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Pre-employment checks: applying for a criminal records check
In this guide:
- Pre-employment checks
- Advantages of pre-employment checks
- Pre-employment checks: identity checks
- Pre-employment checks: checking references
- Pre-employment checks: checking qualifications
- Pre-employment checks: health checks
- Pre-employment checks: applying for a criminal records check
- Pre-employment checks: ensuring candidates are eligible to work in the UK
- Withdrawing job offers where checks are not satisfactory
- Pre-employment checks: data protection issues
Advantages of pre-employment checks
Making pre-employment checks to comply with the law.
Pre-employment checks are an important part of the recruitment process.
They help you to:
- comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
- check that the potential employee is suitably qualified or skilled for the job
- assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
- check that the employee is able to carry out the job - though you must ensure you do not discriminate in breach of the Disability Discrimination Act 1995
Types of checks
There are a range of checks you can carry out, some of which are compulsory and others which may be desirable. These include:
- identity checks - see pre-employment checks: identity checks
- AccessNI disclosures - see pre-employment checks: applying for a criminal records check
- evidence of the right to work and remain in the UK - pre-employment checks: ensuring candidates are eligible to work in the UK
- references - see pre-employment checks: checking references
- qualifications - see pre-employment checks: checking qualifications
- health - see pre-employment checks: health checks
You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job. For more guidance, see how to prevent discrimination and value diversity.
You can make any job offer conditional on the outcome of pre-employment checks.
A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met. See withdrawing job offers where checks are not satisfactory.
You should carry out your checks as quickly as possible once a conditional offer has been made.
Protective security guidance
The National Protective Security Authority (NPSA) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.
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Pre-employment checks: identity checks
Why you should check a candidate's identity and how you can go about it.
The first check you should carry out is to confirm the identity of the candidate and establish that their identity is genuine.
You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.
How to check a person's identity
You can check a person's identity by:
- requesting original copies of documents - such as passports, birth certificates, and driving licences
- asking for copies of documents that confirm the person lives where they claim they do, eg, provide a recent bank statement or utility bill with their name and address on it
- requesting a Certificate of Registration, or a Biometric Residence Permit, and/or immigration documents where relevant
- using a commercial online database checking service
Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.
Job offer templates from Acas including a pre-employment checklist template.
The HM Passport Office has introduced a number of measures to help employers check for identity fraud.
Read more on the HM Passport Office's responsibilities and priorities.
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Pre-employment checks: checking references
How and when you should check references.
Although not compulsory, it is advisable to check a potential employee's references.
You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you should seek their consent before any referees are contacted.
There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority. The easiest way to obtain references is in writing.
References should give facts such as start and end dates, job title, salary, and sickness absences (excluding any absence related to a disability or parental leave).
You may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking specific questions can disclose additional information, for example, details on the employee's performance, integrity, relevant personal information, and reasons for leaving. However, caution should be taken as to how any additional information is interpreted. After an informal conversation, good practice suggests:
- Any information provided should not be used as a substitute for you making your own judgement about employment.
- The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.
- Consideration as to the context and circumstances of the information provided should be carried out, as circumstances can change. It may be appropriate to involve the potential employee in this consideration.
Are references confidential?
Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them, which has been given in confidence. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.
Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.
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Pre-employment checks: checking qualifications
How and when you should check qualifications as part of your pre-employment checks.
As well as looking at references, you should also check the candidate's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, candidates must be in possession of specific qualifications before they can practice.
You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services.
The Council for Curriculum Examinations & Assessment (CCEA) has details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on. Read CCEA guidance on post-16 qualifications.
UK ENIC is the UK national agency for international qualifications and skills and can help you compare overseas qualifications with UK equivalents. Compare overseas academic qualifications (registration required).
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Pre-employment checks: health checks
Anti-discrimination and data protection considerations when asking candidates to complete a health check.
You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow-up, eg, by a medical examination.
Questions about disability and health during the recruitment process
You should take great care when asking about a job candidate's disability or health concerns. You should ensure that you seek this information for the right reasons and not in order to discriminate against disabled people.
The Equality Commission suggests giving job candidates the opportunity on an application form, or on a monitoring form, to indicate any relevant effects of a disability and to suggest any reasonable adjustments which may help them overcome any disadvantage in their potential workplace.
You have an obligation, under the Disability Discrimination Act, to make reasonable adjustments for disabled employees or applicants at all stages of the recruitment, selection and employment process.
Read Equality Commission guidance on hiring new staff.
Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an industrial tribunal to conclude that you have carried out a discriminatory act.
When to carry out pre-employment health checks
You should only complete pre-employment health checks:
- once you have offered the job to a particular person
- where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
- where testing is needed to meet any legal requirement, eg, eye tests for commercial vehicle drivers
- when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act, regardless of whether it is in paper or electronic form
The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.
If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.
You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see how to prevent discrimination and value diversity.
You may be required to pay a fee for a medical report from a candidate's GP. The candidate must give you their written consent before you request a medical report.
Candidates have the right to see the report and can request that it be amended or withheld from you. Even without the candidate seeing the report, the doctor must keep it for 21 days before sending it to the employer.
Alternatively, an employer may refer a prospective employee to occupational health. The employer must seek the candidate's consent before referral, and the employer should pay for the referral.
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Pre-employment checks: applying for a criminal records check
How and when to request an AccessNI check, the application process, and how to use the information provided.
You can apply for a criminal records check for the potential applicant from AccessNI. This is usually required when people are working regularly with children or vulnerable adults or, for example, as part of the taxi driver licensing regime in Northern Ireland. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.
It is important to ensure that a position is eligible for an AccessNI check before starting the process. Eligibility is governed by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (as amended). You should contact AccessNI if you are unsure whether a position is eligible for a check.
Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a criminal records check.
There are three types of criminal records check - basic, standard and enhanced. Legislative provisions may require that either a Standard or Enhanced Disclosure is requested for someone commencing employment in certain sectors. The type of check you will need to make will depend on the work that is to be undertaken.
The Disclosure and Barring Service (DBS) helps employers in Northern Ireland make safer recruitment decisions. The main criminal record checks are now called a DBS check. A DBS check is only necessary for certain types of jobs involving vulnerable groups, eg working with children, in healthcare, prisons and courts. The DBS was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. It is accessible through AccessNI.
For more information on each type of check, see AccessNI criminal records checks.
Avoiding discrimination
Once you have received your copy of the AccessNI disclosure certificate, you can assess whether the candidate is suitable for the job. An AccessNI disclosure will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978, someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore, after a certain period of time, you should treat the person as if the conviction had not happened.
However, a conviction resulting in a prison sentence of more than two and a half years can never be spent.
A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders (Northern Ireland) 1978, including:
- regular contact with children and vulnerable adults
- accountancy
- work as a barrister
- police work
- posts relating to the administration of justice or financial regulation
- posts involving national security
Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:
- how long ago the offence was committed
- the candidate's age at the time
- the relevance of the offence to the job offered
- the penalty awarded
- whether the offence was isolated or part of a pattern of offending
- what is known about the person's behaviour before and since
People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.
For details of your legal obligations when applying for AccessNI checks and using the sensitive personal information on a certificate see employing someone with a criminal record.
Read employers' guidance on recruiting people with Northern Ireland conflict-related convictions.
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Pre-employment checks: ensuring candidates are eligible to work in the UK
Preventing illegal working - the checks you must make, who is eligible for work and who needs permission.
Employers need a sponsor licence to hire most workers from outside the UK. See right to work checks: employing EU, EEA and Swiss citizens.
All employers in the UK have a responsibility to stop illegal workers. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.
British citizens can currently work in the UK without restrictions. Since 1 July 2021, Irish citizens can continue to use their passport or passport card to prove their right to work in the UK.
All other EU, EEA, and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You'll need to check their right to work online using:
- a share code
- their date of birth
You can also check someone's original documents instead if they do not have a UK immigration status that can be shared with your digitally. Check which types of documents give someone the right to work in the UK.
You could face a civil penalty if you employ a worker and have not carried out a correct right-to-work check.
Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UK Visas and Immigration (UKVI).
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
In addition, check if someone can work in the UK on the GOV.UK website.
Employing someone who needs permission to work in the UK
You may need a sponsor licence to employ someone from outside the UK.
You do not need to sponsor an EEA or Swiss national, or their eligible family members, if they arrived in the UK before 11pm on 31 December 2020, provided they applied for status on the EU Settlement Scheme by 30 June 2021 and that application was granted. With limited exceptions, you do not need to sponsor Irish citizens.
Read GOV.UK guidance on sponsorship.
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
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Withdrawing job offers where checks are not satisfactory
Conditional job offers can be withdrawn if checks prove unsatisfactory.
No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.
You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.
If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory - see pre-employment checks: checking references.
You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.
If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement and follow the statutory dismissal procedure in terminating their employment. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg, for discrimination.
If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.
For more guidance, see the employment contract and issue the correct periods of notice.
An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.
Employees cannot claim unfair dismissal before completing one year's service unless it is for a number of automatically unfair reasons. Read more on dismissing employees.
However, an employee dismissed during or at the completion of their probationary period may be able to claim breach of contract if, for example, you have not provided training that you promised would be given.
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Pre-employment checks: data protection issues
Data protection considerations when making pre-employment checks.
The Data Protection Act 2018 applies to personal information - data about living, identified, or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.
Six data protection principles
There are six data protection principles. Information should be:
Lawfulness, fairness, and transparency
You must process personal data that you collect on individuals in a lawful, fair, and transparent manner
Purpose limitation
You must only collect personal data for a specific, explicit, and legitimate purpose, and you must clearly state what this purpose is and only hold the data for as long as necessary to complete that purpose
Data minimisation
You must ensure that the personal data you process is adequate, relevant, and limited to what is necessary in relation to your processing purpose
Accuracy
You must take every reasonable step to update or remove data that is inaccurate or incomplete, and individuals have the right to request that you erase or rectify erroneous data that relates to them
Storage limitation
You must delete personal data when you no longer need it, and timescales are dependent on your business's circumstances and the reasons why you collect this data
Integrity and confidentiality
You must keep personal data safe and protected against unauthorised or unlawful processing and against accidental loss, destruction, or damage
Read Information Commissioner's Office (ICO) guidance on data protection.
The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled. For further information, see ICO guidance on criminal offence data.
Pre-employment guidelines to follow
There are some guidelines you should keep in mind in relation to pre-employment checks.
You should:
- only carry out checks which are necessary
- think carefully about the best point in the process to carry out the different checks
- where possible, only check the successful applicant
- let applicants know what checks will be made and how they will be carried out
- make sure that checks are carried out for a specific purpose
- only use sources that will reveal relevant information
- only rely on information that comes from sources you trust
- give the candidate the chance to explain if a check reveals adverse information about them
- if a third party is to be involved in the process, eg, a previous employer not listed as a referee - let the applicant know
Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. Any information gathered must not be kept for longer than is needed for its legitimate purpose.
The candidate has the right to ask to see any information you hold on them, which you must supply within one month of receiving the request. This information will be provided free of charge; however, where requests are manifestly unfounded or excessive, you can charge a reasonable fee for the administrative costs of providing the information.
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Taking holiday - notice periods, restrictions and sickness
In this guide:
- Know how much holiday to give your staff
- Advantages of managing staff holiday entitlement
- Holiday entitlement and statutory holiday pay
- Calculate holiday entitlement and holiday pay
- Calculating holiday entitlement for atypical workers
- Holiday entitlement for employees on statutory family-related leave
- Pay and time off on public and bank holidays
- Taking holiday - notice periods, restrictions and sickness
- Holiday pay on termination of employment
- Managing staff holiday entitlement: five top tips
Advantages of managing staff holiday entitlement
Details the advantages of managing holiday entitlement for workers in your business.
It is beneficial to both your business and your staff if you manage holiday entitlement correctly.
Disagreements over holidays and holiday pay are common if entitlements are not clearly agreed upon and set out in writing. These disagreements could lead to a deterioration in your relationship with your staff and possible complaints to industrial tribunals.
In addition, almost all workers above school leaving age are entitled to statutory paid holiday entitlement, so you should be aware of what this means for your business and manage how it is worked out for each worker.
Advantages of managing staff holiday entitlement
Effectively managing staff holiday entitlement can bring several business benefits:
Staff motivation
Staff who can take regular holidays can feel more valued and become more motivated about their work, which helps them perform more effectively.
Reduction in stress and mistakes
Having a break from the workplace ensures staff are less prone to mistakes or accidents and less likely to suffer from stress because they have regular opportunities to rest.
Fair treatment
Having an annual leave policy and including paid holiday entitlement in employees' employment contracts ensures the rules and processes are clear to everyone. This will help you to take a consistent approach to annual leave across the business so that employees feel they have been treated fairly.
Prepare and plan for leave
Having an annual leave policy and appropriate procedures in place also minimises the opportunity for disputes. A worker is more likely to be granted an annual leave request if the appropriate procedure has been followed and they have given you sufficient notice of the leave so you can prepare for the absence.
Less sick leave and staff turnover
You should also experience a decrease in sick leave and staff turnover because staff feel more appreciated overall and are less likely to resort to sick leave when they need to take time off work.
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Holiday entitlement and statutory holiday pay
Minimum statutory annual leave entitlement, unused holidays, and how to set these arrangements out in writing.
Almost all workers above school leaving age - not just employees but also, for example, agency and casual workers - are entitled to 5.6 weeks of paid holiday per leave year (28 days for a worker working a five or six-day week).
The 5.6 weeks is a minimum holiday entitlement - you can choose to offer more.
You can count any days off for public or bank holidays towards a worker's statutory holiday entitlement - but only as long as you pay them for those days off. See bank and public holiday dates.
Workers below school leaving age must have a two-week break during school holidays. Read more on employing children and young people.
When leave years may start
You may decide to have one date when your business' leave year starts or have different start dates for individual workers (or groups of workers).
If you do not have written leave arrangements, a leave year will start on the date a worker's employment begins and on each subsequent anniversary of that date.
Holiday entitlement: staff working a six-day week
The statutory paid holiday entitlement is capped at 28 days.
Although 5.6 weeks would equal 33.6 days for someone working a six-day week (5.6 x 6), because of the cap, staff working a six-day week are only entitled to 28 days' paid holiday. However, that is the minimum statutory allowance. If you wish you can increase the holiday entitlement under an employee's contract of employment.
Holiday entitlement and the contract of employment
You must set out an employee's paid holiday entitlement in their written statement of terms and conditions of employment.
This should enable them to work out their entitlement and pay for any untaken holiday if they leave. See the employment contract.
Workers not entitled to the statutory minimum paid holiday entitlement
The following types of workers do not have the right to benefit from the minimum paid holiday entitlement:
- The genuinely self-employed, who can take as little or as much holiday as they choose.
- Those whose jobs may conflict with the requirement to take annual leave requirements, eg the armed forces, the police, and those involved in civil protection (these workers have to rely on their contracts of employment for their rights to holiday).
- Workers in some sectors are excluded from the Working Time Regulations (Northern Ireland) 2016 because they are covered by separate regulations. The entitlement to annual leave of mobile staff working in the civil aviation sector, for example, is governed by the Civil Aviation (Working Time) Regulations 2004.
Carrying over unused paid holiday
A worker may wish to carry over unused holidays from the current leave year to the next.
Under European Union (EU) derived law, a worker must take at least 4 weeks holiday per leave year. If they take less than this, they cannot carry it over.
However, in the UK, the statutory entitlement is 5.6 weeks. What a worker may do with the additional 1.6 weeks depends on their employer's arrangements. You can either:
- have an arrangement that workers must take their full statutory entitlement of 5.6 weeks in any leave year
- allow workers to carry over any of the additional 1.6 weeks that remain untaken into the next leave year - although they must take it by the end of the next leave year
If an employee has an additional contractual entitlement over and above the 5.6 weeks, it again depends on their contract of employment whether or not they can either carry it over or will receive pay in lieu for any of the entitlement that remains untaken.
If you do allow workers to carry over any contractual annual leave entitlement, you can have your own rules on when they must take it. For example, you could state that workers must take the carried-over leave within three months of the start of the next leave year.
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Calculate holiday entitlement and holiday pay
Guidance for employers on how to calculate holiday entitlement, calculate holiday pay, and what to do with untaken leave.
A worker's entitlement to paid annual leave starts on the first day of employment and is not subject to a minimum period of employment.
Holiday entitlement accrual
The Regulations permit an employer to operate a holiday accrual system for workers who are in their first year of employment (only). In practice, this means that a new worker will accrue one-twelfth of their annual holiday entitlement each month they are employed. This will apply from the start of each month.
Calculating holiday pay
For each week of leave accrued, workers are entitled to one week's normal pay. A week's pay is calculated according to the type of work carried out:
- for workers on fixed hours and pay, it equals the amount due for a week's work, averaged over the preceding 12 weeks
- for workers on fixed hours and variable pay (bonus, commission, or piece workers), it equals the average hourly rate (over the preceding 12 weeks) multiplied by the normal working hours in a week
- for shift workers, it equals the average weekly hours of work in the preceding 12 weeks at the average hourly rate
- for workers with no normal working hours, a week's pay is the average pay received over the preceding 12 weeks.
The 12-week reference period should be made up of 12 weeks in which pay was due to the worker. Any week in which no remuneration was payable to the worker should be discounted, as should any weeks where the employee was for any amount of time on sick leave, maternity leave, adoption leave, shared parental leave, parental leave, paternity leave, or parental bereavement leave.
If any weeks are discounted, ie, no pay was received for a particular week, or the worker was on statutory leave as outlined above, earlier weeks should be considered until you get as close to 12 weeks as possible. In these circumstances, the maximum period you can go back is 24 weeks.
If the worker has been employed for less than 12 weeks, holiday pay is based on the number of complete weeks for which the worker has been employed.
Calculate holiday pay for hourly paid staff
To calculate the average hourly rate, you only count the hours where the worker was working and the pay that related to those hours.
Staff should receive the same pay during any holiday period as they would if they were at work. Therefore, when calculating holiday pay for the 4 weeks of paid holiday leave derived from European law, an employer must include payments which are intrinsically linked to the performance of tasks the employee is obliged to carry out under the terms of the contract. This includes commission, bonuses, regularly paid allowances, and payment for additional hours the employee normally and repeatedly works. Other payments, such as overtime payments regularly paid to the employee, should also be included, as should payments for professional or personal status relating to length of service, seniority, or professional qualifications. Employers may decide to extend this calculation to the full 5.6 weeks' statutory paid holiday entitlement, but they do not have to.
