FRIDAY HR FAQS – Can an employee take annual leave whilst on long term sick leave?

Understandably an employee who is on long term sick leave and taking their annual holiday might make some employers raise their eyebrows, after all if they are well enough to take annual leave, why can’t they return to work?

Not quite, employees on long term sick leave are entitled to take annual leave and there are a multitude of reasons why an employee might be on long term sick leave from work and this does not impact their ability to use their accrued annual leave.

Some key points to consider:

  • Employees on sick leave continue to accrue holiday in line with the Working Time Directive.
  • If company policy is that holiday cannot be carried over into the following year, it is not lawful to enforce this onto employees on long term absence, they must be entitled to carry it over.
  • Even though employees are entitled to take annual leave, as an employer you are not able to force employees to take it whilst on sick leave nor are you able to tell them that if they don’t use it they will lose it on their return.

As an employer you have a duty of care to your employees so it is important to consider their rights in this situation.  Think about the reasons why they may be taking their annual leave, rather than presuming this is indicative of them being well enough to return to work.

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One key reason that employees might want to use some of their accrued leave during their absence is financial necessity. Whilst some employers are able to offer benefits to their employees such as Income Protection or Critical Illness, a large majority, particularly small to medium sized business, are not able to. For this reason and depending on the employer and the length of the absence, they may no longer be on company discretionary sick pay, but on statutory sick pay and beyond the 28 weeks of statutory sick pay, be living on no pay at all. Taking annual leave, which is paid at their usual salary rate, can be a financial necessity at a difficult time.

Other reasons for employees taking leave might be to reduce the amount they have in preparation of a return to work, or they may need to take annual leave for their own well being. Taking annual leave doesn’t necessarily mean that they are going abroad or taking a wild holiday!

As an employer, it can be beneficial for the employee to take some of their accruing annual leave whilst on long term sickness:

  • It can help improve the well being of the employee – financially and psychologically.
  • Allowing leave to be taken during extended periods of absence, will reduce the amount that they will be entitled to when they return to work, which would then therefore reduce them needing to take more time out of the business for holiday.
  • If the employee decided to leave the company, any accrued leave not taken would need to be paid out and depending on the length of the absence, this could be a substantial sum of monies to be paid at one time.
  • Remember, there is no real reason for refusing annual leave and doing so could potentially put an employer under breach of contract (for lack of trust and confidence), as they have no valid reason for declining leave, as they can not claim operational reasons.

Whilst we acknowledge that employers generally want to encourage employees to return to work, they should also support them to improve their well being.

One way to ensure clarity for all parties, is to have comprehensive annual leave and sickness policies, which need to be reviewed regularly to ensure legal compliance.

If you would like further HR advice on handling long term absence get in touch with HR Revolution:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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FRIDAY HR FAQS – How long do I have to take someone to tribunal?

Hopefully this won’t ever happen, but if you do find yourself in a situation where you feel you have been unlawfully treated at work, you can make a discrimination claim at an employment tribunal and if this is the case there are time limits during which you need to make your claim.

The normal time limit for making your discrimination claim at an employment tribunal is 3 months less one day from the date when the discrimination happened. But before making your claim you should put a request in to ACAS, who will then offer you the chance to try and settle the dispute using early conciliation, which is a free service.  To avoid going to court, most people and employers choose to take part in the early conciliation process to settle their workplace dispute, the conciliator will talk through the issues with you or your representative and work with you and your employer to see if a resolution can be found.

If you choose to take advantage of the early conciliation process, don’t worry, the time limit for raising a claim is paused and extended for the duration of the early conciliation period.

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Situations where you may choose to make a claim maybe in situations of unfair dismissal, discrimination or contractual breaches such as unfair deductions from your pay. When the time limit starts, can in some instances be difficult to identify, but in any of these situations the time limit will generally start to run from when the decision was made, not when you were told about it.  If in a situation of discrimination, it takes place over a period of time, the time limit starts to run at the end of that period. If you’re dismissed, it’s much more straight forward and the time limit simply starts to run from the date your employment is terminated.

An employment tribunal will have the final say as to whether your claim was brought in time and will consider any links between incidents of discrimination, the evidence of an ongoing situation and whether there is a continuing relationship between you and your employer.

