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Questions We've Been Asked In March 2022

Q: How should we deal with a grievance that is raised by an employee during a disciplinary process?

A: If a grievance is raised during a disciplinary process the usual process may be to temporarily suspend the disciplinary process to deal with the grievance, however, there is no legal requirement to do this. Where the grievance and disciplinary cases are related or there is cross-over, it may be more appropriate to deal with both of these issues together. Alternatively where the grievance is unrelated to the disciplinary, there will often be no need to postpone the disciplinary process and instead you can simply deal with the grievance separately alongside this. You cannot however just ignore the grievance.

Q: What can we do if an employee resigns without working their notice period?

A: Where an employee resigns without completing their contractual notice period this amounts to a breach of contract. In such circumstances you can consider issuing a claim against the employee however you would have to be able to show that the company has suffered a loss as a result of the breach. Even if you can evidence loss, there is often little benefit in pursuing a claim when you weigh up the time and costs involved against any damages that a court might award.

Q: What should we do if an employee fails to disclose a criminal conviction during the recruitment process?

A: A job applicant is not required to disclose any unspent criminal convictions unless requested and they do not have to readily volunteer this information if they are not asked to do so. An unspent criminal conviction is not a bar to employment, but it is information that you can take into account when deciding somebody's suitability for the role. If a job applicant is asked to disclose any unspent criminal convictions and their failure to do so later comes to light, this would potentially allow you to dismiss them on the basis of dishonesty and breach of trust and confidence. Please note that applicants are not however required to disclose spent convictions unless their job role is excepted from the protection under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.

Q: Can we extend an employee's probationary period?

A: This will depend upon the drafting of your employment contracts and whether you have the contractual right to be able to do so. If you have reserved the contractual right to extend this then you will be able to do so in accordance with the terms of the contract. Ideally, the probation period clause should state the employee will be informed in writing at the end of the period whether they have successfully passed or not, otherwise the period may inadvertently lapse without any discretion to extent it.

Q: What can we do if an employee is Absent without Leave (AWOL)?

A: In the first instance, if your employee is absent and does not make contact to provide a reason for their absence, you should try to contact them as soon as possible. If contact cannot be made then you should write to them to confirm that their absence is being treated as unauthorised and ask them to make contact as a matter of urgency. If the employee cannot provide a good reason for the absence and lack of contact, then you can consider taking disciplinary action.

Q: Can we force an employee to take annual leave?

A: Yes - you can require an employee to take annual leave on certain dates so long as you provide the correct amount of notice legally required. The amount of notice required will depend upon the amount of leave you're requiring the employee to take and you have to give notice that is twice the amount of leave you're requiring the employee to take (e.g. if you wish an employee to take 5 days leave you will have to give 10 days' notice).

Q: If an employee resigns but there is no written contract in place, how much notice are they required to give?

A: In the absence of a written agreement the amount of notice an employee is required to provide depends upon what is 'reasonable' in the circumstances. This will need to be at least one week where the employee has been employed for more than one month but beyond this, there are no set rules and what is reasonable will depend on the seniority of the employee and their length of service.

As a side note, legally, all employees are required to be provided with a statement setting out certain terms and conditions of employment. Since 6 April 2020 this statement must be provided on or before the first day of employment (prior to this the requirement was to provide this within two months of employment staring).

Q: How do you make a distinction between a conduct issue and a capability issue?

A: Conduct issues and capability issues are two separate issues and different processes should be followed when managing each of these issues. Often the distinction can be difficult to make however it is important that you deal with each issue under the correct procedure. Conduct relates to the manner in which a person behaves whereas capability relates to a person's ability to do something and generally their inability to reach the standards of performance expected. Conduct issues should be dealt with under the company's disciplinary policy whereas capability issues should be dealt with under the capability or performance management policy. It is useful to look at whether the employee can't do something (which would be a capability/performance issue) or won't do something (which would be a conduct issue).

Q: I have received a reference request - do I have to respond to this?

A: There is no general legal requirement to provide a reference for an existing or former employee (except in certain sectors and for certain roles which are regulated). Where possible you should ensure that any practice in respect of providing references is consistent. We would recommend that you only ever provide factual references confirming dates of employment and job role. You can state that it is your policy to only provide references containing information as to an employee's role and dates of employment and that this should not be seen as implying any comment about the candidate or their suitability for employment. If you require a template factual reference then please contact your main point of contact who will be happy to provide this.

Q: Do we have to allow our employees to carry over their annual leave if they have been unable to take it because of COVID-19?

A: The Working Time Regulations have been amended to temporarily allow workers to carry over up to four weeks' annual leave into the next two holidays years where it has not been reasonably practicable for them to take it as a result of the effects of coronavirus. At the moment, there is no real guidance as to what 'not reasonably practicable' means, however, the following is the government guidance on what might constitute 'reasonably practicable':

• Whether the business faced a significant increase in demand during covid and the employee was required to continue to be at work;
• The health of the worker and how soon they need to take a period of rest;
• The length of time remaining in the worker's leave year;
• The ability of the remainder of the available workforce to provide cover;
• The extent to which the business' workforce is disrupted by the pandemic and the practical options available to the business to provide temporary cover of essential activities.

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