Taking account of spent warnings
The code of practice issued by the conciliation service Advisory, Conciliation and Arbitration Service (ACAS) recommends that employers should set a time limit on formal warnings that they give to employees.

Commonly employees will be given warnings to last for a period of six or 12 months, although it appears that in appropriate circumstances it can be longer.

But what about the repeat offender whose behaviour or performance merits further action after a warning period has expired? Can you take account of the original warning in any form?

The answer according to the 2006 case of Diosynth-v-Thompson is an emphatic ‘no’.

Changing the charge
The charges against an employee at a disciplinary hearing must be comprehensive and precise as ‘it is only matters charged which can form the basis for a dismissal’. In the Strouthos case, the claimant was successful in part in his claim for unfair dismissal because the disciplinary charge and the reason for dismissal differed.

Unclear reference
Employers commonly fail to appreciate the care required when giving references about current and former employees. Employers are not normally obliged to provide a reference. If employers do choose to give a reference on behalf of an employee, however, then they owe a duty of care in law both to the prospective employer and to the employee themselves.

There is an obligation in giving such a reference to be true, accurate and fair, and such a reference must not give a misleading impression. Just as an employer may put itself at risk by giving a reference which is unjustifiably negative in respect of the individual, they may equally put themselves at risk where they mislead by omission by, for example, failing to mention disciplinary proceedings which concerned an employee before he left the company.

Some employers adopt a policy of limiting all references to the bare facts of employment and stating this to all prospective employers.

A sense of grievance
In 2004, the government introduced the Statutory Dispute Resolution Regulations which required employers and employees to meet minimum legal requirements on disciplinary and grievance procedures. The intention behind these procedures was to reduce litigation by requiring parties to observe minimum internal procedures before litigating their disputes in an employment tribunal.

One of the commonest mistakes by employers, however, is one of the simplest: a failure to recognise and deal with an employee’s written grievance.

Under the terms of the regulations, a written grievance needs to be dealt with without unreasonable delay. It is important to appreciate that employment tribunals have taken a broad view of what can amount to a written grievance.

A grievance doesn’t have to take a specific form. It can be contained in an email, a resignation letter and even in a letter from representatives such as solicitors, rather than the individual themselves.

Taking notice
Most employers will be aware that employees usually require one year’s service to acquire the right to claim unfair dismissal.

So what of the problem employee whose dismissal is considered around the anniversary of employment? Some employers are tempted to take a short-cut over the formalities. They dismiss without notice where it is otherwise due, to prevent the employee obtaining unfair dismissal rights.

Most employment lawyers have been consulted by a client who, to their horror, has taken such pre-emptive action, only to find out too late about s97(2) of the Employment Rights Act 1996.

This little known provision usually extends the last day of employment (for the purposes of qualifying to claim unfair dismissal) by the minimum statutory notice period. So terminating summarily a few days before the anniversary of employment will commonly provide the employee with enough service to claim unfair dismissal and make such a dismissal automatically unfair into the bargain, due to the lack of procedure followed.

Annual leave
One common perception on which many employers rely is the entitlement of their employees to a minimum of 20 days’ holiday a year.

In fact the legislation in this area imposes a slightly different requirement: according to the Working Time Regulations 1998, a worker is entitled to four weeks annual leave per year. ‘Workers’ includes those individuals who provide services personally to the company, such as consultants, agency and casual staff, and who are assumed not to be employees.

Secondly the 20-day presumption derives from an assumption that a worker works a five day week.

So a worker who only works two days per week is entitled to eight days whilst a worker who works six days per week is entitled to 24 days.

Bank Holidays
Perhaps the area that causes most confusion surrounding holidays on a day-to-day level is the issue of Bank Holidays.

Currently there are eight statutory Bank Holidays a year. Contrary to the assumptions of many employees, there is no absolute right (unless granted under the contract of employment) to take Bank Holidays each year.

Also where such holidays are granted, they currently go towards the minimum four week holiday entitlement under the Working Time Regulations 1998.

So, for example, an employee working five days a week who also receives his eight Bank Holidays a year need only be offered an addition 12 days holiday a year to satisfy the minimum statutory requirements to annual leave.

This looks likely to change, however, with the government currently consulting on how to implement a change so that employees will receive bank holidays in addition to their four weeks’ annual leave entitlement.

Adjusting for disability
A key point to understand about disability discrimination is that it is unlike other forms of discrimination in one fundamental respect.

Employers sometimes fail to appreciate is that this positive duty to make adjustments has been left deliberately open-ended by legislators, courts and tribunals. What a ‘reasonable adjustment’ might be will depend on the disadvantages that the employee faces as a result of their disability. Although there are examples of adjustments in the legislation these are not conclusive.

However, when considering whether adjustments are reasonable, the Disability Discrimination Act 1995 says various factors can be taken into account such as how effective and practical the step is, and the employer’s financial resources.