Although time limits for bringing a claim in the employment tribunal are quite strictly enforced, an employment tribunal does have discretion to extend the time limits where it thinks necessary to do so and fair to both you and your employer. In making this decision, an employment tribunal will consider the reasons for the delay, whether the delay affects the evidence and your actions once you knew you may be taking action.

If you do make a claim it is important that you try to get as much information about your legal rights as possible first.

If you would like further advice on making claims or if an employee has made a claim against your company, get in touch with HR Revolution:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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10 inappropriate questions interviewers need to stop asking!

According to new research, the vast majority of organisations have asked candidates inappropriate and potentially illegal questions during a job interview.

Researchers of the study found that 85% of interviewers have asked questions such as ‘Are you physically fit and healthy’, ‘Have you any plans to start a family’ or ‘Did you grow up outside of the UK’.

All of the above questions are potentially breaching the law, which requires all potential employers to treat candidates fairly.

It’s true though however that many interviewers could be completely unaware that what they think is innocent questioning could be a legal grey area, with 47% saying they have never had official training on what questions to ask in an interview.

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Below are the top 10 inappropriate interview questions that hiring managers have asked:

  • What year did you graduate? (59%)
  • What year were you born? (55%)
  • Do you have any children? (56%)
  • Are you physically fit and healthy? (53%
  • Are you in a relationship or married? (51%)
  • Have you got any plans to start a family? (42%)
  • Where is your accent from? (46%)
  • Will you need flexible time for family life? (46%)
  • Did you grow up outside of the UK? (45%)
  • Will you need time off during half term? (43%)

This highlights the need for training for any person involved in the process of interviewing prospective candidates, so they know what is and isn’t acceptable in the recruitment process.  Ensuring all prospective employees are given a fair and honest opportunity to secure a job based on their skills and ability not their gender, personal choices or maternity/paternity choices.

If you need any HR help, advice or tips on interviewing, get in touch:+44 203 538 5311 or email: talent@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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FRIDAY HR FAQS – Employee or Contractor?

The rules around distinguishing between an employee and an independent contractor may be subtle, but getting it wrong and breaching IR35 rule can result in serious tax and legal consequences for your business!

We thought we’d try and clear this blurred line and clarify the differences!

The three main differences are:

1. Control

Employees generally have limited control over their work, their hours these are set in place at the commencement of employment and the relationship is ongoing. They are restricted from working for another company, customer or generating their own work. Contractors on the other hand cannot be treated with the same level of control, dictating their own working hours, working on multiple projects for multiple businesses simultaneously. A business has no obligation to provide the contractor with work and employment rights do not apply to the relationship.

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2. Pay

Employees are generally paid a regular set amount, agreed on the commencement of their employment in return for working the set agreed hours. The employer will also deduct tax and national insurance contributions from their wages, whereas contractors will need to invoice for their services at an agreed rate per day/week month or fixed price basis. They are not paid via PAYE therefore are responsible for looking after their own tax and NI contributions.

3. Benefits

Whilst contractors do have certain protections, for example for their health and safety whilst on business premises and, in some instances, protection against discrimination, they are not entitled to any employee benefits such as paid holidays, sick pay, company pension or medical insurance.

This can be a grey area, which many employers struggle with, so hopefully the above has given you some starting points to think about!

There is a third status known as a ‘worker’, sitting somewhere between an employee and contractor. This category of the workforce have some, but not all employment rights, as an employee would but more than a contractor. The classification depends on the level of flexibility of the working relationship … but we’ll leave that for another day!

If you need any HR help, advice or tips, get in touch:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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FRIDAY HR FAQS – Requesting a reference – why it’s important and what you can ask for

Bringing a new employee into your business is an important step no matter the size of your business. You’ve completed the recruitment process and believe they are the best candidate for the job. You’ve interviewed them, think that they have the right skills and attitude and found that they would fit in to the culture of the team. So why should you care about confirming their previous employment?

Why ask for references?

Receiving references is an invaluable tool to fact check that the candidate has been truthful about their experience on their CV, that they worked at the company for the time they said and that they performed the role listed on their CV. This confirmation can also provide reassurance that you have chosen the right candidate.

