Employing staff - in more detail

Recruitment and the job offer

If you have decided to take someone on, then you will need to have an understanding of recruitment and selection. Recruitment is about attracting people to apply for a job and selection is about choosing the right person for the job.

There are different stages of a recruitment process.

First, you will need to think about exactly what help you need and write a job description. This should include any particular qualifications your employee must have – for example, to have a full driving licence, and an estimate of the number of hours and days you will need the person to work.

You can then advertise the job – for example, in your local Jobcentre for free or local shops, or on social media, and voluntary organisations may also have notice boards for advertisements. You may already know someone who could take the job.

Once you have received some applications, you can select the people you'd like to interview for the job. You should prepare a list of questions for the interview that cover the key aspects of the job to make sure that the applicants have the necessary skills and fully understand what is involved.

When you have decided who to offer the job to, you should ask for at least two references, including one from someone they have worked for previously, if possible.

You may also want to request a Disclosure and Barring Service (DBS) check on any potential employee to check they are suitable, depending on the type of work you need them to do.

It is illegal to employ someone who is not allowed to work in the UK. If you are found to have knowingly employed someone who does not have the right to work in the UK, then you could be subject to severe penalties. The UK Border Agency recommends that employers conduct document checks for all new employees to make sure they are allowed to work before employing them. The documents you should check are things like passports or national identity cards. A tool to help you check entitlement to work in the UK can be found on GOV.UK.

You can find further guidance on the type of checks you can make on a prospective employee on GOV.UK.

You can find an A to Z of recruiting and hiring on GOV.UK. You should make sure you understand the rules on preventing discrimination when recruiting and hiring.

The contract

The employment relationship is based on a contract. A contract of employment is basically a legally binding agreement between you and your employee and shows that your employee has agreed to work for you and you have agreed to pay them for this work.

The contract does not need to be in writing (it can be verbal) but having the agreement in writing is likely to reduce the chances of dispute at a later date.

Subject to the various minimum rights and protections set out in employment law, you and your employee are free to agree on whatever terms and conditions you choose. Things that you have expressly agreed on, such as to do with pay and hours are called express terms.

You should be aware that there are some things that are deemed to be in an employment contract, whether they are actually there or not. For example, the duty of the employee to perform the work they are employed to do with care, skill and reasonable competence and the duty of the employer to take care of the employee’s health and safety. These are called implied terms because they are treated as being in the contract even if not written into it or agreed verbally.

Even if you do not have a formal written contract, you must usually give your employee a written statement of their main terms and conditions on their first day (sometimes called 'written particulars'). Often, where the employment contract is in writing, the statement is contained within it.

This written statement must cover things like:

• names of the employer and the employee
• date when employment began
• the scale or rate of pay or method of calculating pay
• how often they are paid
• entitlement to holidays including public holidays, and
• the title of the job that the person is employed to do or a brief description of their work.

This list above is not comprehensive. Your employee must also be given access to other information on their first day, such as about sick pay and procedures (if it is not included in the written statement, they must be told where to find it).

Further information, such as on disciplinary rules and dismissal, and grievance procedures (see below) need to be provided, but these can be provided later.

There is lots of information on employment contracts and written particulars, including templates, on the ACAS website.

Changing an employee’s contract

This will depend on what is in the existing contract you have with your employee.

If you need to change your employee’s contract, you can find some relevant information on GOV.UK. This advises that usually, the employer and employee both need to agree to any contract changes.

If you are looking for more detail on this, or if you cannot agree any changes with your employee, we suggest you look at this ACAS guidance which covers the possibility of serving notice to terminate the existing contract and offering to re-engage the employee on new terms.

Please be aware that the government is in the process of implementing a Code of Practice on dismissal and re-engagement. This code sets out employers’ responsibilities when seeking to change employment terms and conditions, if there is the prospect of dismissal and re-engagement. It requires employers to consult staff and explore alternative options, without using the threat of dismissal to pressure employees to agree new terms. A code of practice isn’t law as such, but if an employer unreasonably fails to comply with it, then this will be taken into account by a court or employment tribunal when considering levels of any compensation.

Note that if your worker is on a 'zero hours contract’, later in 2024, it is expected that the Workers (Predictable Terms and Conditions) Act 2023 will come into force. This will give workers a right to request more predictable terms and conditions of work where there is a lack of predictability to their work schedule. We expect to see some guidance for employers published in due course to help them understand and prepare for the changes.

Pay and conditions

When you employ someone, you will have to agree on pay and other important working conditions, like hours and holiday.

Pay

You must pay your employee in accordance with National Minimum/Living Wage (NMW/NLW) rates.

Hours

Under the Working Time Regulations employees have a right to various things like:

• to work no more than 48 hours per week on average (unless they sign an opt out);
• 11 consecutive hours' rest in any 24-hour period;
• an in-work rest break (of at least 20 minutes) if the working day is longer than six hours;
• one day off each week.

There are enhanced rights for young people (under 18 years old) and special rules about night working.

You should be aware that all employees have a right to request flexible working, for example part time hours or flexitime.

A wide range of possibilities exist, such as annualised hours, compressed hours, job sharing, shift working, staggered hours, term time working etc. Flexible working can also include changes to place of work (including working from home or hybrid working). You can find out more about flexible working below under the heading Other rights.

You can find out more about working hours from ACAS.

Annual leave

Employees are entitled to at least 5.6 weeks' annual leave (or holiday).

For information on annual leave and paying your employee during their annual leave see our Holiday pay section.

Other rights

Employment law gives your employee a number of other rights and protections in addition to those to do with their pay, hours and holidays.

For example, your employee may need to take time off unexpectedly to deal with an emergency, such as having a child at school who gets taken ill.

