02/05/2017

Managing staff can be both rewarding and frustrating in equal measure. The Beswicks’ Employment Team handles dozens of HR queries every week, supporting employers and giving them the confidence to deal with even the trickiest situation. To help you steer through the HR minefield, we’ve compiled six top queries received over recent months.

• We have an employee coming back from ordinary maternity leave but the person covering her maternity is doing a great job. Can we give the returning employee a different job when she comes back?

No, the employee returning from maternity leave has the right to return to her job unless the job is no longer there. Having someone else doing the job doesn’t mean the job isn’t available. There is more flexibility if she was returning after additional maternity leave (over 26 weeks leave). However, either way, you must be very careful of discrimination in these cases.

• Do I have to say yes to a request for part-time working?

If this is a flexible working request, you can only rely on one of the eight statutory reasons for refusing. These include the burden of additional cost on the company, difficulty arranging other staff and detrimental impact on the quality of service. When considering such a request you should always keep in mind indirect discrimination as most requests for part-time working are from women and your approach must be as consistent as possible.

• We are taking over a contract and don’t want to take on all of their staff, can they be made redundant?

It depends on the circumstances but generally not without transferring the staff to you first and only if you have an economic, technical or organisational reason for the redundancy, in order to show it has nothing to do with the transfer. You also have to follow the usual redundancy consultation processes and any redundancy payments due to staff will come from you.

• We’re moving offices and there isn’t enough parking, do we have to provide an alternative?

Free parking can be a great benefit for staff but it is unlikely to be an implied term in their contract and is more often simply the result of the position of the office. Staff may be upset by the change but you are not obligated to provide an alternative. Consider informing staff where parking is available and make sure you provide parking for any disabled employees.

• We are having a disciplinary hearing and the employee wants to postpone as his favourite rep is not available. Can we say no?

The employee has a right to be accompanied at the hearing and can request that the proposed date is changed if their chosen rep is not available. This, however, must be a reasonable request such as postponing the hearing for one week, not six weeks when the rep returns from maternity leave, or where a rep is based in Scotland when your office is in Portsmouth. You also do not have to postpone more than once.

• Can I discipline an employee who hasn’t been performing well for some time and was late for work lots last year?

If you did not raise the lateness issues before and some time has passed, it would be unfair to raise it now. It would be safer to deal with the performance issues formally as a failure to carry out the job successfully can lead to a fair dismissal on its own as a capability matter.

For advice on any aspect of employment law, contact Laura Franklin on 01782 205000 / laura.franklin@beswicks.com at Beswicks Legal or for unlimited access to our expert employment lawyers, find out more about our Your HR service.