This process can also be used to check that there are no gaps in their employment which are unexplained and could be a cause for concern. Checking references, including a personal reference can explain this and ease your mind as to the reason for any employment gap e.g. career break, travel, job search post redundancy.

At what point do you ask for references?

References can be asked for at any point in the recruitment stage. Typically, they are requested once you have found your preferred candidate. This can be done at the point of making an offer to a candidate or afterwards. Often the candidate receives a conditional offer, with the contract stipulating that receiving satisfactory references are a requirement of the contract. This will offer you protection if the references you receive aren’t satisfactory as you may then be able to withdraw the offer or terminate their employment if they have already started.

You can also ask for a character reference; however, it is worth noting that this would usually be given on a personal basis from their referee and it is unlikely companies will provide one.

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What can you ask for in a reference?

Before requesting a reference, you will need to get the candidate’s consent, they will at that point also give the contact details of their referees.

When contacting their reference, you should ask for the information that you want to know about the employee and what is relevant to the role and your business.

References can include:

  • basic facts about the job applicant, like employment dates and job descriptions
  • answers to questions that the potential employer has specifically asked about the job applicant that are not usually given as basic facts, like absence levels and confirming the reason for leaving
  • details about the job applicant’s skills and abilities
  • details about the job applicant’s character, strengths and weaknesses relating to the suitability for the role they have applied for

It is worth noting that regardless of what you ask for the respondent is not required, by law, to answer each question you ask or to even give a reference at all. Most companies now typically respond with an employment confirmation on their own company headed paper, and usually confirms their employment dates as well as their job title whilst they were working there. All references need to be fair, honest and consistent.

What if their previous employer refuses to give a reference?

Certain companies, such as ones regulated by the Financial Conduct Authority are required by law to give a reference when requested. However, companies in other industries have no obligation to provide you with a reference. If this is the case, you can then ask for other ways to prove their time at that company, such as the employee providing you with payslips or a P60/P45.

Doing your due diligence on new employees by requesting references is a useful way to provide reassurance that you have selected the right candidate, and can help prevent issues that may arise once they have already joined your business.

If you need any HR and talent help or advice, get in touch:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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FRIDAY FAQS – Can an employer ask about my mental health when applying for a new job?

Thanks to awareness days like Wednesday’s World Mental Health Day, the conversation surrounding mental health is getting louder. The stigma attached to talking about our mental health in the same way that we do for our physical health is being lifted and with that there is a growing acceptance that it’s okay not to be okay and to seek support.

The workplace is undeniably an environment that for many people can cause stress and anxiety. If you have a mental health issue then being in a pressured working environment, that may not be supportive of your mental health, can cause further damage to your health and overall well-being.

It’s therefore the role of employers to ensure they have fair practices in place with regards to their approach for identifying and supporting their teams with mental health issues, just as they do for physical health.

As an employee you should expect to be supported by your employer and provided with the necessary support for a mental health issue.

However, is it a concern for those seeking new employment that if they have an existing mental health issue, it may impact upon their likelihood of getting a job?

We want to help debunk some of these crucial questions and shed light on an area of HR that is vital for a happy and productive workplace.

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1. Can I be asked about my mental health issue when I apply for a job? 

In short, no. It’s unlawful for an employer to ask a candidate if they have a history mental health issues during the application process.

If you are asked about your mental health, you are not obliged to answer this, however, if you do choose to disclose this information it is recommended that you do so honestly.

Asking candidates health questions before a job offer is made is unlawful and can be reported to the Equality Advice and Support Service.

If you are asked about your mental health during the application process and then don’t receive an offer, you may want to challenge this as it can be classed as discrimination on the grounds of disability.

2. Are there situations when an employer can ask about my mental health before making a job offer?

There are a few situations when an employer may need to ask about your health before a job offer is made, these can include:

  • To find out if you can take an assessment for a job.
  • To find out if you need reasonable adjustments to the application process.
  • To find out whether you will be able to do the requirements of the job, whilst they also consider any reasonable adjustments that may need to be made.
  • To find out if applications are coming from a diverse group of people.
  • To establish if you have the particular disability required for the job.
  • To assess you for national security purposes.

For example, a lawful question about your health and whether this affects your ability to do the job would be; if you were applying for a job erecting scaffolding and the employer asked questions at the application stage regarding disability, health and whether the applicant has a fear of heights.