However, case law has suggested all paid annual leave should be treated as a composite whole where each day of a holiday a worker takes includes, on a fractional basis, the various elements making up their total holiday entitlement (whether they be contractual or statutory). Employers should take this into account when making holiday payments where they are only applying the law on overtime, commission, allowances, bonuses, etc (as outlined above) to the 4 weeks of holiday derived from European law to ensure underpayments of holiday pay are avoided.
The question of how much pay a worker is due during a period of holiday can be complex and has been the subject of several court judgments. Further information is available from the LRA Workplace Information Service on Tel 03300 555 300.
Calculate holiday entitlement for your employees.
Payments for untaken statutory holiday
In the UK, the statutory annual leave entitlement is 5.6 weeks. A worker must take at least four weeks' paid holiday per leave year.
What a worker does with the remaining 1.6 weeks depends on their employment contract.
For example, you could allow them to carry those 1.6 weeks into the next leave year or state that all 5.6 weeks must be taken by the end of the leave year.
However, you cannot make a payment in lieu of any days that remain untaken. The only time you can make a payment in lieu of the statutory holiday entitlement is when the contract of employment terminates, and the worker has accrued entitlement to holidays and is unable to take them before they leave.
Payments for untaken contractual holiday
At the end of a leave year, you may find you have an employee who has some untaken contractual annual leave, ie, annual leave over and above the statutory minimum of 5.6 weeks.
Depending on their employment contract, the employee may be entitled to either carry over the untaken days or receive a payment in lieu of those untaken days.
When to pay workers their statutory holiday pay
Workers must receive their statutory holiday pay at the time that leave is taken.
It's, therefore, unlawful not to pay a worker while they are on holiday and pay them an allowance as part of their wages or salary instead - a system known as rolled-up holiday pay.
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Calculating holiday entitlement for atypical workers
How to work out statutory paid annual leave for part-time staff, shift workers, casual workers, and others.
There are various ways of working out the holiday entitlement for workers who don't have regular working arrangements or patterns.
Part-time workers
Paid holiday entitlement is calculated pro rata for part-time workers.
For example, if a member of staff works three days a week, they are entitled to 16.8 days (5.6 x 3).
Shift workers
It is sometimes easier to calculate holiday entitlement as shifts.
For example, if a member of staff works four 12-hour shifts followed by four days off, the average working week is 3.5 12-hour shifts. So 5.6 weeks' holiday is 5.6 x 3.5 = 19.6 12-hour shifts.
For other shift patterns, it may be easiest to calculate according to the established repeating pattern.
More irregular working patterns: calculating holidays in hours
Annualised hours
If a member of staff works annualised hours, you need to calculate how many hours a week they work on average over the whole year.
For example, if a member of staff works a total of 1,600 hours a year, or 34.48 hours a week over 46.4 weeks of the year, the holiday entitlement is 5.6 weeks x 34.48 hours a week = 193.09 hours of holiday for the year.
Compressed hours
For someone working compressed hours, for example, a 36-hour week over four days instead of five, their annual holiday entitlement is 36 hours x 5.6 weeks = 201.6 hours of holiday for the year.
Rather than taking a day's holiday, they would take the number of hours that they would have otherwise worked on that day (ie for 36 hours worked over four days, they would take nine hours' holiday for each day otherwise worked).
Calculating no fixed hours contracts (casual work, including zero-hours contracts)
To calculate the average hourly rate, only the hours worked and how much was paid for them should be counted. Take the average rate over the last 12 weeks.
A 'week' usually runs from Sunday to Saturday. Only use another 7-day period (like Thursday to Wednesday) if that's how a worker's pay is calculated.
You can also get further information from the LRA Workplace Information Service on Tel 03300 555 300.
Part days
Calculations may result in part days, eg 22.4 days for someone working four days a week. In some cases, it may be easier to work the holidays out in hours.
If this is the case, you could:
- Allow the worker to leave early or arrive late one day. For example, for someone working an eight-hour day taking 0.4 of a day's holiday, you could allow them to leave after working for four hours and 48 minutes (480 minutes x 0.6 of a working day = 288 minutes) or allow them to arrive three hours and 12 minutes late (0.4 of a working day).
- Round the entitlement up to the nearest full day - or half day if this is still easy for you to administer. You cannot round entitlements down.
- Allow the worker to carry the part day over into the next leave year (and then perhaps round up to the nearest full day).
- Pay them for a part day. However, you can only do this if the worker's paid holiday entitlement is more than 5.6 weeks, as you cannot pay a worker in lieu of an untaken statutory holiday - see calculating and paying holiday pay.
Term-time or part-year workers
Recent case law has determined that workers employed on a continuous contract throughout the year, and who work for varying hours during certain weeks of the year, such as those who work only term time, are entitled to 5.6 weeks of leave each year. This entitlement applies even though there are some weeks in the year when they do not work.
In such instances, holiday pay is calculated by averaging the pay received during the 12 weeks before the commencement of their leave. If there are weeks during the 12-week period where no pay was received, these weeks are disregarded, and the employer must count back to include a total of 12 weeks in which pay was received.
Although there may be times when a part-year worker receives a higher payment than a full-time worker, this is compliant with the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, as the part-time worker is not being treated less favourably. There is no legislative provision to prevent part-time workers from being treated more favourably.
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Holiday entitlement for employees on statutory family-related leave
Holiday entitlement for staff on family-related leave.
Employees taking statutory maternity, adoption, paternity, parental leave, and parental bereavement leave will continue to accrue statutory paid holiday and, in many cases, any contractual holiday entitlement. If, by the end of the current holiday year, an employee has been prevented from taking part or all of their holiday leave entitlement due to being on one of these types of statutory leave, they have a right to carry over up to 5.6 weeks untaken statutory holiday leave into the new holiday year.
Holiday entitlement and maternity/adoption leave
Employees on maternity or adoption leave continue to accrue both statutory and any contractual paid holiday during both ordinary and additional maternity/adoption leave.
A statutory paid holiday cannot be taken at the same time as maternity/adoption leave. When you are planning for the maternity/adoption leave, you may wish to discuss taking any outstanding holiday and perhaps delay the start of their maternity/adoption leave.
Alternatively, it may be possible for them to take holiday at the end of the maternity/adoption leave period.
If a new holiday year starts, the employee is on maternity/adoption leave and holidays haven't been taken, the employee has a right to carry over up to 5.6 weeks of untaken statutory holiday leave to the new holiday year.
When you are planning, you should be aware that maternity and adoption leave cannot start later than the date of the child's birth or placement for adoption, so an early birth or placement could shorten the amount of annual leave the employee is able to take.
Read more on maternity leave and pay and adoption leave and pay.
Holiday entitlement and paternity leave
Employees continue to accrue their statutory and any contractual paid holiday entitlement while they are on statutory paternity leave.
Read more on paternity leave and pay.
Holiday entitlement and shared parental leave
Employees continue to accrue their statutory and any contractual paid holiday entitlement while they are on shared parental leave.
Read more on shared parental leave and pay.
Holiday entitlement and parental leave
Employees continue to accrue their statutory paid holiday entitlement while they are on parental leave. They will also continue to accrue contractual holiday entitlement if this is provided for in their contract of employment.
See parental leave and time off for dependants.
Holiday entitlement and parental bereavement leave
Employees continue to accrue their statutory paid holiday entitlement while they are on parental bereavement leave. They will also continue to accrue contractual holiday entitlement if this is provided for in their contract of employment.
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Pay and time off on public and bank holidays
Including bank and public holidays as part of your workers' statutory paid holiday entitlement.
You do not have to give staff paid time off for bank and public holidays. However, you should set out in a worker's contract:
- any right to time off on bank and public holidays
- whether or not that time off is paid
- what you will pay them if they work one of these days, ie, whether you will pay the normal rate of pay or an enhanced rate, eg, time-and-a-half or double time
Note that if you allow a worker time off for bank and public holidays over a significant period of time, it may become an implied term of their contract via custom and practice, ie, the term is not actually written in the contract document but is still part of the contract.
Part-time staff
Part-time staff have the same entitlement to leave as full-time workers. Therefore, if full-time staff are given paid leave for bank and public holidays, part-time workers should also receive this benefit on a pro-rata basis.
This can be a problem if most of the bank and public holidays fall on days when a part-time worker doesn't normally work.
A best practice example is as follows:
An employer has both part-time and full-time staff. In a particular year, there are ten bank/public holidays. The full-time staff work a five-day week, Monday to Friday. There are also part-time staff working a two-day week, some on Monday and Tuesday, some on Wednesday and Thursday, and some working varying days.
The employer allows all workers a day off in respect of all bank/public holidays falling on a day they would ordinarily have worked. Furthermore, for those part-time staff working Wednesday and Thursday (or varying days) who would never (or rarely) work on the day a bank/public holiday falls, the employer allows them a pro-rata entitlement of days off in lieu based on the number of days they work, by way of best practice. They, therefore, receive two-fifths of the ten-day entitlement.
This approach ensures that all workers enjoy a share of the benefits received by full-time staff.
Read more on employing part-time workers.
Bank and public holiday dates
When the Christmas and New Year public holidays fall on a weekend, other weekdays are declared public holidays. These are usually the following Monday and, if necessary, the Tuesday.
If a worker normally works weekends, and Christmas Day, Boxing Day or New Year's Day fall on a weekend, entitlement to time off depends on their employment contract. This may be something that is explicitly agreed upon in the terms of the contract or could have been incorporated through custom and practice.
However, entitlement will not depend on the contract if you are operating on the statutory entitlement of 5.6 weeks.
See bank and public holidays in Northern Ireland.
Special bank holidays
Dates of bank holidays can be changed or extra holidays declared to celebrate special occasions. For example, there was an extra bank holiday on Monday 8 May 2023 to mark the coronation of His Majesty King Charles III.
A worker's minimum paid annual leave entitlement is 5.6 weeks. There is no statutory time off for bank holidays and public holidays. However, you may choose to include these as part of that worker's entitlement.
Where a worker's contract states they are entitled to the statutory minimum annual leave, an extra bank holiday would not increase their paid holiday entitlement.
However, if a worker had a contract that entitles them to 20 days' annual leave plus all bank and public holidays, they should be entitled to the additional bank holiday as annual leave.
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Taking holiday - notice periods, restrictions and sickness
Holiday request procedures, notice periods what to do when workers are sick.
Workers must give you notice that they wish to take leave. You can agree on the notice period with your workers and should set this out in writing.
If there is no agreement in place, they must give notice of at least twice the length of the intended leave period. You must reply within the same length of time as the intended leave.
For example, if the worker gives two days' notice for one day's leave, you must reply within one day. Even if the worker gives sufficient notice, you may still refuse the request - but be as reasonable as you can. You should retain a record of the refusal reason, and act consistently with respect to any refusals, within reason.
Restricting when holiday may be taken
You may restrict the taking of leave. Restrictions could:
- be stated in the employment contract
- have built up via custom and practice
- be negotiated with trade unions or employee representatives
Examples include:
- specifying periods when leave may or may not be taken
- capping the amount of leave that can be taken at any one time
- shutting down for certain periods, eg, between Christmas and New Year or for two weeks in August
If you don't have an agreement for taking leave and you want workers to take all or part of their holiday entitlement on certain dates, you must give notice of at least twice as long as the leave period.
Resolve clashes between requests for leave by considering the needs of the business, eg peak season or a quieter period, the individual circumstances, or by setting out clear rules for booking leave. It may be helpful to formalise cover for key staff on annual leave.
If you set restrictions on when holidays can be taken, bear in mind the need to avoid indirect discrimination - read more on how to prevent discrimination and value diversity.
You should also note that it's unlawful to prevent a worker from taking their statutory paid holiday entitlement. Therefore, you may have to allow a worker's annual leave request right at the end of the leave year to ensure that they have taken their full entitlement of 5.6 weeks or 4 weeks where you have agreed carry over.
Workers will also be able to carry over up to 4 weeks of holiday leave where:
- the employer fails to recognise a worker's right to paid holiday leave
- the employer fails to give the worker a reasonable opportunity to take holiday leave or to encourage them to do so
- the employer fails to inform the worker that any holiday leave not taken by the end of the holiday leave year, which cannot be carried over, will be lost
Accruing annual leave during sick leave
A worker continues to accrue their statutory minimum holiday entitlement as normal while absent from work due to sickness. This is regardless of how long the period of sickness lasts.
Depending on the terms of their employment contract, they may also accrue any additional contractual annual leave that they would normally be entitled to.
Taking annual leave during sick leave
A worker is entitled to take statutory annual leave while on sick leave.
If the worker chooses to take annual leave while they are on sick leave, but they are not receiving any sick pay, you pay them their normal holiday pay.
A worker is most likely to choose to take annual leave while on sick leave if they are:
- not entitled to sick pay of any kind
- on sick leave for a long period and, as a result, you have stopped paying them sick pay
- due to return to work shortly before the end of the leave year and, as a result, would be unable to take their full holiday entitlement following their return to work
Changing annual leave to sick leave
A worker can choose to change a period of annual leave during which they are sick to sick leave. This would occur if they either:
- became sick while on annual leave
- have a period of sick leave that continues into a pre-arranged period of annual leave
Once the worker returns to work, they can then make arrangements to take the annual leave they missed at a later date.
Where a worker is on sick leave instead of annual leave, you should consider asking them for evidence of their sickness in line with your usual sickness absence procedures and in line with any eligibility criteria for statutory sick pay.
For example, to qualify for full pay while sick, you could:
- require a worker to inform you as soon as reasonably possible that they are sick
- request that they provide you with medical evidence of that sickness
For more information about sick pay, see understanding statutory sick pay.
Carrying over annual leave that is left untaken due to sickness
If a worker is unable to take all their statutory annual leave entitlement within a leave year because of illness, they will be entitled to carry forward up to 4 weeks of the unused statutory entitlement to the next leave year. Holiday leave carried over in this way must be taken by the end of the period of 18 months from the end of the holiday leave year in which the entitlement originally arose.
If you need further advice on sick leave and/or annual leave, you should contact the Labour Relations Agency Workplace Information Service on Tel 03300 555 300.
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Holiday pay on termination of employment
Calculating holiday pay when workers leave your employment.
When your workers leave a job - even if you have dismissed them without notice for gross misconduct - they must receive pay for any statutory leave they are entitled to in the current leave year but have not taken.
This entitlement is not subject to a minimum period of employment.
Formula to calculate pay due to workers who resign
You can work out the pay due using the simple formula (A x B) - C, where:
- A is the total holiday entitlement for the year
- B is the fraction of the year to the date of leaving
- C is the amount of holidays already taken
Example: Part-time worker
For example, a part-time worker works three days per week. Like all workers, they are entitled to 5.6 weeks of paid annual leave.
They leave a job seven months into the leave year, having taken eight days off. This is the equivalent of 2.66 weeks (8 ÷ 3).
Applying the formula above: 5.6 x (7 ÷ 12) - 2.66 = 0.61 weeks' leave to be paid in lieu.
Note that, if you need to, you should round this figure up to prevent underpayment.
If you pay a worker on a daily basis, you can also work out their outstanding holiday entitlement in days.
Example: Full-time worker
For example, a worker working five days per week is entitled to 5.6 weeks per year, the equivalent of 28 days (5.6 x 5).
They leave a job three months into the year, having taken four days off.
Applying the formula above: 28 x (3 ÷ 12) - 4 = 3 days' leave to be paid in lieu.
Note that, if you need to, you should round this figure up to prevent underpayment.
You need to get the worker's signed agreement to make a deduction from the final payment to them for any leave taken over their entitlement.
Calculate pay when workers fail to give the correct period of notice
Holiday pay would usually sit separately from notice entitlement and would be earned up to the date the worker leaves your employment.
However, if a worker leaves employment without giving the correct period of notice, they could be in breach of their employment contract if the contract contains a clause stating what will happen if this occurs eg deductions will be made from earned pay.
Calculating leave pay due to workers who you dismiss
If you dismiss a worker, they have the right to be paid for leave accrued during their period of employment, no matter how short it was.
To work out B when using the formula above, you need to know the worker's termination date.
If you dismiss a worker with notice, the termination date is the date the notice period expires.
If you dismiss a worker without notice, the termination date is the date you summarily dismissed the worker.
An employee's written statement of employment particulars should contain information to enable them to calculate their entitlement to accrued holiday pay when they leave.
Taking annual leave during the notice period
A worker may wish to take some or all of their outstanding annual leave as part of their notice period. This should be treated the same as for any other holiday request - taking into account your usual procedure for authorising annual leave. Read more on taking holiday - notice periods, restrictions and sickness.
You can also insist by giving appropriate notice, or because it is clearly expressed in the contract of employment, that a worker takes any holiday owed to them as part of their notice period.
If a worker takes part of their paid leave entitlement during their notice period, you may reduce their notice pay by the amount of holiday pay, provided it is in respect of the same leave year.
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Managing staff holiday entitlement: five top tips
Follow these tips to help you successfully manage each worker’s holiday entitlement.
The majority of your workers are legally entitled to paid holidays. The following top tips will help you to successfully manage each worker's holiday entitlement.
Tips for employers to manage staff holiday entitlement
1. Calculate holiday entitlement
A worker's statutory paid holiday entitlement starts on the first day of employment and is 5.6 weeks per year (28 days for a worker working a five or six-day week) - see holiday entitlement and statutory holiday pay.
2. Consider irregular hours
Ensure that you work out holiday entitlement for any staff who don't have regular working arrangements. These can include part-time workers, shift workers, and casual workers - see calculating holiday entitlement for atypical workers.
3. Include in employment contracts
Set out your employee's paid holiday entitlement in their employment contract to avoid any disagreements - see the employment contract.
4. Consider bank and public holidays
You do not have to give staff paid time off for bank or public holidays, but ensure that you include this in your employees' contracts. If you allow a worker time off for bank and public holidays over a significant period of time, be aware that it may become an implied term of their contract, even if it is not written in the contract of employment - see pay and time off on public and bank holidays.
5. Agree notice periods
Workers must give you notice if they wish to take leave. You can agree the notice period with them and you should set this out clearly in writing - see taking holiday - notice periods, restrictions, and sickness.
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Qualifying for adoption leave
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £187.18
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Dismissals on conduct grounds
In this guide:
- Dismissing employees
- Types of employee dismissal
- Fair dismissal
- Unfair dismissal
- Unfair dismissal: employee eligibility
- Dismissals on capability grounds
- Dismissals relating to industrial action
- Dismissal due to illness
- Dismissals on conduct grounds
- Whistleblowing and dismissal
- Whistleblowing: Qualifying disclosures
- Whistleblowing: Exceptionally serious failures
- Whistleblowing: Right of complaint to an industrial tribunal
Types of employee dismissal
The different types of staff dismissal and unfair dismissal claims.
