Taking on a new employee can be one of the most significant steps that a small business can take. Understanding the legal issues when becoming an employer for the first time can make a huge difference to the experience, and costs, for all involved.
Finding the right person
Any potential employer must bear in mind that it is unlawful to discriminate against a would be employee. This includes the way the advert is worded, the format and content of application forms, the physical arrangements for interview, location and timing of interviews and the job and person specifications.
As of October 1, 2010 it is unlawful for employers to ask potential recruits questions about their health within an application form or during interview (subject to certain limited exceptions). This will include asking questions about a potential employee’s prior sickness records.
Making an offer
Any job offer should be set out in writing to avoid confusion as to the potential employee’s duties and responsibilities further down the line. The offer letter should also confirm any conditions to which the offer is subject, for example, receipt of satisfactory references. An employer can at this stage ask an employee questions about their health, and make the job offer conditional upon receipt of a satisfactory report or medical questionnaire.
All employers must carry out certain checks before an individual commences employment in order to clarify that they are entitled to work in the UK. It is a criminal offence to knowingly employ an individual who does not have permission to undertake the work for which they are employed and it is a civil offence to negligently do so. Be sure to ask the same questions of all applicants.
The contract of employment is a key document setting out the duties and responsibilities that the employee and employer will operate. There are a number of things that an employer must by law include in a contract of employment that is given within two months of starting work:
- The names of the employer and employee
- The date the employment starts and the date the employee’s period of continuous employment began
- Pay (or method of calculating it) and interval of payment
- Hours of work
- Holiday entitlement and holiday pay
- A brief description of the work
- Place of work
- Terms related to work outside the UK for a period of more than one month
- Terms as to length of temporary or fixed term work
- Pensions, including a note stating whether there is a contracting-out certificate in force under the Pension Schemes Act 1993
- Clarification of any collective agreements that may apply and
- Certain information on disciplinary and grievance procedures
Employers must comply with the requirements for equal pay between men and women when setting pay for work of equal value. Employers should also be mindful of the National Minimum Wage – see http://bit.ly/EcWZC.
An employer will also need to set up a payroll scheme via HMRC. An employer should therefore always ask an employee to provide their P45.
Employees receive various rights from the first day of their employment. These include:
Statutory Sick Pay (SSP)
Covers employees if they are off work on sick leave for four days or more in a row.
All employees are entitled to a minimum of 5.6 weeks (28 days) paid annual leave per year. Bank and public holidays can be included as part of the minimum 5.6 weeks paid annual leave. Part timers get this pro rata.
Employees aged 18 or over should not be required to work an average of more than 48 hours per week, unless they give you their voluntary consent in writing. You must also allow workers have minimum daily and weekly rest periods.
Most employees will be entitled to take time off work for the birth or adoption of a child. Also, an employee is also entitled to emergency time off work in a number of specifically defined situations, including dealing with an emergency involving a dependant.
Health and safety
An employer has a legal responsibility for their employee’s health and safety at work. Employees should receive health and safety information, training and appropriate protective clothing free of charge.
An employer must not treat workers less favourably because of their race, nationality, ethnic grouping, sex, maternity, pregnancy, disability, age, sexual orientation, religion or belief, membership or non-membership of a trade union or their marital/civil partnership status.
In terms of employees with a disability, unlawful discrimination includes failure to make ‘reasonable adjustments’ to premises, practices and procedures to enable that person to work, or continue working.
While the issues facing an employer when taking on employees may seem overwhelming, when broken down they are, for the most part, commonsense and ensure fairness for both parties.