You can find guidance on what your employee’s rights and protections are in these circumstances on the ACAS website. Time off for dependants for emergencies is typically unpaid, unless pay is provided for in their contract or other policies. If someone needs more time off to look after their child’s welfare, parental leave of up to 18 week’s leave to care for a child up to their 18^th birthday (after 1 year’s continuous employment), is also unpaid.

From 6 April 2024, a new carer’s leave entitlement will provide one week of unpaid leave per year for employees to provide or arrange care for a dependent with a long-term care need.

You may be able to find a way that your employee can keep working (e.g. flexibly) or agree for them to take some annual leave which means that they do not need to take time off in this way. Our guidance on holiday can be found here. GOV.UK guidance on flexible working can be found here.

Note that the right to request flexible working becomes a day 1 right from 6 April 2024 (previously it was a right only after 26 weeks of continuous working). You can read more about this, along with the other changes that are being introduced to the flexible working regime slightly later in 2024, in the government’s press release here.

Once a request for flexible working is made by an employee, employers have an obligation to deal with a request in a reasonable manner within the statutory time period. Employers can only refuse a request on one or more of the 8 statutory grounds:

• Burden of additional costs

• Detrimental effect on ability to meet customer demand

• Inability to reorganise work among existing staff

• Inability to recruit additional staff

• Detrimental impact on quality

• Detrimental impact on performance

• Insufficiency of work during periods employee proposes to work

• Planned structural changes

As alluded to above, some rights and protections apply to your employee as soon as they start work; others depend on factors such as length of service and continuity of employment. For certain rights, various groups of people are excluded.

You can find details of other rights and protections that your employee may have on GOV.UK and/or on the ACAS website.

It is important to note that it is unlawful to treat part-time employees less favourably than comparable full-timers, unless the less favourable treatment can be justified on objective grounds. See GOV.UK for more information.

This means part-time employees should receive the same rates of pay and should not be treated less favourably in the criteria for selecting workers for promotion or redundancy for example.

Dealing with poor performance

You may need to take disciplinary action against your employee in the case of poor performance or unsatisfactory performance – in other words when your employee is not doing the job in the way you want them to.

You should have written disciplinary rules and procedures to deal with employee performance and conduct and you must tell your employee about them. Your rules must say what acceptable and unacceptable behaviour in the workplace is and what action you will take if the rules are broken. The rules should follow the ACAS Code of Practice on disciplinary and grievance procedures. You can find more about that, along with a link to the ACAS Code of Practice on GOV.UK.

Sometimes it will be your employee who is unhappy. If your employee has a concern or problem that they have not been able to resolve informally, they may make a formal grievance complaint to you which you will need to know how to handle. If things go beyond this, you can find information on being taken to an employment tribunal on GOV.UK.

Dealing with disciplinary matters and grievances can be particularly stressful and you should take as many steps as you can to prevent the problems arising in the first place, such as giving your employee a job description when they start working for you and making every effort to ensure that they understand what is expected of them.

You should also remember that often all it takes to sort out any problems is a chat or a quiet word. Further information on solving workplace disputes can be found on GOV.UK.

You should always get specialist advice and support before disciplining or dismissing someone (see below).

Terminating the employment

Sometimes the employment relationship you have with your employee will come to an end.

We discuss notice periods (and payments in lieu of notice), accrued holiday pay and redundancy (and statutory redundancy pay) in our employee leaving section.

If you become insolvent, then some guidance that may be relevant to your employees, can be found on GOV.UK.

Dismissal

Occasionally, you will need to ask your employee to leave. That is, you will need to sack or dismiss them. In law there are different conditions that need to be met before you can safely sack or dismiss an employee. For example, when dismissing staff, you must do it fairly.

Dismissal is normally fair if an employer can show that it is for one of the following reasons:

• a reason related to an employee's conduct
• a reason related to an employee's capability or qualifications for the job
• because of a redundancy
• because a statutory duty or restriction prohibits the employment being continued
• some other substantial reason of a kind which justifies the dismissal.

Even if you have a fair reason, the dismissal is only fair if you also act reasonably during the dismissal and disciplinary process (see ‘Dealing with poor performance’ above).

Further information about how you should go about dismissing someone is given on GOV.UK.

Even if you have acted reasonably, some reasons for dismissal are classed automatically as unfair, such as those relating to:

• pregnancy: including all reasons relating to maternity
• family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
• representation: including acting as an employee representative
• trade union membership grounds and union recognition
• part-time and fixed-term employees
• pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage.

Your employee can complain if they think they have been dismissed unfairly. In most circumstances, employees need to have completed a minimum period of service before they can make a complaint to an employment tribunal about an unfair dismissal:

• at least one year's continuous service for employees in employment before 6th April 2012
• two years for employees starting employment on or after 6th April 2012.

However, there is no length of service requirement in relation to automatically unfair grounds (see above).

For more information on dismissal, see the ACAS website.

It is important to get professional advice if you are thinking about dismissing your employee.

Resignations

A resignation means your employee letting you know that they want to finish working for you. There are many reasons why they may want to leave; for example, it could be because they have found another job or because they are moving away from the area or are retiring.

If your employee tells you they want to resign, there are certain things that you should do, for example, ask that they put their resignation in writing.

Find more information on GOV.UK.

References

Whether your employee has resigned, been made redundant or has been dismissed, you may be asked to provide a reference for them. Although you are not obliged to provide a reference, it is quite common for offers of employment to be made subject to a satisfactory reference from a previous employer. Indeed, you will probably have asked for a reference from the previous employer of your employee before they started work for you.

Giving references is not as straightforward as it seems. When you give a reference, you have a duty of care to the person/organisation who will receive the reference and a duty of care to your ex-employee. Further advice on providing references is available on GOV.UK.