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3. What questions can I be asked about my mental health once I’ve been offered a job?

Once you receive a job offer then your new employer is lawfully able to ask you questions about your health.

If your new employer asks questions about your mental health and subsequently becomes concerned due to a mental health issue you may not be able to carry out your job, then it is the employer’s responsibility to seek further advice from your doctor or occupational health.

Should your new employer ask a question about your mental health and then withdraw the job offer without first consulting advice or conducting a further assessment or investigation, then this may be seen direct discrimination and therefore unlawful.

Mental Health is a really important HR issue in the workplace and If you need any help or advice on how to approach it, get in touch:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

HR Revolution; supporting you, your employees AND your business.

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Signs it might be time to initiate a disciplinary

Disciplining an employee is always a difficult decision for an employer or manager to face and equally being disciplined is one of the most stressful things that can happen in a person’s life, so taking this decision can weigh on a someone’s conscience. However, disciplinary action can sometimes be necessary to maintain the health of a business and the satisfaction of its workforce.

Before making a final decision about whether to go down the disciplinary route with an employee, it can be helpful to have some guidelines to distinguish between an employee that needs extra help and one where disciplinary action is necessary.

Habitual Lateness and Absence

If lateness or absence is a perpetual problem with an employee, it’s important to first speak with them to establish whether there may be personal problems that can be addressed with scheduling changes or other means, before making the decision to initiate the disciplinary process.  However, if these types of conversations have not resolved the issues, it will be time to follow the formal disciplinary process.

Noticeable Apathy

Apathy can be a sign that an employee isn’t feeling challenged enough, but it can also be a sign that an employee has given up on a company or is considering leaving. Before assuming that an employee has given up on their job, try to find out whether they are feeling unchallenged or whether they are overwhelmed and inadequately prepared to handle tasks. A simple conversation can often be instrumental in identifying the source.

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Performance Issues

Organisational performance can be unpredictable and multiple factors can influence it. However, if one employee’s performance has noticeably declined or is lagging way behind organisational trends, it can be concerning. Coaching or mentoring should be offered and if their performance still doesn’t improve then disciplinary action will be required.

Frequent Conflicts

If an employee is argumentative with colleagues or management, it may be because they are no longer satisfied with their job or are having personal problems that are affecting their work attitude. While employees should be encouraged to come up with creative solutions to problems, ideas should be expressed respectfully. Continual argumentative tones and behavioral issues should be addressed with disciplinary action.

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Unwillingness to Adapt to Changes

Changes are bound to occur within any type of business, especially as technology develops and more efficient processes are discovered. While adapting to change is difficult for many, a complete unwillingness to make adjustments or a poor attitude about every change that’s introduced can be warning sign that an employee isn’t going to fit into your company culture well anymore.

Lack of Development

If there are programs in place to educate employees and development is encouraged, a lack of development can be a warning sign that an employee is no longer as interested in or as loyal to your company as they may have been previously. While not every employee hopes to move into management, employees should at least show interest in learning about making developments relevant to their job. Employees that refuse to learn may burden a company.

I think the main point that we are trying to highlight here is that in the first instance you should always talk to your employees to establish if there are bigger issues at play, but when this doesn’t work as hard as it may be, disciplinary action may be necessary. If that is the case for you, then the one thing you must remember is disciplinary action is a formal process that must be followed correctly, or it can result in costly repercussions for your business.

If you are unsure whether disciplinary action is the right course of action or if the process you have in place is compliant please get in touch:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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Friday HR FAQs – Can I get a day off work because of the heatwave?

So in case you hadn’t noticed the UK is in the grip of a heatwave, and offices without air conditioning are slowly melting!!! But can you get a day off work?

The simple answer is no.

By law there is no maximum workplace temperature, Health and Safety Regulations simply require temperatures to be “reasonable” and this applies all year round.

However, it can cause issues when temperatures outside are very hot and result in warmer workplaces.  The best way is to undertake a risk assessment to help determine a reasonable workplace temperature; are there windows that can be opened or machines that generate a lot of heat?  Don’t discount your employees opinions, see what their view is on comfortable working temperature.

