Law on Employment

Recruitment

Vacancies can't be filled successfully unless the job has been accurately defined in the first place.

Writing a job description

Preparing a job description is not a legal requirement but it can be useful for deciding the scope of the work, advertising the job, and clarifying what applicants will have to do in the job.

A job description should include:

• the job title
• the position in the company, including the job title of the person to whom the employee will report and of those who will report to them, if any
• the location of the job
• a summary of the general nature of the job
• main duties or tasks of the employee

The person specification

A person specification is not a legal requirement but will be useful when writing a job advertisement and defining the qualities you are looking for in a candidate. Include the knowledge, experience and skills you would like them to have, separating those which are essential for the job from those which are desirable.

The employment contract

The moment an applicant unconditionally accepts your offer of a job, a contract of employment comes into existence. The terms of the contract can be oral, written, implied or a mixture of all three. Even if you do not issue a written contract, you are under a legal duty to provide most employees with a written statement of main employment particulars within two months of the start of their employment with you. The written statement is not itself the contract but it can provide evidence of the terms and conditions of employment between you and the employee if there is a dispute later on.

Ensuring your workers are eligible to work in the UK

Some people are automatically entitled to work in the UK. Others may have restrictions on how long they can stay, whether they can work or the type of work that they can do. It's important to follow certain procedures and to check each potential employee's eligibility to work, to avoid facing prosecution for employing somebody who isn't legally entitled to work in the UK. You should remember when checking a potential employee's eligibility to work that many people from minority groups who live in the UK are British citizens. It is important that your recruitment practices do not discriminate against any person on the basis of their racial background.

Check entitlement to work in the UK

It is a criminal offence to employ anyone subject to immigration control aged 16 or over, who doesn't have permission to work in the UK or to do the type of work that you're offering. The maximum penalty is currently £5,000 per illegal employee on summary conviction in a magistrate's court. However, there is no upper limit to the fine imposed by a Crown Court following indictment.
Check and keep a record of documents confirming an individual's entitlement to work in the UK before employing them. Specified documents, if seen and photocopied or scanned using Write Once Read Many technology, may provide employers with a statutory defense. Look on http://www.ind.homeoffice.gov.uk/lawandpolicy/preventingillegalworking

Ask your employees to provide one of the original documents included in list 1, or two of the original documents from the combinations in list 2:

• A passport showing the holder is a British citizen, or has the right of abode in the UK, (List 1) is sufficient to establish a defence.
• A document bearing a permanent National Insurance number, such as a P45 or P60 no longer provides an employer with a statutory defense if presented on its own. If a potential employee produces a P45, now designated a list 2 document, it must be accompanied by another specified document from list 2. This could include a full birth certificate, issued in the UK which includes the name of the holder's parent or parents, a certificate of registration, or a certificate of naturalisation stating that the holder is a British citizen.

Who doesn't need permission to work? The main groups not subject to immigration control and who are employable without restriction are:

• British citizens
• Commonwealth citizens with the right of abode in the UK
• European Economic Area (EEA) and Swiss nationals - although some will need to register with the Home Office.
• Family members of nationals from EEA countries and Switzerland, providing that the EEA national is lawfully residing in the UK.

Other employment routes There are managed migration routes available to allow overseas nationals to work in the UK without work permits:

• Those entering under the Highly Skilled Migrant Programme - an individual migration route for highly skilled people to come to the UK for work or self-employment opportunities. The application fee for an immigration employment document for this programme is £315.
• Those entering the UK under the Working Holidaymaker Scheme. Commonwealth citizens aged 17-30 can come to the UK for an extended holiday for up to two years and are entitled to work for up to 12 months during their stay under the scheme.
• Students from outside the EEA over the age of 16 are permitted to take some work in the UK, providing that they adhere to the conditions of entry and are given leave as a student.

You can employ a student:

• for up to 20 hours a week only during term-time, except where the placement is to meet the definition of their sandwich course or internship
• full-time only outside their term-time - they must still have valid leave

A student from outside the EEA must not:

• work outside of their valid leave
• engage in business or self-employment
• provide services as a professional sportsperson or entertainer
• fill a permanent, full-time vacancy

As of 1 May 2004 nationals of the new EU countries of Latvia, Slovakia, the Czech Republic, Lithuania, Slovenia, Estonia, Hungary and Poland can live and work in the UK. These countries are referred to as the "A8 countries".

However, the government's Worker Registration Scheme (WRS) monitors the participation of nationals of these new EU countries in the UK labour market.