There are several types of staff dismissal:
- fair dismissal
- unfair dismissal
- constructive dismissal
- wrongful dismissal
Fair and unfair dismissal
A dismissal is fair or unfair depending on your reason or reasons for dismissal and whether you act reasonably during the dismissal process. Industrial tribunals/arbitrators follow previous legal decisions in deciding what is reasonable. What is unfair dismissal and what is fair dismissal?
Constructive dismissal
Constructive dismissal occurs where an employee resigns because you have substantially breached their employment contract, for example:
- cutting wages without agreement
- unlawfully demoting them
- allowing colleagues to subject them to harassment, bullying, victimisation, humiliation or discrimination
- unfairly increasing their workload
- changing the location of their workplace without contractual authority
- making them work in dangerous conditions
The breach of contract can result from either a single serious event or the last in a series of less serious events.
An individual may claim constructive unfair dismissal. A constructive dismissal is not necessarily an unfair one but it's hard for an employer to show that an action in breach of the contract was, in fact, fair.
Wrongful dismissal
Wrongful dismissal is where a contractual term is broken in the dismissal process, for example, dismissing an employee without giving them proper notice.
For further information see the Employers' Handbook Section 18: Disciplinary issues and dismissal (PDF, 95K).
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Fair dismissal
You must have a valid reason for dismissing an employee - understand the reasons that constitute a fair dismissal.
To dismiss an employee fairly, you must first have a fair reason for doing so. Potential reasons for fair dismissal include:
- conduct
- capability
- redundancy
- a statutory requirement which could prevent the employment continuing, such as a driver losing their driving licence
- some other substantial reason - any other potentially fair reasons fall into this category
An example of 'some other substantial reason' would be the dismissal of an employee who was taken on as a temporary replacement for an employee on maternity leave. For such a dismissal to be fair, you must have told the replacement employee at the beginning of their employment that the job was only temporary.
In order for any dismissal to be fair, you must also act reasonably and fairly during the dismissal procedure.
Acting reasonably
There is no statutory definition of 'reasonableness'. Reasonableness will be judged taking into account the employer's size and resources and will also consider whether the employer:
- raised and dealt with the issue promptly and consistently throughout the process
- genuinely believed that the reason for dismissal was a potentially fair one
- had reasonable grounds for that belief
- carried out proper and reasonable investigations where appropriate
- followed statutory dismissal and disciplinary procedures
- informed the employee in writing why they were being considered for dismissal and listened to their views
- allowed the employee to be accompanied at disciplinary/dismissal hearings and appeals
- gave the employee the chance to appeal against the decision to dismiss
Reasonableness may also depend on whether the employee could be expected to understand the consequences of their behaviour.
Dismissal and disciplinary procedures
You must set out your dismissal and disciplinary rules and procedures in writing. Sample dismissal procedures (DOC, 14K).
There is a minimum statutory procedure that must be followed when you decide to dismiss an employee. Failure to follow this procedure may result in a finding of automatic unfair dismissal.
If you fail to follow the statutory procedure, where it applies, and the issue is subsequently heard by a tribunal, any compensation awarded to the employee could be increased by between 10% and 50%.
You should follow the good practice advice set out in the Labour Relations Agency (LRA) Code of Practice on Discipline and Grievance.
Additional advice, including sample procedures, can be found in the LRA guidance on advice on handling discipline and grievances at work.
Though tribunals/arbitrators do not have to take this booklet into account, it provides more detail and guidance which may be helpful.
Summary dismissals
Summary dismissal is the dismissal of an employee without notice or pay in lieu of notice - this occurs when they have committed an act of gross misconduct.
You should investigate the circumstances of the misconduct before dismissing the employee.
However, if you feel that you have no choice but to dismiss an employee, you must still follow statutory procedures.
Staff probationary periods
If you decide to dismiss an employee during their probationary period, you must follow at least the statutory dismissal and disciplinary procedure.
Third-party pressure to dismiss an employee
If a customer or client threatens to withdraw their business unless you dismiss one of your employees, only an industrial tribunal/arbitrator can determine whether or not such a dismissal is fair. Such dismissals are normally categorised as 'some other substantial reason'.
You cannot however take into account pressure exerted by a trade union by the calling or threatening of industrial action.
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Unfair dismissal
Reasons that automatically constitute the unfair dismissal of an employee.
Even if you think you have dismissed an employee fairly, they could decide to bring an unfair dismissal claim because they believe that:
- the reason you gave for the dismissal wasn't the real one
- you dismissed them for an unfair reason - see unfair dismissal
- you acted unreasonably, eg by failing to give the employee plenty of warning in the run-up to taking the decision to dismiss them
How to fairly dismiss an employee fairly
If you think you may have to dismiss an employee, make sure that you:
- Have a fair reason for dismissal.
- Follow - at the very least - the statutory dismissal procedure. If you unreasonably fail to follow the statutory dismissal procedure and the issue is heard at tribunal, any compensation awarded to the employee could be increased by between 10% and 50%.
- Follow any contractual disciplinary/dismissal procedure you may have, as well as the guidance outlined in the Labour Relations Agency (LRA) Code of Practice on Discipline and Grievance Procedures. Your contractual procedure should comply with the code.
See fair dismissal.
Penalties for unfair dismissals
If an employee has been unfairly dismissed, the employer may be ordered to reinstate or reengage the employee. This however is an exceptional outcome.
Invariably, a tribunal or arbitrator will award compensation, made up of a basic award that depends on the employee's age, gross weekly pay, length of service, and a compensatory award.
They can also make an additional award if you fail to follow an order to reinstate or re-engage the employee.
Apart from in health and safety and whistleblowing cases, there is a limit on the amount which can be awarded for unfair dismissal. For the latest limits on awards, see our table of current tribunal and arbitration compensation limits.
The Labour Relations Agency Arbitration Scheme
The Labour Relations Agency (LRA) Arbitration Scheme provides an alternative to having a case heard by a tribunal to resolve an employment-related dispute (for example, claims of unfair dismissal, breach of contract or discrimination, etc).
The scheme is quicker, confidential, non-legalistic, less formal, and more cost-effective than a tribunal hearing.
Under the scheme, an arbitrator's decision is binding as a matter of law and has the same effect as a tribunal.
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Unfair dismissal: employee eligibility
Employer consequences if you dismiss someone unfairly.
Employees can usually only claim unfair dismissal if they have worked for you for at least one year.
There are a number of reasons for dismissal that are automatically unfair. Most of these do not require the employee to have a minimum of one year's service, ie the employee will be able to claim unfair dismissal from day one of employment.
Who cannot complain to a tribunal about unfair dismissal?
The right to complain to a tribunal about unfair dismissal is also not available to:
- Self-employed people.
- Those who are not employees, eg casual workers, independent contractors or freelance agents.
- Members of the armed forces.
- Employees who have reached a settlement with their employer via Labour Relations Agency (LRA) conciliation.
- Individuals working under an illegal contract, eg a barman who is under the age of 18 years old or employees in receipt of untaxed monies.
- Employees covered by a dismissal procedure agreement that has been exempted from the unfair dismissal provisions by legislation. This is a rarely exercised legal provision.
- Employees taking part in unofficial industrial action (unless the dismissal is for certain specified reasons, eg taking family leave or making a protected disclosure). For more information, see the page in this guide on dismissals relating to industrial action.
- The police (although police staff may make unfair dismissal claims where the dismissal relates to health and safety or the making of a protected disclosure).
- Those employed as a master - or as a member of the crew - of a fishing vessel where the individual is paid only by a share in the profits or gross earnings of the vessel.
- Employees who have reached a settlement with their employer via a 'compromise agreement'. This is an agreement reached, with the benefit of a relevant independent advisor who has professional indemnity insurance, in which the employee waives their right to make a complaint in relation to the dispute to which the settlement relates. This means that the agreement must specify the legal basis for the dispute - it cannot state that it covers all the possible employment-related claims.
Exemption from the unfair dismissal provisions
The parties to a dismissal-procedures agreement can apply jointly to the Department for the Economy to substitute provisions of the unfair dismissal legislation. Such substitution may be allowed if all the following points are satisfied:
- every trade union which is a party to the agreement is independent
- the agreement has a procedure to be followed if an employee claims to have been unfairly dismissed
- the procedure is non-discriminatory and available to all relevant employees
- the procedure gives employees a similar level of protection to that provided by the legislation
- the agreement includes provision either for arbitration in every case or allows arbitration in cases where a decision can't be reached or where a decision raises a question of law
- the agreement clearly defines which employees it applies to
Lay-offs and short-time working
You may temporarily lay off an employee or put them on short-time working, eg because of a downturn in work. This does not necessarily amount to a redundancy dismissal. You can only do this if the terms of their contract of employment allow it or by agreement with the employee. See Employers' Handbook Section 23: Lay-off and short time working (PDF, 33K).
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Dismissals on capability grounds
How to dismiss an employee fairly when they are incapable of doing their job properly or commit some form of misconduct.
Sometimes an employee is incapable of doing their job to the required standard. This may be because they don't have the right skills or aptitude for the job.
They may also be capable of doing their job, but unwilling or reluctant to do it properly. In these particular circumstances, you would deal with the issue as one of misconduct and follow your company disciplinary procedures and the statutory dismissal and disciplinary procedures (if they apply). Otherwise capability is a separate dismissal category to misconduct. See dismissals on conduct grounds.
In most cases involving capability, you can help an employee improve by taking informal action, eg by offering training/mentoring or another suitable job (you would only redeploy to another suitable job if this is something that they agree to at this stage).
Capability dismissals: lack of skills/aptitude
To ensure that any resulting capability dismissal is fair when formal action is taken - you should:
- Inform the employee in writing of the performance issues that exist and invite them to a meeting to discuss these issues.
- Following the meeting, give an employee who is found to be performing unsatisfactorily a written note, as a summary and explanation ideally, setting out the performance problems identified at the meeting, the improvement that is required, a reasonable timescale for achieving this improvement, a review date and any identified measures of support you will provide to assist them to meet the required standards.
- Inform your employee that the note represents the first stage of a formal procedure and that failure to improve could lead to a final written warning and, ultimately, dismissal. You should keep a copy of the note and use it as the basis for monitoring and reviewing performance over the specified timescale - see managing staff performance. You should also inform the employee that they may appeal at any stage of the formal process.
- If there is a failure to improve in the timescale outlined, repeat the above procedure and issue a final written warning.
- If again there is a failure to improve within the timescale set out in the final written warning, this may result in dismissal.
- Finally, you should note that some exceptional acts of incapability can merit summary dismissal.
- Throughout the formal process, employees have the right to be accompanied to all meetings and appeal meetings and to appeal to a more senior manager - ideally one not involved in the initial meetings. To read more on the right to be accompanied, read the LRA Code of Practice on Disciplinary and Grievance Procedures.
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Dismissals relating to industrial action
How to ensure that you dismiss an employee fairly for reasons relating to industrial action.
It is automatically unfair to dismiss workers for taking part in official industrial action:
- In the 12-week period from the day the industrial action starts.
- That lasts longer than 12 weeks - but only if you haven't taken reasonable steps to resolve the dispute. Only an industrial tribunal/arbitrator can decide whether or not you've taken the necessary steps to resolve the dispute.
Subject to some exceptions (see below), an employee dismissed while taking part in unofficial industrial action can't generally claim unfair dismissal.
For the difference between official and unofficial industrial action, see our guide on industrial disputes.
If you 'lock-out' employees taking industrial action, the days of the lock-out are not included in the calculation of the 12-week protected period. A lock-out is where you prevent employees from getting to their workplace, eg by locking the doors to the premises.
Apart from this - subject to some exceptions (see below) - an industrial tribunal/arbitrator can't hear a complaint of unfair dismissal from an employee dismissed while taking part in official industrial action as long as you have:
- dismissed all those who were taking part in the action on the same date that you dismissed the person complaining of unfair dismissal
- not offered re-engagement to any dismissed employee within three months of the dismissal date without making the person complaining of unfair dismissal a similar offer
Exceptions
The exceptions are that a tribunal/arbitrator can hear a complaint of unfair dismissal from an employee dismissed while taking part in industrial action - either official or unofficial - if the main reason:
- was that the employee took certain specified types of action on health and safety grounds
- related to maternity/paternity/adoption/parental/shared parental/parental bereavement leave, pregnancy or time off for a dependant
- was that the employee exercised their rights under the Working Time Regulations (Northern Ireland) 2016
- related to the right to request flexible working arrangements
- was that the employee had been summoned or took time off work for jury service
- was that the employee took certain specified types of action as an employee representative or as a candidate to become one, or taking part in the election of such a representative
An industrial tribunal/arbitrator can also hear a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action if the reason or main reason for the dismissal was that the employee made a protected disclosure.
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Dismissal due to illness
How to handle dismissing an employee due to long-term ill health.
Dismissal due to capability may also include instances where the employer dismisses because the employee is no longer capable of doing the job they were employed to do because of illness.
Occasionally an employee may have to leave your employment because of long-term ill health. Sometimes the employee will simply choose to resign. However, you might eventually have to consider dismissing them.
In order for a dismissal to be potentially fair, you must ensure that you regularly communicate and consult with the employee, take appropriate medical advice, consider the effects of the absence on the business, consider alternatives to dismissal and, if appropriate, take account of any reasonable adjustments as required under disability discrimination legislation. See employ and support people with disabilities.
Finally, before dismissing an employee you must also ensure you comply with the statutory dismissal procedures.
Prior to dismissal due to illness
Before dismissing an employee, you should consider as many ways as possible to help them back to work - dismissal is a last resort and could be unfair if not handled properly. It is also very important that you determine whether or not they are disabled under the Disability Discrimination Act 1995.
You can consider getting a medical report from their GP (with their written permission), or an occupational health assessment. Remember to ask the questions that are relevant to the job, as this will enable you to get the information you need to make an informed decision. The employee has the right to see the GP report before you and may choose not to disclose some information.
If their continued employment is no longer feasible because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.
During any dismissal procedure, you should treat all employees with sensitivity. You should also act fairly and reasonably. Your dismissal procedure must follow the statutory dismissal requirements.
If you unreasonably fail to follow the statutory dismissal procedures when dismissing and the employee is successful in unfair dismissal proceedings, any compensation awarded by the tribunal or arbitrator could be increased by between 10% and 50%.
If the employee who is subject to the procedure is disabled, you will also have to consider making any possible reasonable adjustments to allow for their needs; you have to address disability discrimination laws, so this is important.
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Dismissals on conduct grounds
How to dismiss employees involved in incidents of misconduct.
If you find that an employee has been involved in an incident of misconduct, the action you take depends on how serious it is. For example:
- If the misconduct relates to a minor issue, the penalty for a first offence would normally be a verbal warning. This would be followed by a written warning if the offence is repeated within a specified timescale. Further occurrences would result in a final written warning and ultimately dismissal if repeated again.
- If the misconduct relates to a more serious issue, the employer may issue a final written warning for a first offence followed by dismissal for any further repeat of the offence within a specified time scale.
- The Labour Relations Agency (LRA) Code of Practice applies the statutory procedures to the issue of warnings as a matter of good practice.
- If the misconduct is of a very serious nature, the employer may dismiss for a first offence.
- No disciplinary action should be taken until there has been a thorough investigation into the alleged misconduct.
- Details of the alleged misconduct should be set out in writing and given to the employee prior to any hearing taking place.
- The employee must be offered the right to appeal against any decision taken within the formal procedure
- Throughout the formal process, employees have the right to be accompanied to all meetings and appeal meetings and to appeal to a more senior manager - ideally one not involved in the initial meetings
- The LRA Code of Practice on Disciplinary and Grievance Procedures recommends that verbal warnings remain on file for a six-month period and written warnings for a 12-month period.
Discipline and dismissal have a statutory procedure which must be followed and if it is not, where it applies, this may result in a finding of automatic unfair dismissal.
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Whistleblowing and dismissal
Protection from dismissal or detrimental treatment for workers who disclose a suspected relevant failure at work.
Workers who suspect wrongdoing and 'blow the whistle' to disclose these concerns to their employer are protected from dismissal or other negative consequences - as long as certain criteria are met. This law intends to help businesses quickly identify and resolve such problems.
The term 'workers' refers to those who work under:
- a contract of employment, eg employees
- some other contract to perform work personally, eg casual workers
It does not cover the genuinely self-employed.
The whistleblowing law also covers NHS practitioners, such as:
- GPs
- certain dentists
- pharmacists
- opticians
It also covers:
- agency workers
- certain categories of trainee
- those who contract to provide services to the Department of Health
- those who contract to provide services to a business via their own limited company - even if introduced via an employment agency or employment business
- student nurses and student midwives who undertake work experience as part of a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council (NMC)
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Whistleblowing: Qualifying disclosures
The types of disclosure that are eligible for protection from dismissal.
The types of disclosure that are eligible for protection are known as 'qualifying disclosures'.
These are where the worker reasonably believes that the disclosure is being made in the public interest and at least one 'relevant failure' is currently happening, took place in the past, or is likely to happen in the future.
Relevant failures can be:
- a criminal offence
- a miscarriage of justice
- damage to the environment
- the breach of a legal obligation
- a danger to the health or safety of any individual
- the deliberate covering up of information tending to show any of these matters
The same protection applies even if the qualifying disclosure concerns a relevant failure overseas or where the applicable law is not that of the UK.
Disclosures that can be characterised as being of a personal rather than public interest, will not be protected.
The belief does not need to be correct. The worker only needs to show that they held the belief and that it was a reasonable belief in the circumstances at the time they made the disclosure.
The disclosure is not a qualifying disclosure if:
- by making the disclosure, the worker has committed an offence, eg under the Official Secrets Act 1989
- the information should be protected from disclosure because of legal professional privilege, eg the disclosure has been made by a legal adviser (or their secretary) who has acquired the information in the course of providing legal advice
Qualifying disclosures made internally
A worker is protected if they make a qualifying disclosure to either:
- their employer - either directly or by using a procedure authorised by the employer for that purpose
- to another person who the worker reasonably believes to be solely or mainly responsible for the relevant failure
Ideally, you should have a whistleblowing policy that includes a procedure to follow if a worker wishes to make a qualifying disclosure.