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Ok so you will have employees that moan weather the office is too hot or too cold, but please don’t just ignore their pleas, don’t let them have cause to raise any grievances.  Have you fans that they can use in the office or portable air conditioning units?

Please be aware that if you employ any disabled employees that have any medical conditions that are directly affected by the heat (or the cold if the air conditioning is turned up to reduce the warmer temperatures) you have a legal obligation to make workplace adjustments.

Relaxing the dress code during a hot summer will help your employees feel more comfortable in the office, obviously we are not talking bikini’s and crop tops, so it is still important to have rules in place of what is and what’s not acceptable.

HR Revolution provide a fully outsourced solution for businesses of all sizes and sectors and can help you with any HR dilemma, give us a call: +44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk  where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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Putting a few HR myths to bed…

At HR Revolution, we’ve heard our fair share of HR myths and misinformation, so we thought we would list below the most common ones and why they are just that…

Employees don’t have a contract unless there is something in writing

A contract of employment is an agreement between an employer and employee whether it is verbal or in writing. Once work has commenced the employment relationship has been forged. A full contract of employment does not need to be given writing to make the agreement legally binding, however it is worth bearing in mind that it is a legal requirement for an employer to provide at least a statement of written particulars to an employee within one month of starting.

You can’t make a pregnant employee redundant

Yes you can. However it must be a fair procedure, you have to be very careful that there is no risk of discrimination in the selection process. Also be mindful that once a pregnant employee goes on maternity leave, they have extra legal protection by having first option on any available positions that they are qualified to do if placed at risk of redundancy. Make sure you take HR advice!!!

 No one can take you to tribunal without two years’ service

It is a common misconception among employers that dismissing an employee who does not have two years of service will mean that they are “safe” from an employment tribunal claim.  But an employee can and for a range of reasons such as discrimination related to any of the nine protected characteristics, like underpayment of wages of the National Living Wage or National Minimum Wage, breach of working-time regulations in terms of holiday pay or a breach of contract.

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I can decide if I want someone to be self-employed

No, there are strict rules for deciding the status of people in a business. It is unhelpful that HMRC and employment law rules are different in deciding if someone is an employee, a worker or self-employed as the recent cases of Uber and Pimlico Plumbers can attest!

You don’t have to give part-time employees the same benefits as full-time employees

Part-time employees must suffer no disadvantage, so must have the same benefits as full-time employees. Many benefits can be pro-rated for part-time employees, such as holiday allowance.

Casual and zero-hour employees do not get holiday

All employees and workers accrue statutory holiday from day one. This is 5.6 weeks prorated to hours worked.

I am not able to contact sick employees

Not at all, as an employer you have a ‘duty of care’ to keep in touch with a sick employee when they are signed-off to see how they are. However, this doesn’t entail daily calls and emails as this could lead to a harassment case. Also, regular contact should not just focus on their return to work, but their well-being and if any realistic adjustments could be implemented to help their return.

So there you have it a few HR myths debunked…

If you need and HR advice or guidance give HR Revolution a call and see how we could help: +44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk  where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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Why small businesses need HR

Interestingly small businesses make up more than 99% of private sector business and account for 60% of private sector employment: there are a lot of small businesses out there! Unfortunately another statistic is that the basic lack of correct management skills is responsible for the failure of over half of them.

Budgets are tight when small businesses start out, therefore a lot of managers are expected to multitask which means dealing with employee issues as well as growing the business. With focus on rapid growth, this results in the need for investment in an HR function being overlooked, which can actually have the opposite effect and halt growth in its tracks. Without the training required or the skills that HR brings, decision makers are not often able to identify and use the talent within their business to be able to push it forward in the right way.

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In most cases, and we see this a lot, small businesses only approach us once the problems have already started or when a major change happens in employment legislation. It seems that the mindset of small businesses is that the HR function is a reactive one, when in reality it should be part of the strategic planning they need from the outset.

Our Managing Director, Wendy Read comments:  “People are the key to a successful business, without them the wheels just do not turn. The problem is that most businesses don’t focus on their people and only concentrate on the bottom line. Our philosophy is simple; focus on your people, hire, on-board, train, manage and develop them and the bottom line will look after itself”.

If you would like to see how an outsourced HR consultancy can help why not give HR Revolution a call: +44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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