LBDA LBDA
  Date:
5/9/2010
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1.5 Employing People
 
1.5(a) Becoming an Employer for the 1st time
 
(i) Taking on staff - the options

If you're running a business and you want to expand, you'll need to consider the best options for meeting your new needs - these could include outsourcing or training existing staff or taking on new staff.

Taking on people - whichever way you choose to do it - will always mean some form of investment for your business. But it's equally important to remember that taking this investment seriously can make it more valuable. If you decide to take on new staff, or replace someone who has left, the set of activities described below will help you understand the different ways of taking on people to work for you - and how to choose the ones that best meet your needs.

·         Recruiting new staff

·         The best ways to take on extra people

·         Full-time or part-time employees

·         Fixed-term contracts

·         Employment agency - temporary staff

·         Freelancers and outside contractors

·         Directors and managers

 
(ii) Make a job offer and pre-employment checks

Once you have decided you want to employ somebody, the next stage in the recruitment process is to inform the successful candidate.

There are checks you may wish to make, or are advised to do, such as checking an individual's eligibility to be in the UK and take up the employment in question.

The offer letter should set out the main terms and conditions of the job and whether the offer is conditional, i.e. subject to the outcome of checks such as educational qualifications. The set of activities described below will tell you about how to make a job offer, carry out checks and when these should be done.

·         Make the decision

·         Making the offer

·         References

·         Health checks - when are they appropriate?

·         Checking qualifications

·         Work with at risk adults and children

·         Applying for a criminal records check

·         Withdrawing job offers where checks are not satisfactory

·         Pre-employment checks - data protection issues

·         Things you need to do when you take on a new employee

 
(iii) 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 they can do.

It's important to follow certain procedures and to check each potential employee's eligibility to work, if you wish to avoid facing prosecution for employing somebody who isn't legally entitled to work in the UK or to undertake the proposed work.

You are advised to undertake these checks on all potential recruits as the population of the UK contains a range of ethnic groups. An individual's race, ethnicity or religion is no indication of an entitlement to work here and it is important that your recruitment practices do not discriminate against any person on the basis of their racial background.

The set of activities described below tells you how to ensure that all your potential employees are legally entitled to work in the UK. It also outlines how employers are affected by laws preventing illegal working.

·         Check entitlement to work in the UK

·         When to check documents and how long to keep them

·         Who doesn't need permission to work?

·         Other employment routes

·         Understand work permit arrangements

·         Check if an applicant qualifies for a work permit

·         How to apply for a work permit

·         Extend or change existing work permits

·         Employees from the European Economic Area

·         How migrant workers can contribute to our workforce?

·         How we can check the entitlement of our staff to work in the UK?

·         How we can support our migrant workers?

 
(iv) 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.

The set of activities described below lays out your legal obligations when issuing a contract of employment or a written statement.

·         What a contract of employment is

·         How to change an existing contract

·         Put together an employee's written statement

·         Put together an employee's written statement in separate parts

·         Implied terms of an employment contract

·         When you send a new employee overseas

 
(v) Check your legal responsibilities when taking on an employee

This interactive tool assumes you have selected a new employee but not yet made an offer of employment.

It will help you understand what you need to do to ensure that the candidate you have selected can work legally and safely and it will also provide you with some basic good principles.
 
At the end you'll get information on:

·         whether it's legal to employ the candidate

·         the checks you need to carry out before employing them

·         any types of work they cannot undertake

·         the paperwork you need to receive and provide for tax and National Insurance

·         your health and safety responsibilities

·         your responsibilities if your new employee has a disability

·         the relevant forms and supporting information

This is not a substitute for professional advice. You may also want to consult a professional, trade association or the relevant government department.
 

(vi) Create a written statement of employment

This tool will create a written statement of employment tailored for an individual employee. At the end, you will be able to download the completed statement to your own computer, print it off and give it to your employee.

If filled in correctly, this tool will provide you with a document covering all the employment terms and conditions you legally have to give your employee. It must be issued not later than two months after the beginning of the employment.

If you have already provided a written contract of employment or letter of engagement containing all of the items required in the statement, there is no need for a statement to be provided as well.

Employers who issue written contracts or letters of engagement which do not cover all the items required may wish to expand them in future. Statements do not need to be provided for employees who are employed for less than one month.

Important:
What's the difference between a contract and a written statement of employment?
 
 
(vii) Getting new workers started

As an employer, you have a duty of care to your workers. This includes making sure they are competent, can do their job safely and understand how their work relates to the rest of the business.

You can help a new worker to become familiar with your business and the job they are starting through an induction process. You can use this to explain their role and introduce them to the rest of your workforce.

There's no legal obligation to carry out an induction, but a structured programme helps you to be sure that your new employees get a proper introduction to your business. The set of activities described below explains what you should include in such a programme and how to implement it.

