Top 5 Employment Law Questions of August 2018
1. When is it permissible for an employer to terminate the contract of employment of an employee on the grounds of ill health?
Dismissing an employee on the grounds of ill health is anything but straight forward. Lack of capability, including when assessed with reference to health can be viewed as a potentially fair reason for dismissal under s98 of the Employment Rights Act 1996.
Assuming the employer can provide enough evidence that capability is the reason behind the dismissal, it must then be followed with a fair procedure.
Over the years, case law has established 4 main elements that constitute a fair procedure, these include:
• Consultation with the employee
• A medical investigation
• Consideration of alternative employment
• Possible ill health early retirement if there is provision for this
2. What records relating to statutory maternity pay must an employer keep?
An employer must keep the following information on each employee who receives statutory maternity pay:
• The medical certificate (MAT B1) or other evidence relating to the pregnancy that has been provided by the employee
• A record of intended dates of leave advised by the employee and the date the maternity leave officially commenced, if circumstances change
• A record of weeks that SMP was paid and the amount paid each week
• A note of any weeks in the maternity pay period for which SMP was not paid and the reasons why
3. If an employee wishes to resign after disciplinary proceedings have commenced, should the employer continue the disciplinary proceedings?
If the employee’s resignation is with immediate effect, then his or her employment will terminate. There would then be nothing to gain in continuing disciplinary proceedings without the employee who is no longer employed. However, it is important that employers store the disciplinary information for up to one year following the employee’s resignation. This information will be of great use should the employee attempt to claim constructive dismissal or unlawful discrimination following the disciplinary proceedings.
4. What will happen to EU employees after Brexit?
The rules on free movement and immigration in the UK still remain unclear. This topic has been a fundamental issue of the negotiations held between the UK and the EU.
On 8 December 2017, the UK Government announced it had come to an agreement with the EU on citizens’ rights. Following this, a further agreement was reached on the terms of the implementation period. The agreement named “Settled and pre-settled status for EU Citizens and their families” is not yet law and will be subject to change depending on the final outcome of the negotiations.
The Government have implied that there will be an implementation period, which is due to commence on 29 March 2019 (the withdrawal date) and will terminate on 31 December 2020. Under this agreement, EU nationals residing in the UK before 31 2020 will meet the criteria for settled status when they have been a UK resident for 5 years. This will give them the right to work and live in the UK without a fixed time limit.
EU nationals who do not have 5 years continuous residency will be permitted to apply for a permit, which will grant them the right to remain until they reach the 5-year mark, at this point they will be able to apply for settled status.
Those who arrive in the UK throughout the implementation period will be required to register their residency if they stay for longer than 3 months.
5. Can employers still operate childcare voucher schemes following the introduction of tax-free childcare?
Yes, employers can still operate a childcare voucher scheme. However, it is important to note that new entrants will not be eligible to join the scheme from 4 October 2018.
The Government had initially announced that the scheme would end 5 April 2018. However, it was extended by 6 months in March 2018. Employees will continue to reap benefits from an existing childcare voucher scheme, as long as they continue as employees of the employer and that employer continues to offer the scheme.
How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.