Qualifying disclosures made externally
A worker is protected if they make a qualifying disclosure to an appropriate 'prescribed person'. These are certain statutory bodies - or people within them - who have the authority to receive disclosures relevant to the role of that particular body. Breaches in health and safety law, for example, can be brought to the attention of the Health and Safety Executive for Northern Ireland or the appropriate local council.
Public Interest Disclosure guidance.
For the disclosure to be protected, the worker must:
- reasonably believe the information and any allegation it contains are substantially true and are in the public interest to disclose
- reasonably believe they are making the disclosure to the relevant person or body
A qualifying disclosure is also a protected disclosure if it is made:
- to a government minister or a Northern Ireland Department Permanent Secretary by someone working in a government-appointed organisation - this could be directly or via departmental officials and in the public interest to disclose
- to a legal adviser in the course of obtaining legal advice - there are no further conditions attached
Other circumstances where an external disclosure is protected
A qualifying disclosure continues to be a protected disclosure if the conditions below are met.
Firstly, the worker must:
- not act for personal gain
- reasonably believe the information - and any allegation contained in it - is substantially true
In addition, one or more of the following conditions must be met:
- the worker must have previously disclosed the same information to their employer or to a prescribed person
- the worker reasonably believed they would be subjected to a detriment by their employer if the disclosure was made to the employer or a prescribed person
- in the absence of an appropriate prescribed person, the worker reasonably believed that disclosure to the employer would result in the destruction or concealment of information about the wrongdoing
Finally, it must be reasonable for the worker to make the disclosure. An industrial tribunal/arbitrator will decide whether the worker acted reasonably in all the circumstances, particularly taking into account:
- the seriousness of the relevant failure
- whether the relevant failure is continuing or likely to occur again
- whether the worker followed any internal procedures approved by the employer
- what action has, or might reasonably be expected to have, been taken where a previous disclosure was made to the employer or a prescribed person
- whether the disclosure breaches the employer's duty of confidentiality to others
- the identity of the person to whom the disclosure was made
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Whistleblowing: Exceptionally serious failures
How workers are protected when reporting an exceptionally serious failure in the workplace.
If the relevant failure is exceptionally serious, any qualifying disclosure made externally will be protected if the worker:
- does not act for personal gain
- reasonably believes the information disclosed, and any allegation contained in it, are substantially true
Also, it must be reasonable for the worker to make the disclosure in view of all the circumstances - with particular regard to the identity of the person to whom the disclosure is made.
Only an industrial tribunal/arbitrator can decide whether or not the relevant failure is exceptionally serious. This will be a matter of fact and not simply a matter of the worker reasonably believing it to be exceptionally serious.
Raising a grievance and making protected disclosures
Employees do not necessarily have to raise a grievance in order to make a protected disclosure.
For more information about grievance procedures, see our guide on handling grievances.
There may be good reasons why a worker wishes their identity to remain confidential. The law does not compel an organisation to protect the confidentiality of a whistleblower. However, it is considered best practice to maintain that confidentiality, unless required by law to disclose it.
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Whistleblowing: Right of complaint to an industrial tribunal
If an employee is dismissed for making a protected disclosure, they may bring a claim to an employment tribunal.
An employee may bring a claim for unfair dismissal if they are dismissed for making a protected disclosure. A tribunal/arbitrator will find any such dismissal to be automatically unfair.
An employee or other worker who believes they have been subjected to a detriment for making a protected disclosure can bring a complaint of detrimental treatment.
A worker subjected to a detriment by a co-worker in the course of that co-worker's employment with the employer, on the grounds that the worker made a protected disclosure, may be able to take a case to an Industrial Tribunal against both the co-worker and their employer.
A detriment can be either an act or a deliberate decision not to act by the employer. Whether an employee or other worker has suffered a detriment will be decided by the tribunal/arbitrator.
Examples of detrimental treatment include:
- threats of dismissal
- withholding a pay rise
- discrimination in promotion, transfer, or training opportunities
- failure to confer a benefit on a person who failed to accept an unlawful inducement that would have been conferred on them had they accepted the offer
Workers who are not employees cannot claim unfair dismissal. However, their dismissal could amount to a detriment and therefore they could still bring a detrimental treatment claim.
Remedies
Where a tribunal or arbitrator finds that an employee's complaint of unfair dismissal is justified, they will order either:
- reinstatement/re-employment
- the payment of compensation
Where an employee or other worker complains they have been subjected to a detriment and the tribunal or arbitrator finds the complaint well-founded, they will make a declaration to that effect and may order the payment of compensation.
An industrial tribunal will have the discretion to reduce a compensatory award by up to 25% in the event that it finds the disclosure has not been made in good faith.
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TUPE legislation in Northern Ireland
In this guide:
- Responsibilities to employees if you buy or sell a business
- TUPE legislation in Northern Ireland
- Your responsibilities to employees transferred into your business
- What is meant by a TUPE transfer
- The transfer of employee liability information
- Your responsibilities to employees transferred out of your business
- Changing terms and conditions after a business transfer
- Dismissal before or after a business transfer
- Informing and consulting employees about business transfers
- Transfers of insolvent businesses
- TUPE transfers: the impact on employee relations
TUPE legislation in Northern Ireland
Employer guidance on TUPE legislation in Northern Ireland.
On 6 April 2006, the revised Transfer of Undertakings (Protection of Employment) Regulations 2006 (the "2006 Regulations") (S.I. 2006/246) and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (the "SPC Regulations") (S.R. 2006 No. 177) came into operation.
Northern Ireland TUPE legislation
The legislation.gov.uk website presents the legislation in detail:
- Transfer of Undertakings (Protection of Employment) Regulations 2006
- Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006
The 2006 Regulations made UK-wide provision for the treatment of employees, and related matters, on the transfer of a business or undertaking, so that when all or part of a business is bought or sold, the terms and conditions of the employees who transfer in the sale may be preserved.
The 2006 Regulations also implemented certain service provision change elements, but within those regulations, these elements apply in Great Britain only. Separate regulations, namely the SPC Regulations, were required for Northern Ireland, as Great Britain did not have the necessary powers to legislate on this matter for Northern Ireland.
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Your responsibilities to employees transferred into your business
You take over certain responsibilities when an employee is transferred into your business.
Employees who transfer to your employment do so on their pre-existing terms and conditions and with their continuous employment preserved. This also applies to employees who have already transferred on a previous transfer.
You also take over responsibility/liability for any:
- outstanding disciplinary and grievance situations
- ongoing industrial tribunal claims
- any potential legal actions which may be brought
- collective agreements in force at the time of the transfer, which means that you must continue to recognise the recognised trade union(s) that the staff transferring are members of
Occupational pension and share-option schemes
You do not have to offer transferred employees who are members of - or eligible to join - an occupational pension scheme (OPS) exactly the same pension rights.
However, you must still offer those employees a minimum level of occupational pension provision.
You can opt to provide access to an OPS or make employer contributions to a stakeholder pension scheme. If you choose a stakeholder or a defined contribution scheme, you will have to match the employee's contributions up to 6%. This can be increased if both parties agree.
All employers have to provide their employees with a workplace pension scheme. To read more about these obligations, see automatic enrolment into a workplace pension.
If you don't take over the previous business' shares, you won't be able to provide such shares to your staff. If the previous employer had share or share-option schemes, you must provide equivalent schemes.
Note that if you buy a privatised (previously public sector) undertaking, or win a contract to provide a service to a central or local government organisation, the government expects you to have pension arrangements that are broadly comparable with that enjoyed by the previously public-sector employees.
Changes to terms and conditions
Don't change transferred employees' terms and conditions if the reason for the change is either the transfer itself, eg to match those of your existing staff, or reasons connected to the transfer.
If you change an employee's terms and conditions in this way, this could amount to a breach of contract. The employee may then be able to resign and claim constructive dismissal.
If, however, the change is unconnected with the transfer, you should handle it like any other change of contract where there is provision for change in the contract or where change has been brought about by mutual agreement. For more information, see changing terms and conditions after a transfer and how to change an employee's terms of employment.
Labour Relations Agency (LRA) advice on agreeing and changing contracts of employment.
Information and consultation
Even if you are taking on transferred employees, you must still inform and consult representatives of your existing employees who may be affected by the transfer.
In addition, you must give details to the previous employer of any action, step, or arrangement you intend to take that will affect the transferring employees. There are no set timescales, however, you must do this before the transfer takes place with adequate time for consultation.
See informing and consulting employees about business transfers.
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What is meant by a TUPE transfer
What is and what is not included as a transfer for the purposes of TUPE.
A 'relevant transfer', ie a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE) apply - occurs when:
- An economic entity is one which is stable and is transferred from one business (part or undertaking) to another, ie the entity is sold as a going concern and retains its identity after the transfer. This is known as a business transfer (standard transfer).
- A client engages a contractor to do work on its behalf or reassigns such a contract, including bringing the work in-house - this is known as a service provision change (extended transfer).
An economic entity
An economic entity is defined as an organised grouping of resources, eg a grouping of employees and assets such as premises and computer equipment that has the objective of pursuing an economic activity. Some transfers will qualify as both a business transfer and as a service provision change, eg outsourcing a service will often meet both definitions.
Examples of business transfers
- Sale of the whole or part of a business where the business continues in a similar format.
- Merger of two businesses.
Service provision change
Examples of service provision changes are where:
- a business contracts its security arrangements to an outside security business (outsourcing)
- a business decides to hire its own staff to provide catering to replace an outside catering business (in-sourcing)
- the contract to clean a client's premises is transferred from one cleaning contractor to another
TUPE applies equally to relevant transfers of large and small businesses, and to public and private undertakings. This means there would be a relevant transfer if you sold your business or if your business bought and operated another business.
Note that TUPE generally applies to second and subsequent transfers of the same undertaking. This means that, if you sell a business or part of a business that you previously bought or relinquish a contract that you previously took over, the employees you took over will now transfer to the new employer - as per the Court of Justice of the European Union (CJEU) interpretation of TUPE.
When TUPE does not apply
Not all transfers are relevant transfers. TUPE does not apply when:
- A client buys services from a contractor on a one-off basis - rather than the two parties entering into an ongoing relationship for the provision of the service.
- There is a transfer of share takeover - when a company's shares are sold to new shareholders, there is no transfer of the business - the same company continues to be the employer.
- A business transfers assets only - then there is no transfer of a business as a going concern eg if the equipment is sold.
- There is a transfer of an undertaking situated outside the UK - although similar provisions apply in the European Union.
- There is a change in business identity - if the work or organisational structure changes radically.
Whether TUPE applies in any particular case depends on all relevant circumstances. In the event of a dispute, only an industrial tribunal or a higher court can decide this.
Where TUPE applies, existing employees of the undertaking transferred automatically become employees of the business that takes the undertaking over. It is unlikely that agency workers fall within the definition of 'employee' for the purposes of TUPE ie they do not automatically transfer, it seems, on current law.
If you think you may become involved in a transfer situation to which TUPE applies, you should consider obtaining legal advice, as the legislation in this area can be complex. Choose a solicitor for your business.
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The transfer of employee liability information
The information you must provide to the new employer when you transfer employees out of your business.
When you transfer employees from your business, you must provide certain information about the employees who are transferring to the new employer. This is known as employee liability information.
The aim of this information is to give the new employer time to understand their obligations towards the transferred employees.
You must provide all information in writing not less than 14 days before the relevant transfer. This can be as electronic files as long as the new employer can readily access the information.
If there is not much information to pass on, eg because only a few employees are transferring, you can provide the information by telephone. Consider asking the new employer which method they would prefer. It would be prudent to keep a full record of all such information, either way.
You can provide the information in stages. However, you must have given all the information before - ideally at least two weeks before - the completion of the transfer. You can also provide the information via a third party if you wish.
You cannot agree with the new employer not to supply this information.
If you do not provide employee liability information, the new employer can make a complaint to an industrial tribunal. This could lead to a compensatory award for any loss the new employer incurs due to not having the information. Compensation is usually at least £500 per employee affected.
The information you must provide
You must provide:
- identity and ages of the employees who will transfer
- their statements of employment particulars
- details of any collective agreements that apply
- details of any formal disciplinary action taken in the past two years to which the statutory disciplinary and dismissal procedures apply
- details of any employee grievances raised in the past two years to which the LRA Code of Practice on Disciplinary and Grievance Procedures applies
- instances of any legal actions against you in the past two years by the transferring employees and any potential legal actions that may be brought
If any of this information changes before the transfer is complete, you must provide the changes in writing to the new employer.
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Your responsibilities to employees transferred out of your business
What you have to do if all or some of your employees transfer to another employer.
You have important responsibilities to your employees if they are transferred out of your business.
Who transfers?
Those who transfer are employees employed by the transferor and assigned to the organised grouping of resources that are going to be transferred.
Therefore those who cannot transfer are:
- those only temporarily assigned to the organised grouping
- the self-employed
- independent contractors
However, an employee can still transfer even if they don't spend all their time working for the grouping to be transferred.
Information and consultation
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE), you are required to inform and consult the representatives of those employees affected by the transfer. Inform and consult your employees.
Affected employees are not just those who are going to transfer - other employees in the business may be affected by the transfer and have a right to be informed and consulted too.
See informing and consulting employees about business transfers.
Refusal to transfer
If an employee refuses to transfer with a business, they have not been dismissed but have effectively resigned. This means that they lose the right to claim certain employment rights.
See resignations connected with a business transfer.
Employee liability information
When employees transfer out of your business, you must give the new employer certain information about those employees. See the transfer of employee liability information.
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Changing terms and conditions after a business transfer
When you can change employees' terms and conditions of employment following a business transfer.
In a business transfer situation, employees' existing terms and conditions are transferred to the new employer from the start of the new employment.
Employees should therefore not be disadvantaged by a transfer, ie by having less favourable terms and conditions in their new roles.
Economic, technical or organisational reason
If you are the new employer, you can only vary a contract for a reason related to the transfer if it's an economic, technical, or organisational (ETO) reason entailing changes in the workforce.
There is no legal definition of an ETO reason. However, it might relate to, for example:
- the profitability or market performance of your business - an economic reason
- the nature of the equipment or production processes which you operate - a technical reason
- the management or organisational structure of your business - an organisational reason
Note that you can't vary the contracts of the transferred employees in order to harmonise their terms and conditions with those of your existing employees in equivalent roles or grades. A pay cut does not count as an ETO. The transfer of a business subject to insolvency proceedings is a different matter, however - it is covered below. However, you could change terms and conditions - by agreement - if the changes are positive, eg fewer working hours or additional holiday entitlement.
Changing terms and conditions over time
After a certain period, eg six months, you might be tempted to consider it 'safe' to vary the contracts of the transferred employees as the reason for the change cannot have been by reason of the transfer.
However, there is no set period for this and no 'rule of thumb' used by the courts or specified in the regulations to define a period of time after which it is safe to assume that the transfer will not impact directly or indirectly on the employer's actions.
Changing terms and conditions after the transfer of an insolvent business
Note that there is greater flexibility to change terms and conditions if the business being transferred is insolvent - see transfers of insolvent businesses.
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Dismissal before or after a business transfer
Continuity of employment, dismissals, and the ETO defence for a business transfer.
Employees who transfer have their continuity of employment preserved. This means that those who had, for example, 18 months of service with their previous employer have - at the time of the transfer - 18 months' service with the new employer.
This is important as it means that employees with enough continuous employment maintain their right to claim certain employment protection rights, eg the right to claim unfair dismissal (one year's continuous employment). Employees also have the right to claim a statutory redundancy payment (two years). See continuous employment and employee rights.
Dismissals before the business transfer
An employee still transfers if they would have been employed in the undertaking immediately before the transfer had they not been unfairly dismissed - either because of the transfer or for a reason connected with the transfer.
The employee will be able to lodge a complaint at the Industrial Tribunal for unfair dismissal against either the previous or the new employer - as long as they have at least one year's continuous employment.
The Labour Relations Agency (LRA) provides an alternative to the Industrial Tribunal under the LRA Arbitration Scheme. Under the scheme claimants and respondents can choose to refer a claim to an arbitrator to decide instead of going to a tribunal. The arbitrator's decision is binding as a matter of law and has the same effect as a tribunal.
Employers do, however, have the 'ETO defence' - see below.
Dismissals after the business transfer
If you dismiss a transferred employee either because of the transfer or a reason connected with it, their dismissal is automatically unfair.
In certain circumstances, individuals may require at least one year's continuous employment.
The LRA Arbitration Scheme can again provide an alternative to the Industrial Tribunal.
Employers do, however, have the 'ETO defence' - see below.
The ETO defence
If there is an economic, technical or organisational (ETO) reason entailing changes in the workforce, a Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE)-related dismissal may be fair.
However, even with this defence, the dismissing employer must still follow a fair dismissal procedure. See dismissing employees.
ETO reasons are narrow in practice and effectively amount to a genuine redundancy situation, eg insolvency of the transferred undertaking.
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Informing and consulting employees about business transfers
Which workplace representatives you must consult and what you should tell them.
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006, (collectively known as TUPE), you are required to inform and consult the appropriate workplace representatives of those employees affected by the transfer.
Affected employees are not just those who are going to transfer - other employees in either business may be affected by the transfer and have a right to be informed and consulted too.
Which representatives must I inform and consult?
The appropriate representatives who you must inform and consult are either:
- Representatives of a trade union you have recognised for the purposes of collective bargaining - if there is one. See work effectively with trade unions.
- Employee representatives appointed by the affected employees specifically for the purpose of being informed and consulted on the transfer or who have already been appointed for a different purpose and are suitable for this purpose too. For information on arranging the election of employee representatives, see employee representatives during business transfers.
If you have a pre-existing information and consultation (I&C) agreement in place, you have a duty to inform and consult employees or their representatives on - among other things - changes to the workforce. This means that you may have to inform and consult when planning to buy or sell a business.
However, you do not have to inform and consult at the same time under both TUPE and the I&C legislation - you can choose instead to 'opt out' of your I&C agreement and consult under the transfer legislation only.
What to tell TUPE representatives
The appropriate representatives must be informed of:
- the fact that the transfer is taking place, and when and why it will happen
- the legal, economic, and social implications for affected employees
- any actions, steps, or arrangements the employer envisages taking in relation to affected employees, eg redundancies, relocation, or changes to terms and conditions, or the fact that no measures will be taken
- any actions, steps, or arrangements the new employer envisages taking in relation to employees who will transfer - if the employer is the selling employer
- information relating to the use of agency workers, including the total number of agency workers engaged, the areas of the business in which they work, and the type of work they do
You must consider and respond to any representations made by the appropriate representatives, stating your reasons if you reject any of them.
