10 THINGS YOU MUST DO IF YOU HAVE AN EMPLOYEE / EMPLOYEES
I am often surprised in Employment Tribunals, when employers have not realised there are certain duties associated with employing people, so I thought I’d set them out here to be helpful.
- Pre-employment checks: you must check (and record that you have checked) every employee’s Right to Work in the UK, before they start work. In addition, where employees work with children or vulnerable adults, you must make sure they have an enhanced DBS check before they work unsupervised and Accountants need a basic DBS check. You may wish to take up references from previous employers (or you may need to if the roles are regulated) and it might be sensible to make any job offer conditional on the result of that.
- All employees must be given a Statement of Employment Particulars if their employment will last more than a month; currently this must be given within the first two months of employment, although it will become a day-one right from 6 April 2020. Note: a contract will exist as soon as someone accepts a job offer, whether in writing or not. Try to be clear that the written contract will supersede anything said prior to that (and the offer may be conditional on pre-employment checks). Note: if you have fixed term contractors, they are entitled to the same terms & conditions as permanent staff, as are agency workers after 12 weeks. Part-time employees must not be on less favourable terms and conditions than full-time staff.
- Policies and Procedures: You must have a Disciplinary Procedure and a Grievance Procedure, both of which must be at least referred to in the Statement of Employment Particulars. These procedures must be fair and reasonable and you should follow the ACAS Code of Practice. Note: employees are entitled to be Union members, even if you don’t recognise a Union, and they may be accompanied by a union rep. at disciplinary, grievance and other formal meetings. Organisations with 21 employees or more must recognise a union if there is sufficient support from the workforce for that. Where relevant, you must ensure employees are aware of and comply with Anti-bribery laws and with Modern Slavery legislation. You may be liable for breaches if you have not properly communicated this information. You need to have a Public Interest Disclosure (Whistleblowing) Procedure, making sure employees know who to go to if they want to speak out about malpractice, illegal activity, Health & Safety violations etc.
- You must make sure your employees have a safe place to work. If you have 5 employees or more (which may include the owner or Directors), you must have a Health & Safety Statement (or policy).
- You must pay at least National Living Wage/ National Minimum Wage rates to all employees; you must make sure you pay women and men equally; you must provide an itemised pay slip (which may need to set out hours as well as pay); and you also need to make sure you pay the correct pay when employees are on holiday (this can be complicated if they don’t work set hours or if they work overtime or on commission). You must operate PAYE for Tax and National Insurance contributions. You also must pay Statutory Sick Pay (SSP), Statutory Maternity Pay (SMP), Statutory Adoption Pay (SAP), Statutory Paternity Pay (SPP), Statutory Shared Parental Pay (ShPP), as required by their rules. (Note: SSP cannot be reclaimed from HMRC, but with the other statutory payments all/most of the sums can be reclaimed.) If your pay bill is £3 million or more, you will need to pay the apprenticeship levy and If you have 250 employees or more, you must report annually on gender pay.
- You must ensure your employees are aware of the Equality Act and the importance of compliance with it. If you do not do this properly, you may be found vicariously liable for any discrimination or harassment by your employees. This will apply in all activities from recruitment and selection, through employment and termination. The Equality Act also gives parents entitlements to time off (see below) and time off for ante-natal care, and entitles people with disabilities to certain reasonable adjustments to enable them to work.
- You must comply with the Working Time Regulations. These say that employees may not work more than 48 hours per week on average (unless they sign an opt-out form or control their own hours); there are minimum requirements for daily and weekly rest breaks; and there are duties associated with night work. The Regulations also say that everyone must have at least 5.6 weeks’ annual leave entitlement. If you employ anyone under the age of eighteen, you must comply with additional legislation regarding young workers – young workers have different limits on working hours and rest breaks.
- You must allow statutory time off, such as time off for antenatal care; emergency time off for dependants; Maternity leave and other types of family leave; leave for Jury Service; leave for Statutory Tribunals; and so on, and you must properly consider any flexible working requests, for example part-time hours, term-time working or home working (if the employee has at least 26 weeks’ service).
- Under the General Data Protection Regulations, you must keep all employee data securely, with extra security required for sensitive data such as medical information, pay information, DBS checks and so on. You will need to let employees (and candidates) know what information you keep and for how long you keep it, why you have it and how you look after it. You must also register with the Information Commissioner’s Office and may need to pay a fee. Note: Ensuring the safety of data is far simpler with an HR Information System than if you are still using spreadsheets and paper files.
- Pensions: your automatic enrolment duties start when you employ your first member of staff. Staff who are aged between 22 and pension age must be auto-enrolled into a pension scheme if they earn at least £10,000 per year (and can ask to be enrolled if they earn less than that). If you don’t have staff who must be put into a pension scheme now, you still have other duties which include completing your declaration of compliance. Automatic enrolment is a legal duty and if you don’t act in time you could be fined. You’ll also need to monitor your staff’s circumstances in case you need to put anyone into a scheme in the future.
I can let you have more detail on any/all of these if you don’t know where to find the information you need.