Frequently Asked Questions

Employer FAQs

• My employee is underperforming! What can I do?

  Don’t jump straight to dismissal – it’s important to follow the right procedure.  Document the issues, give them the necessary feedback and support, set clear and measurable targets, and offer training, if it would help.  If things don’t improve, you’ll have to go down a formal performance management/capability route (often referred to as a PIP) which, after a series of staged warnings, could ultimately result in their dismissal (with notice). 
  

• What’s the difference between an employer, a worker, and a contractor?

  There are significant differences between these three employment categories. 

  Employees work under a contract of employment, must do the work personally, and have full employment rights such as protection against unfair dismissal, the right to redundancy pay, sick pay and holiday pay.

  Workers generally have to perform the work for their employer themselves, but usually on a more casual or flexible basis.  Workers will still have key employment rights such as holiday pay, sick pay and the minimum wage, but they don’t generally have the right to claim unfair dismissal or to receive redundancy pay. 

  Contractors (who are genuinely self-employed) decide how, where and when to work, should have the right to send a substitute, will usually invoice their “client” for work completed, and don’t have the same rights as employees. 

  It can be very costly for employers if they get this wrong. 

• One of my staff keeps pulling sickies – what can we do?

  There are different processes to follow depending on whether the absence is genuine or if you believe that the employee might be falsely claiming to be sick to take time off work.

  You should check your absence management policy for guidance on how to manage the process, but usually this would be done at a formal disciplinary or capability hearing, depending on the circumstances.  In some cases, you might be expected to get medical evidence, such as an Occupational Health, GP or hospital report.   

• Our employee has breached his restrictive covenants and is working for a competitor – what can we do?

  Post-termination restrictive covenants are a restraint of trade and will generally be unlawful, unless the covenants go no further than is reasonably necessary to protect your legitimate business interests. 

  When it comes to non-competition clauses, their enforceability will depend on factors such as the length of time they’re in place, the level of seniority of the employee, and any geographical restrictions placed upon them.

  There is always the option to go to court to enforce them – whether that’s claiming damages, or an injunction to prevent any further financial damage to your business. 
  

• Can I refuse to agree to a flexible working request?

  Yes, but only for one of the eight statutory reasons for rejection – which can be excessive costs, an inability to meet customer demand, workloads or quality standards, an insufficiency of work during the proposed work times, or a planned restructure within the business that could impact on the request. 

  You must ensure that you treat the request fairly, meet with the employee to discuss the request, and provide a final response to it within 8 weeks.
  

• My employee resigned without giving notice – is there anything I can do?

  An employee’s notice period should be outlined in their contract of employment, but if not, one will be implied.  Only employees with less than one month’s service are able to give no notice before leaving – unless you fundamentally breached their contract, which could give them the right to accept your breach and treat the contract as at an end, with no requirement for them to work their notice period. 

  If you haven’t breached their contract, then you don’t have to pay them for their notice period, and whilst you have the theoretical right to sue them for any losses you suffer as a result of their breach, the reality is that this rarely makes commercial sense. 
  

• Can I change my employees’ working hours or pay?

  Both of these are fundamental terms of a contract of employment, which cannot usually be unilaterally varied without the employee’s consent. 

  That means that, unless your employees voluntarily agree to the change, you’ll need to demonstrate a sound business reason for changing their terms and undergo a full consultation process. 

• Can I monitor my employees’ emails, Teams chats, or internet use?

  Yes, but not covertly.  You need a clear policy, a legitimate reason for doing so (like preventing misuse), and to ensure that you comply with the terms of the GDPR and Data Protection Act 2018, as well as any data protection policies you have in place.

  It’s also usually worth having an IT & Communications Systems Policy and Social Media Policy, so your employees clearly understand the required standards for use of your computer systems.