Ask the Expert: Employment Law

HR and Quality Assurance Officer, Smita Patel answers your questions on Employment Law:

1. What does the law say about employment?
Sarah Cochrane, Knaresborough

The main piece of legislation is the Employment Rights Act 1996.
Other legislation includes:
• Equal Pay Act 1970
• National Minimum Wage Act 1998
• Pensions Schemes Act 1993
• Working Time Regulations 1998 (SI 1998/1833).
• Employment Act 2002
• Information and Consultation of Employees Regulations 2004 (SI 2004/3426).

2. Do all employees need employment contracts?
Mark Ellis, Pockington

It is best practice to have employement contracts. A contract of employment is a legally binding agreement between an employer and an employee that may be verbal or in writing.

Certain particulars should be put into writing within two months of the start of the contract. This 'written statement of particulars' advises the employee of the more important aspects of the contract of employment.

3. What should the written statement of particulars include?
Daniel Adams, Huddersfield

You should include:
• names of the employer and employee
• date when the employment began
• job title or a brief job description
• remuneration details, including pay scale or rate information, timing of payment (this could be daily, weekly, monthly for example) and the method of payment
• terms and conditions relating to hours of work and the normal working hours
• terms and conditions relating to holiday entitlement including bank holidays
• the employee's place of work or, where the employee is required or permitted to work at various places, an indication of this requirement plus details of the employer's address.

4. What if a written statement of employment particulars is not provided?
Mark Ellis, Pocklington

If the employee requests the written statement and it is not provided, this may lead to an application to an employment tribunal who may:
• determine what the particulars should have been from the surrounding facts, and
• award compensation which will be at a level of either two or four weeks pay up to the current statutory minimum.

5. Can an employer refuse to provide a reference for an employee?
Rachel Hanham, Sheffield

Yes, an employer can refuse to provide a reference. However refusing to supply a reference altogether can be risky. Employers usually do provide references for some or all of the following reasons:
• It is established practice to do so.
• It may be discriminatory to refuse to give a reference.
• There may be an expressed or implied contractual term that the employer will provide a reference.
• A refusal would have adverse consequences on the employee concerned.
• A negligence claim could be made by a new employer if the previous employer failed to reveal something which ultimately causes the new employer loss.

6. Can an employer monitor telephone calls, emails or use of the Internet?
Rob, Huddersfield

This question is extremely hard to answer and legal advice should be taken in each set of circumstances. Monitoring (and tapping) of incoming and outgoing telephone calls, faxes and e-mails on a public telephone system is illegal except as permitted by any regulations or other legislation.
All employers must have a detailed communications, internet and data protection policy in place covering monitoring, use of email and intranet, and data protection. If they do an employer may be able to:
• monitor and or intercept a communication where the employee has given consent in advance, for example in the contract of employment, and
• in certain very limited circumstances monitor and/or intercept a communication where the employee has not given consent.
However, if an employer intends to monitor their employees, they should:
• be clear about the purpose of such monitoring
• conduct an assessment of the impact
• justify the benefits of monitoring communications
• communicate the policy on monitoring to rebut any expectation of privacy of communications in the work environment.

7. Is it ok to refuse an employee permission to take holiday for a religious holiday?
Martin Hall, Bradford

It is potentially indirectly discriminatory to refuse an employee time off for a religious holiday, but whether it can be justified will depend upon the facts. For example, a small gift shop would be able to justify refusing to release an employee for a religious holiday during the Christmas shopping period. However, a large shop of several 100 employees would not be able to justify such a refusal during that period if other staff were able to cover.

While every care has been taken in compiling these notes, CIDA cannot be held responsible for any errors or omissions; the notes are not intended as a substitute for specific legal advice.