While there is no legal obligation to provide a reference for an ex-employee, if any reference is inconsistent, you may land yourself in trouble!
A recent case concerned an employee who had significant periods of absence from work due to her disability. She was subsequently made redundant and, as part of the settlement, a reference was agreed.
The ex-employer provided an agreed reference but offered to talk to the potential employer on the phone. During this call, the ex-employer mentioned the significant periods of absence and is reputed to have said that she would not recommend the employee for the vacancy. As a result the offer of employment was withdrawn by the potential employer.
The employee claimed against both the ex-employer and the potential employer that she had suffered discrimination arising from a disability (ie lost the job offer because of her absence which was due to her disability), and on appeal was successful.
So, in future:
- Ensure you clarify who in the Company is permitted to give references since they need to know what they are doing.
- Any reference must be fair and accurate and, if you intend to include subjective information, make sure that the details cannot be interpreted as being discriminatory. It is worth bearing in mind that the employee can gain access to any personal data held by an organisation!
- It is best to state facts only (eg dates of employment, position held, reason for leaving)
- Ideally only give a reference in writing (a telephone caller may not be the ‘potential employer’ and there will be no proof of what you said in the conversation)
- Ensure that you do not vary from any ‘agreed’ reference (sometime included as part of a settlement agreement
Despite the press coverage following a Romanian ruling, employers cannot randomly monitor employee’s personal emails and messages without cause – especially where policies allow ‘some personal use’. Employers must have clear policies on what personal use, if any, that they permit and when this can take place (eg only in breaks or outside normal working hours); and these policies must be communicated and enforced consistently. If an employer wishes to monitor an employee’s personal communications, an assessment needs to be made to ensure that:
- the employer has a legitimate reason to review the relevant material and
- that the manner in which the review is undertaken is reasonable
The National Living Wage is being introduced in April 2016 and will be £7.20 ph for all employees aged 25 and over. Penalties for non-compliance (for the National Minimum Wage and the National Living Wage) include 200% of the unpaid wages, a heavy fine and being named in the media as a guilty party!
The ‘Living Wage’ which is the wage considered by an independent body to be appropriate for the basic cost of living (and not a legal requirement) is currently £8.25 ph, and is reviewed each November.
Employees who have no fixed place of work now have their journey from home to the first client and from the last client to home classed as ‘working time’. Employers need to check whether the working time of such employees is compliant with the Working Time Regulations and that they are receiving the appropriate rest periods.
Note that this ECJ decision does not imply that payment has to be made for these journeys. It will depend on the individual contract.
With effect from 1 October 2015, the National Minimum Wage increased to:
- £6.70 per hour for aged 21 and over
- £5.30 per hour for 18-20 year olds
- £3.87 per hour for 16-17 year olds
- £3.30 per hour for apprentices (if aged 19, applicable only to the first year of apprenticeship)
Beware – the penalties of not paying the NMW are serious.