·         The reasons for carrying out an induction

·         Carrying out an induction: some basic rules

·         What to include in an induction programme

·         Provide a new starter pack

·         Tailor the induction to the worker

 
(viii) Employment status

The way you work - and the way people work for you - have very important legal implications.

In simple terms, there are five categories of employment recognized by the law and the tax system. A person could be classed as a self-employed person, a worker, an employee, a director or a contractor.

There are also essential tax and National Insurance contribution differences that come with different ways of working. As an employer, you must recognize the category to which the people who work for you belong, to ensure you fulfill your legal and tax obligations to them.

If someone is classified as self-employed for tax purposes they are usually classified as employed (worker or employee) for employment rights purposes. The set of activities described below provides a general overview of the different employment status categories and what they mean.

·         Workers and employees

·         Am I legally classed as self-employed?

·         Employment status of company directors

·         IR35 and other special rules

 
(ix) Prevent discrimination and value diversity

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, age, 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 law in Northern Ireland is more wide-ranging on matters of discrimination. The set of activities described below tells you what you must know about the law on discrimination and advises on best practice.

·         Discrimination in recruitment and selection

·         Sex discrimination

·         Equal pay and conditions

·         Age discrimination

·         Discrimination against disabled people

·         Discrimination on the grounds of race

·         Discrimination on the grounds of religion or belief

·         Discrimination on the grounds of sexual orientation

·         Discrimination over membership or non-membership of unions

·         Discrimination in day-to-day working practices

 
(x) Keep the right staff records

There are clear legal and business reasons for keeping data on your workers. Sufficient records must be kept to comply with the law. The Data Protection Act 1998 governs how you keep staff records and what you do with them. Under the Act, employees are entitled to access certain records and can seek compensation for damage or distress suffered as a result of a breach of the Act. This means that you should take care when recording information about individuals.

Keeping accurate records, e.g. on staff absences and turnover, can help you take decisions based on facts. This may help you run your business more efficiently.

The set of activities described below explains what records you should keep and for how long. It offers advice on how to set up a staff records system. It also explains your legal obligations as an employer and your employees' rights regarding information held on them.

·         Benefits of keeping the right staff records

·         Set up a staff records system

·         How long to keep staff records

·         Staff records: your duties to protect data

·         Staff records: your employees' rights

 (xi) Set up employment policies for your business

Most employers produce policies that set out the rules and procedures their staff need to know. Policies - on health and safety for example - help employees to understand what the employer expects of them, and how they should carry out certain activities. They also advise employees of the rules that need to be followed and the rewards available to them.

Clear policies will help your business identify and prevent potential risks to your employees and ensure that you comply with the law. They will also help to create a culture where issues are dealt with fairly and consistently.

The set of activities described below identifies key policies that are a legal minimum requirement and those that should be considered for best practice. It also considers which policies should be put in place for different business needs and gives practical guidance on how to write staff policies.

·         What types of policies should I set up?

·         Working time policies

·         Equality policies

·         Health and safety policies

·         Disciplinary and conduct policies - harassment, bullying and disputes

·         General company policies and facilities

·         Training and performance management

·         Pay, rewards and benefits

 
 (xii) Employing part-time workers

For small businesses, employing part-time workers can be an efficient way to keep costs down in areas where you don't need full-time cover. It is also a way to build in flexibility so that you can respond to changes in demand and develop your business.

Part-time workers must not be treated less favourably than full-time workers. Any treatment that puts part-time workers at a disadvantage could risk a complaint to an employment tribunal, or it could lead to a claim of indirect sex discrimination as the majority of part-time employees are women.

The set of activities described below will explain the different types of part-time work, the statutory rights of part-time workers and ways in which your business could benefit from employing part-time staff.

·         Managing part-time workers

·         Part-time employees' rights

·         Benefits of job-sharing

·         Advantages and other points to consider when employing part-time workers

·         Considering requests to work part time

 
(xiii) Responsibilities to employees if you buy or sell a business

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), employee rights are protected when all or part of a business is bought or sold.

Employee rights are also protected when a contract to provide goods or services is transferred, but only where the circumstances of the contract transfer are equivalent to the transfer of a business or undertaking to a new employer.

Under the TUPE Regulations, employees usually transfer to the new employer on the same terms and conditions. You should be aware that the regulations apply to long-term business relationships for contracted services, eg office-cleaning, workplace catering, security guard services and refuse collection, where these services are outsourced, in-sourced or transferred from one contractor to another.

The set of activities described below explains which transfers are covered by TUPE, responsibilities of the old and new employers, rights of employees and the requirements to inform and consult employees affected by the transfer.

·         What is meant by a transfer and who is affected

·         Selling your business - your responsibilities to employees

·         Buying a business - your responsibilities to employees

·         Buying a business - dismissals and privatized business

·         Informing and consulting employees

·         Transfers and employee relations