If you employ an A8 worker who is not exempt from registration, it is their responsibility to apply to register with the Home Office as soon as they begin working, or within one month of starting work for you. They will need to provide evidence of their employment (letter or contract) as part of the application and a £70 fee, unless they already have a certificate of registration.

You should take a copy of the worker's completed registration application form and keep this until you receive official notification confirming that the worker has been registered. This copy will provide you with a defence from conviction for employing an unregistered worker from the A8 countries who is not exempt.

If you employ a non-exempt, unregistered national from one of these eight countries for more than 30 days without retaining a copy of their application form, or their certificate of registration, you may commit a criminal offence under new regulations. In the unlikely event that the Home Office sends you notice of its refusal to register your worker, you should immediately stop employing that person.

Once registered, the Home Office will provide both the worker and you with a copy of a registration certificate. It's the responsibility of your employee to register but it's your responsibility to check they have done so, by copying their application, and keeping your copy of their certificate.

Failure to follow these procedures could mean a maximum penalty of £5,000. Similarly, if your employee's application has been refused and you continue to employ them, you may be committing an offence.

National Minimum Wage rates

The main rate of the National Minimum Wage (NMW) is £5.05. The NMW development rate is £4.25 per hour.

What types of policies should I set up? Policies generally aren't contractually binding, but where they give specific rights and responsibilities they may be enforceable. There are many benefits to having suitable employment policies in place. Setting standards is the key to healthy employer-employee relations. It can reduce the need for disciplinary and legal action. It may also increase productivity and morale as well as help employee retention.
minimum legal requirements to include into policy:

• Maternity/paternity/adoption
• Leave and absence
• Equal opportunities
• Working hours and overtime
• Health and safety
• Pay
• Dealing with harassment, victimisation and bullying

Health and safety policies

Encouraging good health and safety practice is important for your business. This means not just doing the minimum to abide by the law, but also managing the policy in a way which is most beneficial to your type of business, your employees, your clients and the local community.

By law you are obliged to:

• Assess health and safety risks in your workplace,
• Implement suitable policy controls. These need to be written down and stored on file or computer if you have five or more employees.
• Maintain minimum levels of hygiene and comfort, eg ensuring that your workplace is clean, well ventilated,.
• Record and report certain serious health and safety workplace incidents, under the RIDDOR regulations.
• Comply with regulations to protect the environment,

In addition to statutory requirements, you may decide to introduce a range of facilities promoting good health practice, eg a gym, advice on how to give up smoking, alcohol or drugs, and routine health check-ups. The benefits for your business: healthier employees, improved productivity.

A worker is entitled to holiday from their first day of employment and the entitlement is four weeks annually. Pay is based on a normal week's pay. Part-time workers are entitled to the same holidays as full-time workers but this is calculated on a pro rata basis. Every business wants the best person for the job. Unequal treatment, prejudice or harassment discredits you as a business and can be very costly. As an owner or manager you may be held responsible for any discriminatory action by your employees.

It is unlawful to discriminate on the grounds of someone's sex, sexual orientation, status as a married person or a civil partner, race, colour, nationality, ethnic origin, religion, beliefs or because of a disability, pregnancy or childbirth, or subsequent maternity leave or because they are a member or non-member of a trade union. It is also unlawful to discriminate against part-time workers.

The process to follow when a worker leaves

It is important to have a set procedure in place to help you deal with ending a person's employment.

Confirmation of leaving Confirm with the worker:

• the start date of the notice period, if any - see our guide on how to issue the correct periods of notice
• the date they'll leave
• their resignation, in writing, to clarify when their notice period begins and whether they intended to resign - see our guide on when an employee resigns

Where employees are dismissed who have worked for you continuously for a year, they may request a written statement of reasons, which you must provide within 14 days. It's good practice to provide one even if they don't request it. Less specific reasons give less scope for alternative lines of defence if a claim for unfair dismissal is brought. Where employees are pregnant or on statutory maternity/adoption leave, you must provide the statement (even if not requested) regardless of their length of service.

Working out final payments You will need to work out:

• how much pay is due
• what should be deducted from their final pay cheque
• whether any payment/contribution systems should be changed

strong>Exit interviews Conduct a formal exit interview with the worker before they leave to discuss reasons for leaving or get feedback on how the business could be improved.

References The law doesn't require you to give a departing employee a reference unless stated otherwise in their contract, but it is good practice to ask whether they want one.

Retrieving company property This includes retrieving security passes, uniforms, laptop computers etc. You may want to consider changing computer codes and passwords.