When to give information to TUPE representatives
You must provide information to representatives long enough before the transfer date to give reasonable time for consultation.
The consultation must be undertaken with a view to seeking their agreement.
Rights of TUPE representatives
Representatives have the right to have:
- access to the affected employees
- access to facilities to enable them to carry out their duties, eg a phone line or office
- time off with pay to carry out representative duties
Representatives may be eligible for reinstatement or compensation if unfairly dismissed or treated detrimentally because of their status or actions as representatives.
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Transfers of insolvent businesses
What happens in situations where employees are being transferred as part of an insolvent business.
If you are transferring a business that is subject to insolvency proceedings and you owe money to the employees to be transferred, the responsibility to pay the full amount of the money owed does not transfer to the new employer.
Redundancy Payments Service
The new employer is only responsible for the amount left after the employees have been paid from the Redundancy Payments Service (RPS). If you require further information or advice with an ongoing redundancy claim, you can call the Redundancy Payments Service Helpline on 028 9025 7562.
They should be able to make a claim through the RPS for:
- arrears of pay
- holiday pay - for days taken but not paid
They will not be able to claim statutory redundancy pay or pay in lieu of notice as - post-transfer - their job will not have ended.
For general advice on redundancies, you can get help from the Labour Relations Agency (LRA) Helpline on Tel 03300 555 300.
Permitted variations
You or the new employer - or the insolvency practitioner - can reduce pay and establish other less favourable terms and conditions after the transfer. These are known as permitted variations.
However, certain conditions must be met when doing this:
- the permitted variation must be agreed with you or the new employer - or the insolvency practitioner - and the appropriate representatives, ie trade union representatives if an independent trade union is recognised for collective bargaining purposes or, if not, elected employee representatives
- the agreement must be in writing and signed by each of the representatives or other authorised persons
- before the agreement is signed, the employer must provide all the affected employees with a copy of the agreement and any guidance the employees may need to understand it
You should also consider the following:
- any new terms and conditions agreed in a permitted variation must not breach other statutory entitlements, eg agreed pay rates must not be set below the national minimum wage
- any permitted variation must be made with the intention of safeguarding employment opportunities by ensuring the survival of the business - or part of it
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TUPE transfers: the impact on employee relations
Some negative effects of business transfers and how good staff relations and open communication can have a positive impact.
Transferring employees between businesses can affect staff morale. The result is often discontentment, not just in those transferred but also in staff left behind in the old business and existing employees in the new business.
Other effects on employees
If the process is not handled sensitively, the effects can include:
- feelings of displacement in the employees transferred
- anxiety among their ex-workmates who feel they might be next
- resentment among new workmates who distrust the reason the new employees have been introduced and may resent the fact that they have different terms and conditions
- a feeling of insecurity that may be common to all
However, if both employers know and meet their responsibilities fully and communicate openly throughout the process, then good relations can be maintained with all employees concerned.
Research shows that effective consultation can lead to better decision-making and smoother implementation of decisions and proposals, boosting productivity. This is because if employees feel they have input into decision-making, they will be more satisfied and motivated at work. See employee engagement.
You should be especially careful to emphasise the positive benefits of the sale or purchase and try to show how the prospects for all will be improved by the changes.
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Transfers of insolvent businesses
In this guide:
- Responsibilities to employees if you buy or sell a business
- TUPE legislation in Northern Ireland
- Your responsibilities to employees transferred into your business
- What is meant by a TUPE transfer
- The transfer of employee liability information
- Your responsibilities to employees transferred out of your business
- Changing terms and conditions after a business transfer
- Dismissal before or after a business transfer
- Informing and consulting employees about business transfers
- Transfers of insolvent businesses
- TUPE transfers: the impact on employee relations
TUPE legislation in Northern Ireland
Employer guidance on TUPE legislation in Northern Ireland.
On 6 April 2006, the revised Transfer of Undertakings (Protection of Employment) Regulations 2006 (the "2006 Regulations") (S.I. 2006/246) and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (the "SPC Regulations") (S.R. 2006 No. 177) came into operation.
Northern Ireland TUPE legislation
The legislation.gov.uk website presents the legislation in detail:
- Transfer of Undertakings (Protection of Employment) Regulations 2006
- Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006
The 2006 Regulations made UK-wide provision for the treatment of employees, and related matters, on the transfer of a business or undertaking, so that when all or part of a business is bought or sold, the terms and conditions of the employees who transfer in the sale may be preserved.
The 2006 Regulations also implemented certain service provision change elements, but within those regulations, these elements apply in Great Britain only. Separate regulations, namely the SPC Regulations, were required for Northern Ireland, as Great Britain did not have the necessary powers to legislate on this matter for Northern Ireland.
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Your responsibilities to employees transferred into your business
You take over certain responsibilities when an employee is transferred into your business.
Employees who transfer to your employment do so on their pre-existing terms and conditions and with their continuous employment preserved. This also applies to employees who have already transferred on a previous transfer.
You also take over responsibility/liability for any:
- outstanding disciplinary and grievance situations
- ongoing industrial tribunal claims
- any potential legal actions which may be brought
- collective agreements in force at the time of the transfer, which means that you must continue to recognise the recognised trade union(s) that the staff transferring are members of
Occupational pension and share-option schemes
You do not have to offer transferred employees who are members of - or eligible to join - an occupational pension scheme (OPS) exactly the same pension rights.
However, you must still offer those employees a minimum level of occupational pension provision.
You can opt to provide access to an OPS or make employer contributions to a stakeholder pension scheme. If you choose a stakeholder or a defined contribution scheme, you will have to match the employee's contributions up to 6%. This can be increased if both parties agree.
All employers have to provide their employees with a workplace pension scheme. To read more about these obligations, see automatic enrolment into a workplace pension.
If you don't take over the previous business' shares, you won't be able to provide such shares to your staff. If the previous employer had share or share-option schemes, you must provide equivalent schemes.
Note that if you buy a privatised (previously public sector) undertaking, or win a contract to provide a service to a central or local government organisation, the government expects you to have pension arrangements that are broadly comparable with that enjoyed by the previously public-sector employees.
Changes to terms and conditions
Don't change transferred employees' terms and conditions if the reason for the change is either the transfer itself, eg to match those of your existing staff, or reasons connected to the transfer.
If you change an employee's terms and conditions in this way, this could amount to a breach of contract. The employee may then be able to resign and claim constructive dismissal.
If, however, the change is unconnected with the transfer, you should handle it like any other change of contract where there is provision for change in the contract or where change has been brought about by mutual agreement. For more information, see changing terms and conditions after a transfer and how to change an employee's terms of employment.
Labour Relations Agency (LRA) advice on agreeing and changing contracts of employment.
Information and consultation
Even if you are taking on transferred employees, you must still inform and consult representatives of your existing employees who may be affected by the transfer.
In addition, you must give details to the previous employer of any action, step, or arrangement you intend to take that will affect the transferring employees. There are no set timescales, however, you must do this before the transfer takes place with adequate time for consultation.
See informing and consulting employees about business transfers.
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What is meant by a TUPE transfer
What is and what is not included as a transfer for the purposes of TUPE.
A 'relevant transfer', ie a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE) apply - occurs when:
- An economic entity is one which is stable and is transferred from one business (part or undertaking) to another, ie the entity is sold as a going concern and retains its identity after the transfer. This is known as a business transfer (standard transfer).
- A client engages a contractor to do work on its behalf or reassigns such a contract, including bringing the work in-house - this is known as a service provision change (extended transfer).
An economic entity
An economic entity is defined as an organised grouping of resources, eg a grouping of employees and assets such as premises and computer equipment that has the objective of pursuing an economic activity. Some transfers will qualify as both a business transfer and as a service provision change, eg outsourcing a service will often meet both definitions.
Examples of business transfers
- Sale of the whole or part of a business where the business continues in a similar format.
- Merger of two businesses.
Service provision change
Examples of service provision changes are where:
- a business contracts its security arrangements to an outside security business (outsourcing)
- a business decides to hire its own staff to provide catering to replace an outside catering business (in-sourcing)
- the contract to clean a client's premises is transferred from one cleaning contractor to another
TUPE applies equally to relevant transfers of large and small businesses, and to public and private undertakings. This means there would be a relevant transfer if you sold your business or if your business bought and operated another business.
Note that TUPE generally applies to second and subsequent transfers of the same undertaking. This means that, if you sell a business or part of a business that you previously bought or relinquish a contract that you previously took over, the employees you took over will now transfer to the new employer - as per the Court of Justice of the European Union (CJEU) interpretation of TUPE.
When TUPE does not apply
Not all transfers are relevant transfers. TUPE does not apply when:
- A client buys services from a contractor on a one-off basis - rather than the two parties entering into an ongoing relationship for the provision of the service.
- There is a transfer of share takeover - when a company's shares are sold to new shareholders, there is no transfer of the business - the same company continues to be the employer.
- A business transfers assets only - then there is no transfer of a business as a going concern eg if the equipment is sold.
- There is a transfer of an undertaking situated outside the UK - although similar provisions apply in the European Union.
- There is a change in business identity - if the work or organisational structure changes radically.
Whether TUPE applies in any particular case depends on all relevant circumstances. In the event of a dispute, only an industrial tribunal or a higher court can decide this.
Where TUPE applies, existing employees of the undertaking transferred automatically become employees of the business that takes the undertaking over. It is unlikely that agency workers fall within the definition of 'employee' for the purposes of TUPE ie they do not automatically transfer, it seems, on current law.
If you think you may become involved in a transfer situation to which TUPE applies, you should consider obtaining legal advice, as the legislation in this area can be complex. Choose a solicitor for your business.
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The transfer of employee liability information
The information you must provide to the new employer when you transfer employees out of your business.
When you transfer employees from your business, you must provide certain information about the employees who are transferring to the new employer. This is known as employee liability information.
The aim of this information is to give the new employer time to understand their obligations towards the transferred employees.
You must provide all information in writing not less than 14 days before the relevant transfer. This can be as electronic files as long as the new employer can readily access the information.
If there is not much information to pass on, eg because only a few employees are transferring, you can provide the information by telephone. Consider asking the new employer which method they would prefer. It would be prudent to keep a full record of all such information, either way.
You can provide the information in stages. However, you must have given all the information before - ideally at least two weeks before - the completion of the transfer. You can also provide the information via a third party if you wish.
You cannot agree with the new employer not to supply this information.
If you do not provide employee liability information, the new employer can make a complaint to an industrial tribunal. This could lead to a compensatory award for any loss the new employer incurs due to not having the information. Compensation is usually at least £500 per employee affected.
The information you must provide
You must provide:
- identity and ages of the employees who will transfer
- their statements of employment particulars
- details of any collective agreements that apply
- details of any formal disciplinary action taken in the past two years to which the statutory disciplinary and dismissal procedures apply
- details of any employee grievances raised in the past two years to which the LRA Code of Practice on Disciplinary and Grievance Procedures applies
- instances of any legal actions against you in the past two years by the transferring employees and any potential legal actions that may be brought
If any of this information changes before the transfer is complete, you must provide the changes in writing to the new employer.
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Your responsibilities to employees transferred out of your business
What you have to do if all or some of your employees transfer to another employer.
You have important responsibilities to your employees if they are transferred out of your business.
Who transfers?
Those who transfer are employees employed by the transferor and assigned to the organised grouping of resources that are going to be transferred.
Therefore those who cannot transfer are:
- those only temporarily assigned to the organised grouping
- the self-employed
- independent contractors
However, an employee can still transfer even if they don't spend all their time working for the grouping to be transferred.
Information and consultation
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE), you are required to inform and consult the representatives of those employees affected by the transfer. Inform and consult your employees.
Affected employees are not just those who are going to transfer - other employees in the business may be affected by the transfer and have a right to be informed and consulted too.
See informing and consulting employees about business transfers.
Refusal to transfer
If an employee refuses to transfer with a business, they have not been dismissed but have effectively resigned. This means that they lose the right to claim certain employment rights.
See resignations connected with a business transfer.
Employee liability information
When employees transfer out of your business, you must give the new employer certain information about those employees. See the transfer of employee liability information.
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Changing terms and conditions after a business transfer
When you can change employees' terms and conditions of employment following a business transfer.
In a business transfer situation, employees' existing terms and conditions are transferred to the new employer from the start of the new employment.
Employees should therefore not be disadvantaged by a transfer, ie by having less favourable terms and conditions in their new roles.
Economic, technical or organisational reason
If you are the new employer, you can only vary a contract for a reason related to the transfer if it's an economic, technical, or organisational (ETO) reason entailing changes in the workforce.
There is no legal definition of an ETO reason. However, it might relate to, for example:
- the profitability or market performance of your business - an economic reason
- the nature of the equipment or production processes which you operate - a technical reason
- the management or organisational structure of your business - an organisational reason
Note that you can't vary the contracts of the transferred employees in order to harmonise their terms and conditions with those of your existing employees in equivalent roles or grades. A pay cut does not count as an ETO. The transfer of a business subject to insolvency proceedings is a different matter, however - it is covered below. However, you could change terms and conditions - by agreement - if the changes are positive, eg fewer working hours or additional holiday entitlement.
Changing terms and conditions over time
After a certain period, eg six months, you might be tempted to consider it 'safe' to vary the contracts of the transferred employees as the reason for the change cannot have been by reason of the transfer.
However, there is no set period for this and no 'rule of thumb' used by the courts or specified in the regulations to define a period of time after which it is safe to assume that the transfer will not impact directly or indirectly on the employer's actions.
Changing terms and conditions after the transfer of an insolvent business
Note that there is greater flexibility to change terms and conditions if the business being transferred is insolvent - see transfers of insolvent businesses.
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Dismissal before or after a business transfer
Continuity of employment, dismissals, and the ETO defence for a business transfer.
Employees who transfer have their continuity of employment preserved. This means that those who had, for example, 18 months of service with their previous employer have - at the time of the transfer - 18 months' service with the new employer.
This is important as it means that employees with enough continuous employment maintain their right to claim certain employment protection rights, eg the right to claim unfair dismissal (one year's continuous employment). Employees also have the right to claim a statutory redundancy payment (two years). See continuous employment and employee rights.
Dismissals before the business transfer
An employee still transfers if they would have been employed in the undertaking immediately before the transfer had they not been unfairly dismissed - either because of the transfer or for a reason connected with the transfer.
The employee will be able to lodge a complaint at the Industrial Tribunal for unfair dismissal against either the previous or the new employer - as long as they have at least one year's continuous employment.
The Labour Relations Agency (LRA) provides an alternative to the Industrial Tribunal under the LRA Arbitration Scheme. Under the scheme claimants and respondents can choose to refer a claim to an arbitrator to decide instead of going to a tribunal. The arbitrator's decision is binding as a matter of law and has the same effect as a tribunal.
Employers do, however, have the 'ETO defence' - see below.
Dismissals after the business transfer
If you dismiss a transferred employee either because of the transfer or a reason connected with it, their dismissal is automatically unfair.
In certain circumstances, individuals may require at least one year's continuous employment.
The LRA Arbitration Scheme can again provide an alternative to the Industrial Tribunal.
Employers do, however, have the 'ETO defence' - see below.
The ETO defence
If there is an economic, technical or organisational (ETO) reason entailing changes in the workforce, a Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE)-related dismissal may be fair.
However, even with this defence, the dismissing employer must still follow a fair dismissal procedure. See dismissing employees.
ETO reasons are narrow in practice and effectively amount to a genuine redundancy situation, eg insolvency of the transferred undertaking.
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Informing and consulting employees about business transfers
Which workplace representatives you must consult and what you should tell them.
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006, (collectively known as TUPE), you are required to inform and consult the appropriate workplace representatives of those employees affected by the transfer.
Affected employees are not just those who are going to transfer - other employees in either business may be affected by the transfer and have a right to be informed and consulted too.
Which representatives must I inform and consult?
The appropriate representatives who you must inform and consult are either:
- Representatives of a trade union you have recognised for the purposes of collective bargaining - if there is one. See work effectively with trade unions.
- Employee representatives appointed by the affected employees specifically for the purpose of being informed and consulted on the transfer or who have already been appointed for a different purpose and are suitable for this purpose too. For information on arranging the election of employee representatives, see employee representatives during business transfers.
If you have a pre-existing information and consultation (I&C) agreement in place, you have a duty to inform and consult employees or their representatives on - among other things - changes to the workforce. This means that you may have to inform and consult when planning to buy or sell a business.
However, you do not have to inform and consult at the same time under both TUPE and the I&C legislation - you can choose instead to 'opt out' of your I&C agreement and consult under the transfer legislation only.
What to tell TUPE representatives
The appropriate representatives must be informed of:
- the fact that the transfer is taking place, and when and why it will happen
- the legal, economic, and social implications for affected employees
- any actions, steps, or arrangements the employer envisages taking in relation to affected employees, eg redundancies, relocation, or changes to terms and conditions, or the fact that no measures will be taken
- any actions, steps, or arrangements the new employer envisages taking in relation to employees who will transfer - if the employer is the selling employer
- information relating to the use of agency workers, including the total number of agency workers engaged, the areas of the business in which they work, and the type of work they do
You must consider and respond to any representations made by the appropriate representatives, stating your reasons if you reject any of them.
When to give information to TUPE representatives
You must provide information to representatives long enough before the transfer date to give reasonable time for consultation.
The consultation must be undertaken with a view to seeking their agreement.
Rights of TUPE representatives
Representatives have the right to have:
- access to the affected employees
- access to facilities to enable them to carry out their duties, eg a phone line or office
- time off with pay to carry out representative duties
Representatives may be eligible for reinstatement or compensation if unfairly dismissed or treated detrimentally because of their status or actions as representatives.
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Transfers of insolvent businesses
What happens in situations where employees are being transferred as part of an insolvent business.
If you are transferring a business that is subject to insolvency proceedings and you owe money to the employees to be transferred, the responsibility to pay the full amount of the money owed does not transfer to the new employer.
Redundancy Payments Service
The new employer is only responsible for the amount left after the employees have been paid from the Redundancy Payments Service (RPS). If you require further information or advice with an ongoing redundancy claim, you can call the Redundancy Payments Service Helpline on 028 9025 7562.
They should be able to make a claim through the RPS for:
- arrears of pay
- holiday pay - for days taken but not paid
They will not be able to claim statutory redundancy pay or pay in lieu of notice as - post-transfer - their job will not have ended.
