump in trade or loss of a contract. If you had to make some important staff redundant you may well start by calling them back up if you find you can now start to grow the business again. Although it is usually much longer, providing there has been a break of at least 1 full week since the redundancy you can reinstate the employee without having to allow continuing employment from their original start date.

What should I do if I think the ‘banter’ is getting out of hand?

Take action to bring things back to an acceptable level before you receive a complaint. If someone takes offence at how they are being treated, or how someone else is being treated, you could have a time consuming complaint to deal with, not to mention some unhappy staff.

If you have noticed it and have become concerned there is a good chance that someone else will feel the same. Dealing with it now before an official complaint will enable you to address it through training and education rather than the disciplinary route, after a complaint.

Are employers obliged to accept applications for voluntary redundancy?

No, the company may choose to invite employees to put themselves forward for voluntary redundancy, but the company can still reserve the right to refuse an application. You may wish to reject applications from employees in certain key roles, to retain a balanced, skilled workforce, or in the event that you receives more applications than you require.

When asking for volunteers for redundancy, you should make it clear and inform the employees that applications may be rejected.

Can I write to my employee’s GP for information about their absence and health?

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.

If your employee agrees to the request the GP will be able to disclose medical information to you. This is a private matter, not an NHS service so the GP will charge the company for the report, usually between £45 and £65.

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.

How long does an employee have to put a claim in to the Employment Tribunals?

A minimum of four months.

Most claims must be brought in the Employment Tribunals within three months of the act complained of (or within three months of the last act in a series of continuing acts). This usually means three months of dismissal.

However, a minimum of one month will be added to this deadline to allow the individual to go to ACAS for Early Conciliation. The Employment Tribunals then have discretion to allow further additional time.

What is ACAS Early Conciliation?

A free telephone based negotiation service offered by ACAS.

Most claims must be submitted to ACAS for compulsory early conciliation before they are permitted to proceed to the Employment Tribunal. ACAS will try to help the parties resolve their claim through negotiation.

How long do I have to respond to an Employment Tribunal claim?

You only have 28 days to file your response to an Employment Tribunal claim.

If you don’t get your response in to the Employment Tribunals within the 28 day window a judgment may be entered against you without you having a further opportunity to defend yourself.

Can an employee sue me as well as the company?

Yes. Some claims may be brought against a person in addition to or in place of an employer. For example, an individual may bring a claim for discrimination against both the company that employed them and their line manager or colleague as the alleged perpetrator of the discrimination.

The company must then decide whether to support the line manager or colleague by helping pay his/her defence fees and his/her share of any compensation awarded.

If the employee wins the Employment Tribunal, what will it cost me?

You may have to pay some or all of the employee’s legal fees, though this is unusual. In 2016/2017, only 0.33% of employers were ordered to pay the successful Claimant’s legal fees.

Awards of compensation vary, but in 2016/2017 the average awards were £16,543 for unfair dismissal and £25,004 for discrimination claims*.

*£36,853 average award for race discrimination claims, £35,663 average for age discrimination claims, £31,988 average for disability discrimination claims, £20,344 average for religion and belief discrimination claims, £19,152 for sex discrimination claims, and £6,026 for sexual orientation discrimination claims.

If I win the Employment Tribunal, will I get my costs back?

Probably not. It’s very unusual for the Employment Tribunals to award an employer their costs back. In 2016/2017, only 0.2% of employers facing an Employment Tribunal claim were awarded an order that the unsuccessful Claimant pay a contribution towards their legal fees.