Whether it is everyday HR questions, something a bit more unusual or forthcoming employment law changes, there is a lot for managers to think about at the moment. With this in mind, we take a quick look at some questions you may find yourself asking.
1. Does sickness or holiday during probation delay when an employee gains unfair dismissal protection?
2. Can an employee claim unfair dismissal when a fixed-term contract ends?
3. Can an employer ask about health or disability during recruitment?
4. Is SSP payable if my employee is sick on their first day of work?
5. Must I agree to an employee’s statutory flexible working request?
6. My employees are using AI in the workplace. Do I need a policy on this?
1. Does sickness or holiday during probation delay when an employee gains unfair dismissal protection?
No. Continuous service keeps building even when an employee is off sick or on holiday, so these absences do not change when an employee gains ordinary unfair dismissal rights. This will still be the case when the qualifying period for ordinary unfair dismissal changes.
What is changing, and when?
The qualifying period for ordinary unfair dismissal drops from two years’ continuous service to six months where the effective date of termination falls on or after 1 January 2027. Because of how continuous service and the termination date are calculated, some employees can gain protection sooner than you might expect.
What should we do to prepare?
Review the length of your probationary periods now to make sure they are still appropriate, and deal with any concerns about a new starter’s suitability promptly and correctly. Getting caught out by the change could mean an ordinary unfair dismissal claim.
2. Can an employee claim unfair dismissal when a fixed-term contract ends?
Yes – if they have enough service to qualify for ordinary unfair dismissal, or if the contract was ended for an automatically unfair reason (which needs no qualifying service, for example because the employee made a statutory flexible working request).
Two things to remember:
- In law, not renewing a fixed-term contract on its planned end date counts as a dismissal. If the employee has enough service to claim ordinary unfair dismissal, you’ll need a fair reason and a fair process, carried out in good time. The qualifying period is being reduced, so do not get caught out.
- To end a fixed-term contract before its planned end date, unfair dismissal considerations aside, you usually need a break clause that allows it. Without one, early termination is a breach of contract and the employee could bring a claim.
3. Can an employer ask about health or disability during recruitment?
Not in most cases. The Equality Act 2010 significantly restricts asking about a candidate’s health before offering them a job (or adding them to a pool of successful candidates). Limited exemptions apply – for example, asking what reasonable adjustments are needed for the recruitment process itself.
If you ask prohibited health questions and then do not appoint a disabled candidate, any disability discrimination claim will carry an inference of discrimination, and the burden shifts to your business to prove a non-discriminatory reason for the decision. The Equality and Human Rights Commission (EHRC) can also take action against employers for asking prohibited questions.
4. Is SSP payable if my employee is sick on their first day of work?
Not usually. One condition for Statutory Sick Pay (SSP) is that the employee has done some work under their contract, so it will not be payable if they call in sick on their very first day of ever working for you. The exception: they can qualify on day one if this contract follows an earlier one with you and the gap between them is no more than eight weeks.
5. Must I agree to an employee’s statutory flexible working request?
No – you can refuse in some circumstances, but it is not a step to take lightly, and not before consulting the employee. Key points:
- Requests must be handled in a ‘reasonable manner’ and in line with the ACAS statutory code of practice on flexible working.
- The whole process (including any appeal) must be completed within two months of receiving the request, unless you agree an extension with the employee.
- You can only refuse on one or more of the eight statutory grounds (for example, a detrimental effect on ability to meet customer demand). Some refusals carry higher risk – for example, refusing a woman’s request made for childcare and requiring her to work full time could lead to an indirect sex discrimination claim.
- If a request cannot be accommodated in full, there is an emphasis on compromise where possible.
6. My employees are using AI in the workplace. Do I need a policy on this?
Yes – it is strongly recommended. AI tools can bring real benefits, but employees using them without clear rules creates risk, for example in relation to your confidential information or accuracy of output. A policy can help to protect your business and inform employees about what’s acceptable and expected. Need help putting an AI policy together for your employees? Please get in touch.