For general advice on redundancies, you can get help from the Labour Relations Agency (LRA) Helpline on Tel 03300 555 300.
Permitted variations
You or the new employer - or the insolvency practitioner - can reduce pay and establish other less favourable terms and conditions after the transfer. These are known as permitted variations.
However, certain conditions must be met when doing this:
- the permitted variation must be agreed with you or the new employer - or the insolvency practitioner - and the appropriate representatives, ie trade union representatives if an independent trade union is recognised for collective bargaining purposes or, if not, elected employee representatives
- the agreement must be in writing and signed by each of the representatives or other authorised persons
- before the agreement is signed, the employer must provide all the affected employees with a copy of the agreement and any guidance the employees may need to understand it
You should also consider the following:
- any new terms and conditions agreed in a permitted variation must not breach other statutory entitlements, eg agreed pay rates must not be set below the national minimum wage
- any permitted variation must be made with the intention of safeguarding employment opportunities by ensuring the survival of the business - or part of it
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TUPE transfers: the impact on employee relations
Some negative effects of business transfers and how good staff relations and open communication can have a positive impact.
Transferring employees between businesses can affect staff morale. The result is often discontentment, not just in those transferred but also in staff left behind in the old business and existing employees in the new business.
Other effects on employees
If the process is not handled sensitively, the effects can include:
- feelings of displacement in the employees transferred
- anxiety among their ex-workmates who feel they might be next
- resentment among new workmates who distrust the reason the new employees have been introduced and may resent the fact that they have different terms and conditions
- a feeling of insecurity that may be common to all
However, if both employers know and meet their responsibilities fully and communicate openly throughout the process, then good relations can be maintained with all employees concerned.
Research shows that effective consultation can lead to better decision-making and smoother implementation of decisions and proposals, boosting productivity. This is because if employees feel they have input into decision-making, they will be more satisfied and motivated at work. See employee engagement.
You should be especially careful to emphasise the positive benefits of the sale or purchase and try to show how the prospects for all will be improved by the changes.
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Changing terms and conditions after a business transfer
In this guide:
- Responsibilities to employees if you buy or sell a business
- TUPE legislation in Northern Ireland
- Your responsibilities to employees transferred into your business
- What is meant by a TUPE transfer
- The transfer of employee liability information
- Your responsibilities to employees transferred out of your business
- Changing terms and conditions after a business transfer
- Dismissal before or after a business transfer
- Informing and consulting employees about business transfers
- Transfers of insolvent businesses
- TUPE transfers: the impact on employee relations
TUPE legislation in Northern Ireland
Employer guidance on TUPE legislation in Northern Ireland.
On 6 April 2006, the revised Transfer of Undertakings (Protection of Employment) Regulations 2006 (the "2006 Regulations") (S.I. 2006/246) and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (the "SPC Regulations") (S.R. 2006 No. 177) came into operation.
Northern Ireland TUPE legislation
The legislation.gov.uk website presents the legislation in detail:
- Transfer of Undertakings (Protection of Employment) Regulations 2006
- Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006
The 2006 Regulations made UK-wide provision for the treatment of employees, and related matters, on the transfer of a business or undertaking, so that when all or part of a business is bought or sold, the terms and conditions of the employees who transfer in the sale may be preserved.
The 2006 Regulations also implemented certain service provision change elements, but within those regulations, these elements apply in Great Britain only. Separate regulations, namely the SPC Regulations, were required for Northern Ireland, as Great Britain did not have the necessary powers to legislate on this matter for Northern Ireland.
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Your responsibilities to employees transferred into your business
You take over certain responsibilities when an employee is transferred into your business.
Employees who transfer to your employment do so on their pre-existing terms and conditions and with their continuous employment preserved. This also applies to employees who have already transferred on a previous transfer.
You also take over responsibility/liability for any:
- outstanding disciplinary and grievance situations
- ongoing industrial tribunal claims
- any potential legal actions which may be brought
- collective agreements in force at the time of the transfer, which means that you must continue to recognise the recognised trade union(s) that the staff transferring are members of
Occupational pension and share-option schemes
You do not have to offer transferred employees who are members of - or eligible to join - an occupational pension scheme (OPS) exactly the same pension rights.
However, you must still offer those employees a minimum level of occupational pension provision.
You can opt to provide access to an OPS or make employer contributions to a stakeholder pension scheme. If you choose a stakeholder or a defined contribution scheme, you will have to match the employee's contributions up to 6%. This can be increased if both parties agree.
All employers have to provide their employees with a workplace pension scheme. To read more about these obligations, see automatic enrolment into a workplace pension.
If you don't take over the previous business' shares, you won't be able to provide such shares to your staff. If the previous employer had share or share-option schemes, you must provide equivalent schemes.
Note that if you buy a privatised (previously public sector) undertaking, or win a contract to provide a service to a central or local government organisation, the government expects you to have pension arrangements that are broadly comparable with that enjoyed by the previously public-sector employees.
Changes to terms and conditions
Don't change transferred employees' terms and conditions if the reason for the change is either the transfer itself, eg to match those of your existing staff, or reasons connected to the transfer.
If you change an employee's terms and conditions in this way, this could amount to a breach of contract. The employee may then be able to resign and claim constructive dismissal.
If, however, the change is unconnected with the transfer, you should handle it like any other change of contract where there is provision for change in the contract or where change has been brought about by mutual agreement. For more information, see changing terms and conditions after a transfer and how to change an employee's terms of employment.
Labour Relations Agency (LRA) advice on agreeing and changing contracts of employment.
Information and consultation
Even if you are taking on transferred employees, you must still inform and consult representatives of your existing employees who may be affected by the transfer.
In addition, you must give details to the previous employer of any action, step, or arrangement you intend to take that will affect the transferring employees. There are no set timescales, however, you must do this before the transfer takes place with adequate time for consultation.
See informing and consulting employees about business transfers.
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What is meant by a TUPE transfer
What is and what is not included as a transfer for the purposes of TUPE.
A 'relevant transfer', ie a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE) apply - occurs when:
- An economic entity is one which is stable and is transferred from one business (part or undertaking) to another, ie the entity is sold as a going concern and retains its identity after the transfer. This is known as a business transfer (standard transfer).
- A client engages a contractor to do work on its behalf or reassigns such a contract, including bringing the work in-house - this is known as a service provision change (extended transfer).
An economic entity
An economic entity is defined as an organised grouping of resources, eg a grouping of employees and assets such as premises and computer equipment that has the objective of pursuing an economic activity. Some transfers will qualify as both a business transfer and as a service provision change, eg outsourcing a service will often meet both definitions.
Examples of business transfers
- Sale of the whole or part of a business where the business continues in a similar format.
- Merger of two businesses.
Service provision change
Examples of service provision changes are where:
- a business contracts its security arrangements to an outside security business (outsourcing)
- a business decides to hire its own staff to provide catering to replace an outside catering business (in-sourcing)
- the contract to clean a client's premises is transferred from one cleaning contractor to another
TUPE applies equally to relevant transfers of large and small businesses, and to public and private undertakings. This means there would be a relevant transfer if you sold your business or if your business bought and operated another business.
Note that TUPE generally applies to second and subsequent transfers of the same undertaking. This means that, if you sell a business or part of a business that you previously bought or relinquish a contract that you previously took over, the employees you took over will now transfer to the new employer - as per the Court of Justice of the European Union (CJEU) interpretation of TUPE.
When TUPE does not apply
Not all transfers are relevant transfers. TUPE does not apply when:
- A client buys services from a contractor on a one-off basis - rather than the two parties entering into an ongoing relationship for the provision of the service.
- There is a transfer of share takeover - when a company's shares are sold to new shareholders, there is no transfer of the business - the same company continues to be the employer.
- A business transfers assets only - then there is no transfer of a business as a going concern eg if the equipment is sold.
- There is a transfer of an undertaking situated outside the UK - although similar provisions apply in the European Union.
- There is a change in business identity - if the work or organisational structure changes radically.
Whether TUPE applies in any particular case depends on all relevant circumstances. In the event of a dispute, only an industrial tribunal or a higher court can decide this.
Where TUPE applies, existing employees of the undertaking transferred automatically become employees of the business that takes the undertaking over. It is unlikely that agency workers fall within the definition of 'employee' for the purposes of TUPE ie they do not automatically transfer, it seems, on current law.
If you think you may become involved in a transfer situation to which TUPE applies, you should consider obtaining legal advice, as the legislation in this area can be complex. Choose a solicitor for your business.
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The transfer of employee liability information
The information you must provide to the new employer when you transfer employees out of your business.
When you transfer employees from your business, you must provide certain information about the employees who are transferring to the new employer. This is known as employee liability information.
The aim of this information is to give the new employer time to understand their obligations towards the transferred employees.
You must provide all information in writing not less than 14 days before the relevant transfer. This can be as electronic files as long as the new employer can readily access the information.
If there is not much information to pass on, eg because only a few employees are transferring, you can provide the information by telephone. Consider asking the new employer which method they would prefer. It would be prudent to keep a full record of all such information, either way.
You can provide the information in stages. However, you must have given all the information before - ideally at least two weeks before - the completion of the transfer. You can also provide the information via a third party if you wish.
You cannot agree with the new employer not to supply this information.
If you do not provide employee liability information, the new employer can make a complaint to an industrial tribunal. This could lead to a compensatory award for any loss the new employer incurs due to not having the information. Compensation is usually at least £500 per employee affected.
The information you must provide
You must provide:
- identity and ages of the employees who will transfer
- their statements of employment particulars
- details of any collective agreements that apply
- details of any formal disciplinary action taken in the past two years to which the statutory disciplinary and dismissal procedures apply
- details of any employee grievances raised in the past two years to which the LRA Code of Practice on Disciplinary and Grievance Procedures applies
- instances of any legal actions against you in the past two years by the transferring employees and any potential legal actions that may be brought
If any of this information changes before the transfer is complete, you must provide the changes in writing to the new employer.
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Your responsibilities to employees transferred out of your business
What you have to do if all or some of your employees transfer to another employer.
You have important responsibilities to your employees if they are transferred out of your business.
Who transfers?
Those who transfer are employees employed by the transferor and assigned to the organised grouping of resources that are going to be transferred.
Therefore those who cannot transfer are:
- those only temporarily assigned to the organised grouping
- the self-employed
- independent contractors
However, an employee can still transfer even if they don't spend all their time working for the grouping to be transferred.
Information and consultation
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE), you are required to inform and consult the representatives of those employees affected by the transfer. Inform and consult your employees.
Affected employees are not just those who are going to transfer - other employees in the business may be affected by the transfer and have a right to be informed and consulted too.
See informing and consulting employees about business transfers.
Refusal to transfer
If an employee refuses to transfer with a business, they have not been dismissed but have effectively resigned. This means that they lose the right to claim certain employment rights.
See resignations connected with a business transfer.
Employee liability information
When employees transfer out of your business, you must give the new employer certain information about those employees. See the transfer of employee liability information.
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Changing terms and conditions after a business transfer
When you can change employees' terms and conditions of employment following a business transfer.
In a business transfer situation, employees' existing terms and conditions are transferred to the new employer from the start of the new employment.
Employees should therefore not be disadvantaged by a transfer, ie by having less favourable terms and conditions in their new roles.
Economic, technical or organisational reason
If you are the new employer, you can only vary a contract for a reason related to the transfer if it's an economic, technical, or organisational (ETO) reason entailing changes in the workforce.
There is no legal definition of an ETO reason. However, it might relate to, for example:
- the profitability or market performance of your business - an economic reason
- the nature of the equipment or production processes which you operate - a technical reason
- the management or organisational structure of your business - an organisational reason
Note that you can't vary the contracts of the transferred employees in order to harmonise their terms and conditions with those of your existing employees in equivalent roles or grades. A pay cut does not count as an ETO. The transfer of a business subject to insolvency proceedings is a different matter, however - it is covered below. However, you could change terms and conditions - by agreement - if the changes are positive, eg fewer working hours or additional holiday entitlement.
Changing terms and conditions over time
After a certain period, eg six months, you might be tempted to consider it 'safe' to vary the contracts of the transferred employees as the reason for the change cannot have been by reason of the transfer.
However, there is no set period for this and no 'rule of thumb' used by the courts or specified in the regulations to define a period of time after which it is safe to assume that the transfer will not impact directly or indirectly on the employer's actions.
Changing terms and conditions after the transfer of an insolvent business
Note that there is greater flexibility to change terms and conditions if the business being transferred is insolvent - see transfers of insolvent businesses.
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Dismissal before or after a business transfer
Continuity of employment, dismissals, and the ETO defence for a business transfer.
Employees who transfer have their continuity of employment preserved. This means that those who had, for example, 18 months of service with their previous employer have - at the time of the transfer - 18 months' service with the new employer.
This is important as it means that employees with enough continuous employment maintain their right to claim certain employment protection rights, eg the right to claim unfair dismissal (one year's continuous employment). Employees also have the right to claim a statutory redundancy payment (two years). See continuous employment and employee rights.
Dismissals before the business transfer
An employee still transfers if they would have been employed in the undertaking immediately before the transfer had they not been unfairly dismissed - either because of the transfer or for a reason connected with the transfer.
The employee will be able to lodge a complaint at the Industrial Tribunal for unfair dismissal against either the previous or the new employer - as long as they have at least one year's continuous employment.
The Labour Relations Agency (LRA) provides an alternative to the Industrial Tribunal under the LRA Arbitration Scheme. Under the scheme claimants and respondents can choose to refer a claim to an arbitrator to decide instead of going to a tribunal. The arbitrator's decision is binding as a matter of law and has the same effect as a tribunal.
Employers do, however, have the 'ETO defence' - see below.
Dismissals after the business transfer
If you dismiss a transferred employee either because of the transfer or a reason connected with it, their dismissal is automatically unfair.
In certain circumstances, individuals may require at least one year's continuous employment.
The LRA Arbitration Scheme can again provide an alternative to the Industrial Tribunal.
Employers do, however, have the 'ETO defence' - see below.
The ETO defence
If there is an economic, technical or organisational (ETO) reason entailing changes in the workforce, a Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (known collectively as TUPE)-related dismissal may be fair.
However, even with this defence, the dismissing employer must still follow a fair dismissal procedure. See dismissing employees.
ETO reasons are narrow in practice and effectively amount to a genuine redundancy situation, eg insolvency of the transferred undertaking.
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Informing and consulting employees about business transfers
Which workplace representatives you must consult and what you should tell them.
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006, (collectively known as TUPE), you are required to inform and consult the appropriate workplace representatives of those employees affected by the transfer.
Affected employees are not just those who are going to transfer - other employees in either business may be affected by the transfer and have a right to be informed and consulted too.
Which representatives must I inform and consult?
The appropriate representatives who you must inform and consult are either:
- Representatives of a trade union you have recognised for the purposes of collective bargaining - if there is one. See work effectively with trade unions.
- Employee representatives appointed by the affected employees specifically for the purpose of being informed and consulted on the transfer or who have already been appointed for a different purpose and are suitable for this purpose too. For information on arranging the election of employee representatives, see employee representatives during business transfers.
If you have a pre-existing information and consultation (I&C) agreement in place, you have a duty to inform and consult employees or their representatives on - among other things - changes to the workforce. This means that you may have to inform and consult when planning to buy or sell a business.
However, you do not have to inform and consult at the same time under both TUPE and the I&C legislation - you can choose instead to 'opt out' of your I&C agreement and consult under the transfer legislation only.
What to tell TUPE representatives
The appropriate representatives must be informed of:
- the fact that the transfer is taking place, and when and why it will happen
- the legal, economic, and social implications for affected employees
- any actions, steps, or arrangements the employer envisages taking in relation to affected employees, eg redundancies, relocation, or changes to terms and conditions, or the fact that no measures will be taken
- any actions, steps, or arrangements the new employer envisages taking in relation to employees who will transfer - if the employer is the selling employer
- information relating to the use of agency workers, including the total number of agency workers engaged, the areas of the business in which they work, and the type of work they do
You must consider and respond to any representations made by the appropriate representatives, stating your reasons if you reject any of them.
When to give information to TUPE representatives
You must provide information to representatives long enough before the transfer date to give reasonable time for consultation.
The consultation must be undertaken with a view to seeking their agreement.
Rights of TUPE representatives
Representatives have the right to have:
- access to the affected employees
- access to facilities to enable them to carry out their duties, eg a phone line or office
- time off with pay to carry out representative duties
Representatives may be eligible for reinstatement or compensation if unfairly dismissed or treated detrimentally because of their status or actions as representatives.
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Transfers of insolvent businesses
What happens in situations where employees are being transferred as part of an insolvent business.
If you are transferring a business that is subject to insolvency proceedings and you owe money to the employees to be transferred, the responsibility to pay the full amount of the money owed does not transfer to the new employer.
Redundancy Payments Service
The new employer is only responsible for the amount left after the employees have been paid from the Redundancy Payments Service (RPS). If you require further information or advice with an ongoing redundancy claim, you can call the Redundancy Payments Service Helpline on 028 9025 7562.
They should be able to make a claim through the RPS for:
- arrears of pay
- holiday pay - for days taken but not paid
They will not be able to claim statutory redundancy pay or pay in lieu of notice as - post-transfer - their job will not have ended.
For general advice on redundancies, you can get help from the Labour Relations Agency (LRA) Helpline on Tel 03300 555 300.
Permitted variations
You or the new employer - or the insolvency practitioner - can reduce pay and establish other less favourable terms and conditions after the transfer. These are known as permitted variations.
However, certain conditions must be met when doing this:
- the permitted variation must be agreed with you or the new employer - or the insolvency practitioner - and the appropriate representatives, ie trade union representatives if an independent trade union is recognised for collective bargaining purposes or, if not, elected employee representatives
- the agreement must be in writing and signed by each of the representatives or other authorised persons
- before the agreement is signed, the employer must provide all the affected employees with a copy of the agreement and any guidance the employees may need to understand it
You should also consider the following:
- any new terms and conditions agreed in a permitted variation must not breach other statutory entitlements, eg agreed pay rates must not be set below the national minimum wage
- any permitted variation must be made with the intention of safeguarding employment opportunities by ensuring the survival of the business - or part of it
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TUPE transfers: the impact on employee relations
Some negative effects of business transfers and how good staff relations and open communication can have a positive impact.
Transferring employees between businesses can affect staff morale. The result is often discontentment, not just in those transferred but also in staff left behind in the old business and existing employees in the new business.
Other effects on employees
If the process is not handled sensitively, the effects can include:
- feelings of displacement in the employees transferred
- anxiety among their ex-workmates who feel they might be next
- resentment among new workmates who distrust the reason the new employees have been introduced and may resent the fact that they have different terms and conditions
- a feeling of insecurity that may be common to all
However, if both employers know and meet their responsibilities fully and communicate openly throughout the process, then good relations can be maintained with all employees concerned.
Research shows that effective consultation can lead to better decision-making and smoother implementation of decisions and proposals, boosting productivity. This is because if employees feel they have input into decision-making, they will be more satisfied and motivated at work. See employee engagement.
You should be especially careful to emphasise the positive benefits of the sale or purchase and try to show how the prospects for all will be improved by the changes.
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Employee absence due to bad weather
In this guide:
- Manage absence and sickness
- Benefits of an absence and sickness policy
- Absence and sickness policies: what to include
- Manage workplace absence and sickness
- Measure and monitor absence and sickness
- Employee absence as a capability issue
- Employee absence as a conduct issue
- Employee absence due to conflict at work
- Employee absence due to bad weather
- Managing absence and sickness: five things you should know
- Managing sickness absence - MindWise (video)
Benefits of an absence and sickness policy
Productivity, morale, and staff retention can be improved with clear workplace policies on absence and sickness.
Having an absence and sickness policy can bring clear business benefits including:
- lower insurance costs
- higher rates of staff retention and motivation
- improved productivity, profitability and morale
You may also find that the reputation of your business is improved and that this, in turn, aids employee recruitment.
Management benefits of having an absence and sickness policy
From a management point of view, having an absence and sickness policy can help you to:
- prevent small problems from developing into larger ones
- measure and monitor employee absence - see measure and monitor absence and sickness
- identify and tackle underlying problems, such as workload demands, poor working conditions, work-life balance issues, conflict at work, or lack of adequate training/career development
Monitoring reasons for unexpected absences is just one of the ways of managing staff health and wellbeing and how you can control staff turnover.
You may find that monitoring reasons for absences makes it easier for you to identify and deal with different types of absences appropriately.
See employee absence as a capability issue and employee absence as a conduct issue.
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Absence and sickness policies: what to include
An overview of what to include in workplace absence and sickness policies.
You should develop your absence and sickness policy/procedures in consultation with line managers and workplace representatives.
What should my absence and sickness policy include?
An absence and sickness policy could include the following:
- When time off might or must be permitted, eg jury service leave and time off for emergencies involving dependants. See allowing time off work.
- How the worker should notify you if they are ill, going to be late for work, or absent for other unexpected reasons, eg because a dependant has had an accident or fallen ill. It might be helpful to clarify the circumstances when dependants leave would typically be applicable, such as where the reason for absence relates to an emergency situation or unexpected disruption. See parental leave and time off for dependants.
- When they should submit a medical statement, known as a fit note, from their healthcare professional or self-certify their illness and the implications of failure to provide appropriate certification. Note that under statutory sick pay rules, self-certification is only required from the fourth day, and a medical statement from the eighth day, of an absence. See manage workplace absence and sickness.
- Details of any methods used to measure absence eg Bradford Factor.
- An indication of what is deemed unacceptable levels of absence and trigger points for taking action to review.
- Statutory - and any contractual - sick pay arrangements. This should also be covered in each employee's written statement of employment particulars.
- The circumstances when absences will be dealt with as a capability issue and the circumstances when absences will be dealt with as a conduct issue.
- Possible procedures for using the employer's own doctor/medical adviser or the procedure for seeking an employee's consent to obtain a medical report from their GP/medical practitioner.
- If applicable, the need to attend a return-to-work interview
- Consequences of not complying with the policy, eg when disciplinary measures will be taken.
- Identifies who is responsible for keeping attendance records.
- Reference to any other relevant policies, eg alcohol/drug misuse, health and safety, discipline and grievance, annual leave, maternity/adoption/paternity/parental leave. See staff documents and employment policies.
You may also want to include the following points:
- If you have good reason to believe an employee is abusing the system, you may begin disciplinary action against them.
- While you will treat those who fall ill sympathetically, excessive sickness can result in dismissal. For information on dealing with employee illness fairly, see employee absence as a capability issue.
Supporting staff with long-term sickness
There are other options you may want to consider, including:
- offering a counselling service (or arranging a referral to specialist assistance)
- setting up rehabilitation programmes for long-term sickness
- a referral to an occupational health service that can provide useful information regarding staff on long-term sickness absence and support their return to work
- appointing an absence case manager
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Manage workplace absence and sickness
An overview of the basic principles of managing absence and sickness effectively.
There are a number of steps you should take to manage unexpected workplace absence and sickness effectively:
- Produce clear written procedures for reporting absence. See absence and sickness policies: what to include.
- Accurately record and monitor absence. See measure and monitor absence and sickness.
- Train managers on how to handle absence.
- Set targets for absence levels.
- Conduct return-to-work interviews after absences, interviewing sensitively to find out if there are underlying causes.
- Provide special equipment if appropriate, eg specialist chairs or chair aids for employees with back problems. Find out about the help available to employers from the Health and Work Support Branch.
- Develop other initiatives to encourage good attendance, eg improvement of working conditions, the introduction of flexible working, provision of counselling and healthcare facilities.
Statement of fitness for work or the fit note
A statement of fitness for work, also known as a fit note is a medical statement that healthcare professionals issue to patients whose health condition affects their ability to work.
Fit note change from 1 July 2022
Since 1 July 2022, other healthcare professionals in addition to doctors are able to sign a fit note. This includes registered nurses, physiotherapists, occupational therapists, and pharmacists. See fit note changes come into effect from 1 July 2022.
A healthcare professional may only issue a fit note after seven calendar days of sickness absence. For sickness absences of seven calendar days or fewer, employees can self-certify.
A statement of fitness for work allows a healthcare professional to advise either that the patient is unfit for work or that they may be fit for work if appropriate support is available eg a phased return to work, altered hours, amended duties, or workplace adaptations.
In the latter case, the healthcare professional may also comment on the functional effects of the patient's health condition and, if appropriate, what changes you, as the patient's employer, could make - in agreement with the employee - to help them get back to work as part of their recovery.
While you don't have to act on the healthcare professional's advice, the statement may help you make simple and practical workplace adjustments to help your staff return to work and reduce unnecessary sickness absences.
Regardless of what a statement says, you must still make reasonable adjustments for disabled employees under the disability provisions in the Disability Discrimination Act 1995.
The Chartered Institute of Personnel and Development (CIPD) has a number of guides, factsheets and Q&As on absence management.
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Measure and monitor absence and sickness
How to measure and record absence and sickness in your workplace.
Setting up procedures for measuring absence and sickness in the workplace allows you to identify:
- how much working time has been lost
- where absence occurs the most, eg among particular types of worker or department
- how often individual workers are absent
- whether there is a pattern of absence, eg where a worker regularly calls in sick on a Friday
- sickness absence reasons
It will also show whether the absence is:
- due to short-term sickness and certificated
- due to short-term sickness and uncertificated
- due to long-term sickness
- not sickness-related and authorised
- not sickness-related, but unauthorised
With this information, you should be able to take the appropriate action to improve workplace absence and sickness levels.
Reasons for employee absence
Reasons for unauthorised absence can be personal, eg due to domestic problems, or work-related, eg due to verbal abuse from customers or heavy workloads and, in turn, increased levels of stress.
Consider improving such conditions by:
- examining job design
- using temporary staff during busy periods
- developing policies and procedures to tackle anti-social behaviour against public-facing staff
- offering flexible working patterns, training and promotion opportunities, staff incentives, etc
- offering employees training on managing work-related stress
- offering managers training on managing stress in the workplace
Return-to-work interviews
Return-to-work interviews can be an effective way of collecting absence data. Carried out sensitively, they can help establish:
- if there is a hidden reason for a worker's absence, eg workplace bullying or domestic problems
- f they are fit to return to work
- whether there is any underlying medical condition
- the likelihood of any recurrence of the problem/illness
- if there is an absence problem
- whether any action is required and allow the employer to explain the consequences of any further absences
- if medical referral is necessary
- whether a disability exists
Keeping sickness and absence records
Prior to 6 April 2014 under regulation 7 (13) of Schedule 4 to the Social Security (Contributions) Regulations 2001, an employer had to keep wage records for all employees.
Regulation 13 of the SSP General Regulations 1982, as amended by Regulations 3 of the Social Security Contributions, Statutory Maternity Pay and Statutory Sick Pay (Miscellaneous Amendments) Regulations 1996, required an employer to keep sick absence records for each employee for each year.
With effect from 6 April 2014 regulation 13 was revoked and employers are no longer required to keep records of sickness absence.
Regulation 13A is still in force and an employer may be required to produce records to show statutory sick pay has been paid to their employees. See statutory sick pay forms and record-keeping.
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Employee absence as a capability issue
How an employee's illness can affect their ability to perform their job.
An employee may become incapable of doing their job to the required standard because they are genuinely affected by either of the following:
- long-term ill health related to an underlying medical condition and therefore they don't attend work for a long period of time
- frequent bouts of short-term sickness related to an underlying medical condition and they are therefore unable to attend work regularly
Addressing absence as a capability issue
In either of these circumstances, you should treat any absence as a capability issue and:
- deal with the situation sensitively
- investigate, measure, and monitor the employee's absence record
- consult them regularly to find out about their health and discuss ways of enabling them to remain in the workplace, or if on long-term sickness absence the likelihood of a return to work
- set time limits on assessing the situation and tell the employee
- let them know if their job is at risk, and why
- obtain medical reports - although you'll need their permission
- consider adjustments to their job to allow them to return to work and/or do their job more easily
- consider offering any other vacancy you may have which has duties that the employee may be fit to perform
To avoid an unfair dismissal claim, only dismiss as a last resort. Make sure you have followed fair and proper procedures, including statutory dismissal and disciplinary procedures. See dismissing employees.
Keep in mind the following:
- Check if the illness relates to a disability - if so, you may need to make reasonable adjustments so that the employee can carry out their job. For the definition of disability, see how to prevent discrimination and value diversity.
- Discount any periods of absence related to a pregnancy-related illness when taking action over someone's absence record. For the rights of pregnant employees, see pregnancy at work.
- An eligible employee may be entitled to statutory sick pay for up to 28 weeks - as well as any contractual sick pay. See pay: employer obligations.
Absence related to drugs and alcohol
Treat employees addicted to drugs or alcohol similarly to employees with any other serious illness. However, if an employee won't accept they have a problem or seek help, the issue may become one of unacceptable conduct.
Where the issue is purely one of conduct, ie the employee is not addicted to alcohol or drugs but their drug/alcohol consumption is leading to regular absence/lateness, you should consider subjecting them to your disciplinary procedure.
See workplace policies on smoking, drugs, and alcohol, and employee absence as a conduct issue.
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Employee absence as a conduct issue
How to manage an absence problem as a conduct issue where you may need to take disciplinary action.
Persistent short term absence due to illness, where there is no specific medical cause, should be dealt with as a conduct issue and you may wish to take disciplinary action.
Be aware though that sickness, domestic problems or travel difficulties leading to absence or lateness may not necessarily amount to misconduct. Absences relating to an underlying medical condition should be dealt with as a capability issue. Additionally, if the sickness is pregnancy related, you must not take disciplinary action. See employee absence as a capability issue.
Investigations before taking disciplinary action
Prior to taking disciplinary action, you should:
- review the employee's attendance record
- meet with the employee to discuss and review their overall attendance record
If there is no reasonable explanation for the absence you may decide to take disciplinary action.
Prior to taking disciplinary action, you could:
- caution employees that it is a requirement to comply with your absence and sickness policy/procedures and this would include ensuring they phone in at or by a given time each day
- ensure line managers follow up on any unexplained absence
Where employees are finding it difficult to manage home and work responsibilities, consider introducing flexible working arrangements.
Note that eligible employees have the right to request flexible working.
You must consider such requests seriously - see flexible working: the law and best practice.
Taking disciplinary action
The employee should be given an opportunity to improve. Usually warnings, both oral and written, are sufficient.
If the situation does not improve, you may have to consider dismissal, but only as a last resort and after following proper and fair procedures, including statutory dismissal and disciplinary procedures. See disciplinary procedures, hearings, and appeals.
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Employee absence due to conflict at work
How to manage staff who are absent because of disputes or other conflicts in the workplace.
An employee may be absent because of a conflict at work. This absence could either be in the form of sick leave or unauthorised and unexplained. With any type of absence, the employee may telephone you to explain what has caused it, or you may have to call the employee instead.
Resolving conflict at work
If you find out that an employee's absence is being caused by a conflict at work, you need to take steps to resolve it.
You may wish to use mediation as a way of resolving the problem. Mediation is a process whereby an independent third party intervenes in a workplace dispute to assist the parties to reach a satisfactory outcome. Mediation is especially suitable when used at the early stages of a problem at work and can be used in any dispute, but is particularly useful in relationship issues. The Labour Relations Agency (LRA) provides a free mediation service.
However, the employee might just tell you that they are affected by depression or stress. If so, you should try to find out - if it's not immediately clear - the underlying cause to determine whether it's work-related.
With unauthorised absence, the employee may be reluctant to tell you why they are absent, ie they might either avoid giving you an explanation or give you an explanation that you find unconvincing. In either case, you should arrange a return-to-work interview with the employee to find out the underlying cause of their absence.
If the employee continues to take periods of unauthorised absence, you may treat it as a conduct issue and apply your disciplinary procedure (which should as a minimum comply with the statutory dismissal and disciplinary procedures). You may find that, during a disciplinary hearing, the employee raises a grievance relating to a conflict at work that has ultimately led to their absence. If this happens, you should consider suspending the disciplinary process for a short period in order to deal with the grievance. However, if the grievance constitutes the employee's defence to the disciplinary issue, you may find it convenient to deal with both issues concurrently.
See disciplinary procedures, hearings, and appeals and handling grievances.
Return-to-work interviews
Whenever an employee returns to work after a period of sickness absence, you should hold a return-to-work interview with them.
As part of the discussion, you can:
- welcome the employee back
- check they are well enough to be at work
- update them on any news while they were absent
- ask them about the cause of their absence
You may find that they were absent because of a conflict at work. For example:
- they have an ongoing disagreement with a peer or their manager
- they are being bullied or harassed by a colleague, client or customer
- before their absence, you had called them to a meeting on an unrelated disciplinary matter, eg to discuss their performance or conduct
- there is a dispute between groups of workers
- there is a dispute between a group of workers and management over, for example, pay or conditions, which may have already led - or may lead in future - to industrial action
If so, you need to take steps to deal with the conflict. See managing conflict.
If you are already aware that the absence was caused by a conflict at work, you should inform the employee about the steps that you have taken or plan to take to resolve it. They should also have a clear understanding of what may happen if they continue to be absent from work.
Continuing absence during a disciplinary procedure
If you think an employee's continuing absence is itself due to a forthcoming disciplinary hearing and, as a result, they fail to attend it, you should:
- rearrange the date of the meeting
- consider seeking medical advice on an employee's fitness to attend a disciplinary hearing
- warn the employee that, if they fail to attend again without good reason, you could make your decision on the matter in their absence
If the employee repeatedly fails to attend rearranged disciplinary hearings, you need to consider all the facts and come to a reasonable decision on how to proceed.
Considerations may include:
- any rules you have for dealing with failure to attend disciplinary meetings
- the seriousness of the disciplinary issue under consideration
- the employee's disciplinary record (including current warnings), general work record, work experience, position and length of service
- medical opinion on whether the employee is fit to attend the meeting
- how you have dealt with similar cases in the past
- the explanations and reasons for non-attendance given by the employee
However, eventually you will be entitled to reach your disciplinary decision in their absence, whether it's a warning, action short of dismissal such as demotion, or even dismissal itself.
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Employee absence due to bad weather
Flexible working and other issues you may have to tackle during bad weather.
Bad weather - particularly heavy snow - and the resulting transport problems can lead to a large number of employees being absent from or late for work.
To reduce the impact of bad weather, you should plan ahead. For example, think about issues such as alternative working patterns or who can cover at short notice.
It's also a good idea to include a section on bad weather in your absence policy so that you and your staff know what to do when these situations arise.
Remote working
It's worth considering a more flexible approach to matters such as location - you could allow employees to work from home/remotely if, for example, all or most of their work is done using a computer with an internet connection.
Alternatively you could agree with the employee that they start and finish at a later time, or that they take a day's holiday or perhaps any accrued time off in lieu.
In addition, information technology could be useful in enabling a business to run effectively if many employees are absent from work, for example using laptops or smartphones to work remotely. See remote access security best practice.
Pay issues
You do not have to pay an employee if, because of bad weather:
- they are unable to get to work
- they are late for work (unless the travel itself is part of their working time or - in some situations - where you provide the transport)
However, you may have to pay an employee if:
- the right to payment is set out in their employment contract or a collective agreement
- it's become custom and practice for you to do so in these circumstances
Finally, providing you do not discriminate, you might, even without obligation, choose to pay for a short lateness absence, making it clear it is not a precedent. Such a consideration can engender staff goodwill.
Dealing with absence issues fairly
Even if your business is damaged by the effects of absent workers, make sure that any disciplinary action you take is carried out according to proper and fair procedure.
This will help maintain good, fair, and consistent employment relations and help prevent complaints to industrial tribunals. See disciplinary procedures, hearings, and appeals.
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Managing absence and sickness: five things you should know
Top tips to help employers effectively manage unexpected workplace absence.
As an employer, you should ensure you have appropriate systems in place to manage unexpected staff absences. These absences can affect productivity and profits and can even lower morale and motivation.
Top tips to manage workplace sickness and absences
The following top tips will help you to better manage unexpected absences in your business.
1. Understand the reasons for employee absence
It's important to be aware of potential factors contributing to the absence levels in your business. Reasons for absence could be personal or work-related. Some common reasons include unsafe work practices; heavy workloads; family problems; abuse from customers; conflict at work; ill health; drug or alcohol dependency; and bad weather. See how to manage absence and sickness.
2. Put effective policies and procedures in place
You can improve the impact of absences by putting effective policies and procedures in place and applying these fairly and consistently. These should be backed up by agreeable working conditions, good management, and a focus on staff motivation. Having an absence and sickness policy brings clear business benefits including lower insurance costs, higher rates of staff retention, and improved productivity. Having set procedures in place can also help you to prevent small problems from developing into larger ones, measure and monitor absence and identify underlying problems. Read about the benefits of having an absence and sickness policy.
3. Spend time developing your absence and sickness policy
You should develop your absence and sickness policy and procedures in consultation with line managers and workplace representatives. Your policy could include: when time off is permitted; how and when the worker should notify you of absence; when a worker should submit a medical statement or fit note from their healthcare professional; statutory sick pay arrangements; consequences of not complying with the policy; and responsibility for keeping attendance records. Absence and sickness policies: what to include.
4. Prepare for and manage unexpected absences
You should adhere to your absence and sickness policy and procedures when an instance of unexpected absence occurs. There are also a number of steps you should take to prepare for such an event: accurately record and monitor absence; train managers on how to handle absence; provide special equipment if appropriate; and set targets for absence levels. You should also conduct return-to-work interviews after absences, interviewing sensitively to assess if there are any underlying causes. You could also develop other initiatives to encourage good attendance such as the introduction of flexible working or introducing counselling and healthcare packages. Manage workplace absence and sickness.
5. Measure and monitor absence in your business
Monitoring absence in your business allows you to find out how much working time has been lost, where the absence occurs most, how often individual workers are absent, and whether there is a pattern of absence. With this information, you should be able to take the appropriate action to improve the situation. See measure and monitor absence and sickness. Not least, measuring and monitoring absences might reveal annual patterns of stress points which can help you prepare for and manage absences to a degree eg restrict (within contract limits) leave at such times.
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Manage absence and sickness
Managing sickness absence - MindWise (video)
In this video case study, MindWise and the Equality Commission, explain the importance of having a workplace sickness absence policy.
MindWise is a Northern Ireland charity that works to support those at risk of and affected by, severe mental illness and mental health difficulties.
MindWise has a low sickness absence among its staff. Anne Doherty, Deputy Chief Executive, explains how the organisation achieves and maintains this success rate. This includes having the right policies and procedures, alongside creating a culture where there are workplace initiatives, to promote a healthy environment for all staff. The charity specifically encourages WRAP (Wellness Recovery Action Planning) as a method to support positive mental health and wellbeing.
MindWise works closely with the Equality Commission. In this video, Una Wilson from the Equality Commission also highlights the challenges that Northern Ireland businesses face when managing sickness absence and the local support that is available to assist.
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Employee absence due to conflict at work
In this guide:
- Manage absence and sickness
- Benefits of an absence and sickness policy
- Absence and sickness policies: what to include
- Manage workplace absence and sickness
- Measure and monitor absence and sickness
- Employee absence as a capability issue
- Employee absence as a conduct issue
- Employee absence due to conflict at work
- Employee absence due to bad weather
- Managing absence and sickness: five things you should know
- Managing sickness absence - MindWise (video)
Benefits of an absence and sickness policy
Productivity, morale, and staff retention can be improved with clear workplace policies on absence and sickness.
Having an absence and sickness policy can bring clear business benefits including:
- lower insurance costs
- higher rates of staff retention and motivation
- improved productivity, profitability and morale
You may also find that the reputation of your business is improved and that this, in turn, aids employee recruitment.
Management benefits of having an absence and sickness policy
From a management point of view, having an absence and sickness policy can help you to:
- prevent small problems from developing into larger ones
- measure and monitor employee absence - see measure and monitor absence and sickness
- identify and tackle underlying problems, such as workload demands, poor working conditions, work-life balance issues, conflict at work, or lack of adequate training/career development
Monitoring reasons for unexpected absences is just one of the ways of managing staff health and wellbeing and how you can control staff turnover.
You may find that monitoring reasons for absences makes it easier for you to identify and deal with different types of absences appropriately.
See employee absence as a capability issue and employee absence as a conduct issue.
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Absence and sickness policies: what to include
An overview of what to include in workplace absence and sickness policies.
You should develop your absence and sickness policy/procedures in consultation with line managers and workplace representatives.
What should my absence and sickness policy include?
An absence and sickness policy could include the following:
- When time off might or must be permitted, eg jury service leave and time off for emergencies involving dependants. See allowing time off work.
- How the worker should notify you if they are ill, going to be late for work, or absent for other unexpected reasons, eg because a dependant has had an accident or fallen ill. It might be helpful to clarify the circumstances when dependants leave would typically be applicable, such as where the reason for absence relates to an emergency situation or unexpected disruption. See parental leave and time off for dependants.
- When they should submit a medical statement, known as a fit note, from their healthcare professional or self-certify their illness and the implications of failure to provide appropriate certification. Note that under statutory sick pay rules, self-certification is only required from the fourth day, and a medical statement from the eighth day, of an absence. See manage workplace absence and sickness.
- Details of any methods used to measure absence eg Bradford Factor.
- An indication of what is deemed unacceptable levels of absence and trigger points for taking action to review.
- Statutory - and any contractual - sick pay arrangements. This should also be covered in each employee's written statement of employment particulars.
- The circumstances when absences will be dealt with as a capability issue and the circumstances when absences will be dealt with as a conduct issue.
- Possible procedures for using the employer's own doctor/medical adviser or the procedure for seeking an employee's consent to obtain a medical report from their GP/medical practitioner.
- If applicable, the need to attend a return-to-work interview
- Consequences of not complying with the policy, eg when disciplinary measures will be taken.
- Identifies who is responsible for keeping attendance records.
- Reference to any other relevant policies, eg alcohol/drug misuse, health and safety, discipline and grievance, annual leave, maternity/adoption/paternity/parental leave. See staff documents and employment policies.
You may also want to include the following points:
- If you have good reason to believe an employee is abusing the system, you may begin disciplinary action against them.
- While you will treat those who fall ill sympathetically, excessive sickness can result in dismissal. For information on dealing with employee illness fairly, see employee absence as a capability issue.
Supporting staff with long-term sickness
There are other options you may want to consider, including:
- offering a counselling service (or arranging a referral to specialist assistance)
- setting up rehabilitation programmes for long-term sickness
- a referral to an occupational health service that can provide useful information regarding staff on long-term sickness absence and support their return to work
- appointing an absence case manager
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Manage workplace absence and sickness
An overview of the basic principles of managing absence and sickness effectively.
There are a number of steps you should take to manage unexpected workplace absence and sickness effectively:
- Produce clear written procedures for reporting absence. See absence and sickness policies: what to include.
- Accurately record and monitor absence. See measure and monitor absence and sickness.
- Train managers on how to handle absence.
- Set targets for absence levels.
- Conduct return-to-work interviews after absences, interviewing sensitively to find out if there are underlying causes.
- Provide special equipment if appropriate, eg specialist chairs or chair aids for employees with back problems. Find out about the help available to employers from the Health and Work Support Branch.
- Develop other initiatives to encourage good attendance, eg improvement of working conditions, the introduction of flexible working, provision of counselling and healthcare facilities.
Statement of fitness for work or the fit note
A statement of fitness for work, also known as a fit note is a medical statement that healthcare professionals issue to patients whose health condition affects their ability to work.
Fit note change from 1 July 2022
Since 1 July 2022, other healthcare professionals in addition to doctors are able to sign a fit note. This includes registered nurses, physiotherapists, occupational therapists, and pharmacists. See fit note changes come into effect from 1 July 2022.
A healthcare professional may only issue a fit note after seven calendar days of sickness absence. For sickness absences of seven calendar days or fewer, employees can self-certify.
A statement of fitness for work allows a healthcare professional to advise either that the patient is unfit for work or that they may be fit for work if appropriate support is available eg a phased return to work, altered hours, amended duties, or workplace adaptations.
In the latter case, the healthcare professional may also comment on the functional effects of the patient's health condition and, if appropriate, what changes you, as the patient's employer, could make - in agreement with the employee - to help them get back to work as part of their recovery.
While you don't have to act on the healthcare professional's advice, the statement may help you make simple and practical workplace adjustments to help your staff return to work and reduce unnecessary sickness absences.
Regardless of what a statement says, you must still make reasonable adjustments for disabled employees under the disability provisions in the Disability Discrimination Act 1995.
The Chartered Institute of Personnel and Development (CIPD) has a number of guides, factsheets and Q&As on absence management.
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Measure and monitor absence and sickness
How to measure and record absence and sickness in your workplace.
Setting up procedures for measuring absence and sickness in the workplace allows you to identify:
- how much working time has been lost
- where absence occurs the most, eg among particular types of worker or department
- how often individual workers are absent
- whether there is a pattern of absence, eg where a worker regularly calls in sick on a Friday
- sickness absence reasons
It will also show whether the absence is:
- due to short-term sickness and certificated
- due to short-term sickness and uncertificated
- due to long-term sickness
- not sickness-related and authorised
- not sickness-related, but unauthorised
With this information, you should be able to take the appropriate action to improve workplace absence and sickness levels.
Reasons for employee absence
Reasons for unauthorised absence can be personal, eg due to domestic problems, or work-related, eg due to verbal abuse from customers or heavy workloads and, in turn, increased levels of stress.
Consider improving such conditions by:
- examining job design
- using temporary staff during busy periods
- developing policies and procedures to tackle anti-social behaviour against public-facing staff
- offering flexible working patterns, training and promotion opportunities, staff incentives, etc
- offering employees training on managing work-related stress
- offering managers training on managing stress in the workplace
Return-to-work interviews
Return-to-work interviews can be an effective way of collecting absence data. Carried out sensitively, they can help establish:
- if there is a hidden reason for a worker's absence, eg workplace bullying or domestic problems
- f they are fit to return to work
- whether there is any underlying medical condition
- the likelihood of any recurrence of the problem/illness
- if there is an absence problem
- whether any action is required and allow the employer to explain the consequences of any further absences
- if medical referral is necessary
- whether a disability exists
Keeping sickness and absence records
Prior to 6 April 2014 under regulation 7 (13) of Schedule 4 to the Social Security (Contributions) Regulations 2001, an employer had to keep wage records for all employees.
Regulation 13 of the SSP General Regulations 1982, as amended by Regulations 3 of the Social Security Contributions, Statutory Maternity Pay and Statutory Sick Pay (Miscellaneous Amendments) Regulations 1996, required an employer to keep sick absence records for each employee for each year.
With effect from 6 April 2014 regulation 13 was revoked and employers are no longer required to keep records of sickness absence.
Regulation 13A is still in force and an employer may be required to produce records to show statutory sick pay has been paid to their employees. See statutory sick pay forms and record-keeping.
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Employee absence as a capability issue
How an employee's illness can affect their ability to perform their job.
An employee may become incapable of doing their job to the required standard because they are genuinely affected by either of the following:
- long-term ill health related to an underlying medical condition and therefore they don't attend work for a long period of time
- frequent bouts of short-term sickness related to an underlying medical condition and they are therefore unable to attend work regularly
Addressing absence as a capability issue
In either of these circumstances, you should treat any absence as a capability issue and:
- deal with the situation sensitively
- investigate, measure, and monitor the employee's absence record
- consult them regularly to find out about their health and discuss ways of enabling them to remain in the workplace, or if on long-term sickness absence the likelihood of a return to work
- set time limits on assessing the situation and tell the employee
- let them know if their job is at risk, and why
- obtain medical reports - although you'll need their permission
- consider adjustments to their job to allow them to return to work and/or do their job more easily
- consider offering any other vacancy you may have which has duties that the employee may be fit to perform
To avoid an unfair dismissal claim, only dismiss as a last resort. Make sure you have followed fair and proper procedures, including statutory dismissal and disciplinary procedures. See dismissing employees.
Keep in mind the following:
- Check if the illness relates to a disability - if so, you may need to make reasonable adjustments so that the employee can carry out their job. For the definition of disability, see how to prevent discrimination and value diversity.
- Discount any periods of absence related to a pregnancy-related illness when taking action over someone's absence record. For the rights of pregnant employees, see pregnancy at work.
- An eligible employee may be entitled to statutory sick pay for up to 28 weeks - as well as any contractual sick pay. See pay: employer obligations.
Absence related to drugs and alcohol
Treat employees addicted to drugs or alcohol similarly to employees with any other serious illness. However, if an employee won't accept they have a problem or seek help, the issue may become one of unacceptable conduct.
Where the issue is purely one of conduct, ie the employee is not addicted to alcohol or drugs but their drug/alcohol consumption is leading to regular absence/lateness, you should consider subjecting them to your disciplinary procedure.
See workplace policies on smoking, drugs, and alcohol, and employee absence as a conduct issue.
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Employee absence as a conduct issue
How to manage an absence problem as a conduct issue where you may need to take disciplinary action.
Persistent short term absence due to illness, where there is no specific medical cause, should be dealt with as a conduct issue and you may wish to take disciplinary action.
Be aware though that sickness, domestic problems or travel difficulties leading to absence or lateness may not necessarily amount to misconduct. Absences relating to an underlying medical condition should be dealt with as a capability issue. Additionally, if the sickness is pregnancy related, you must not take disciplinary action. See employee absence as a capability issue.
Investigations before taking disciplinary action
Prior to taking disciplinary action, you should:
- review the employee's attendance record
- meet with the employee to discuss and review their overall attendance record
If there is no reasonable explanation for the absence you may decide to take disciplinary action.
Prior to taking disciplinary action, you could:
- caution employees that it is a requirement to comply with your absence and sickness policy/procedures and this would include ensuring they phone in at or by a given time each day
- ensure line managers follow up on any unexplained absence
Where employees are finding it difficult to manage home and work responsibilities, consider introducing flexible working arrangements.
Note that eligible employees have the right to request flexible working.
You must consider such requests seriously - see flexible working: the law and best practice.
Taking disciplinary action
The employee should be given an opportunity to improve. Usually warnings, both oral and written, are sufficient.
If the situation does not improve, you may have to consider dismissal, but only as a last resort and after following proper and fair procedures, including statutory dismissal and disciplinary procedures. See disciplinary procedures, hearings, and appeals.
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Employee absence due to conflict at work
How to manage staff who are absent because of disputes or other conflicts in the workplace.
An employee may be absent because of a conflict at work. This absence could either be in the form of sick leave or unauthorised and unexplained. With any type of absence, the employee may telephone you to explain what has caused it, or you may have to call the employee instead.
Resolving conflict at work
If you find out that an employee's absence is being caused by a conflict at work, you need to take steps to resolve it.
You may wish to use mediation as a way of resolving the problem. Mediation is a process whereby an independent third party intervenes in a workplace dispute to assist the parties to reach a satisfactory outcome. Mediation is especially suitable when used at the early stages of a problem at work and can be used in any dispute, but is particularly useful in relationship issues. The Labour Relations Agency (LRA) provides a free mediation service.
However, the employee might just tell you that they are affected by depression or stress. If so, you should try to find out - if it's not immediately clear - the underlying cause to determine whether it's work-related.
With unauthorised absence, the employee may be reluctant to tell you why they are absent, ie they might either avoid giving you an explanation or give you an explanation that you find unconvincing. In either case, you should arrange a return-to-work interview with the employee to find out the underlying cause of their absence.
If the employee continues to take periods of unauthorised absence, you may treat it as a conduct issue and apply your disciplinary procedure (which should as a minimum comply with the statutory dismissal and disciplinary procedures). You may find that, during a disciplinary hearing, the employee raises a grievance relating to a conflict at work that has ultimately led to their absence. If this happens, you should consider suspending the disciplinary process for a short period in order to deal with the grievance. However, if the grievance constitutes the employee's defence to the disciplinary issue, you may find it convenient to deal with both issues concurrently.
See disciplinary procedures, hearings, and appeals and handling grievances.
Return-to-work interviews
Whenever an employee returns to work after a period of sickness absence, you should hold a return-to-work interview with them.
As part of the discussion, you can:
- welcome the employee back
- check they are well enough to be at work
- update them on any news while they were absent
- ask them about the cause of their absence
You may find that they were absent because of a conflict at work. For example:
- they have an ongoing disagreement with a peer or their manager
- they are being bullied or harassed by a colleague, client or customer
- before their absence, you had called them to a meeting on an unrelated disciplinary matter, eg to discuss their performance or conduct
- there is a dispute between groups of workers
- there is a dispute between a group of workers and management over, for example, pay or conditions, which may have already led - or may lead in future - to industrial action
If so, you need to take steps to deal with the conflict. See managing conflict.
If you are already aware that the absence was caused by a conflict at work, you should inform the employee about the steps that you have taken or plan to take to resolve it. They should also have a clear understanding of what may happen if they continue to be absent from work.
Continuing absence during a disciplinary procedure
If you think an employee's continuing absence is itself due to a forthcoming disciplinary hearing and, as a result, they fail to attend it, you should:
- rearrange the date of the meeting
- consider seeking medical advice on an employee's fitness to attend a disciplinary hearing
- warn the employee that, if they fail to attend again without good reason, you could make your decision on the matter in their absence
If the employee repeatedly fails to attend rearranged disciplinary hearings, you need to consider all the facts and come to a reasonable decision on how to proceed.
Considerations may include:
- any rules you have for dealing with failure to attend disciplinary meetings
- the seriousness of the disciplinary issue under consideration
- the employee's disciplinary record (including current warnings), general work record, work experience, position and length of service
- medical opinion on whether the employee is fit to attend the meeting
- how you have dealt with similar cases in the past
- the explanations and reasons for non-attendance given by the employee
However, eventually you will be entitled to reach your disciplinary decision in their absence, whether it's a warning, action short of dismissal such as demotion, or even dismissal itself.
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Employee absence due to bad weather
Flexible working and other issues you may have to tackle during bad weather.
Bad weather - particularly heavy snow - and the resulting transport problems can lead to a large number of employees being absent from or late for work.
To reduce the impact of bad weather, you should plan ahead. For example, think about issues such as alternative working patterns or who can cover at short notice.
It's also a good idea to include a section on bad weather in your absence policy so that you and your staff know what to do when these situations arise.
Remote working
It's worth considering a more flexible approach to matters such as location - you could allow employees to work from home/remotely if, for example, all or most of their work is done using a computer with an internet connection.
Alternatively you could agree with the employee that they start and finish at a later time, or that they take a day's holiday or perhaps any accrued time off in lieu.
In addition, information technology could be useful in enabling a business to run effectively if many employees are absent from work, for example using laptops or smartphones to work remotely. See remote access security best practice.
Pay issues
You do not have to pay an employee if, because of bad weather:
- they are unable to get to work
- they are late for work (unless the travel itself is part of their working time or - in some situations - where you provide the transport)
However, you may have to pay an employee if:
- the right to payment is set out in their employment contract or a collective agreement
- it's become custom and practice for you to do so in these circumstances
Finally, providing you do not discriminate, you might, even without obligation, choose to pay for a short lateness absence, making it clear it is not a precedent. Such a consideration can engender staff goodwill.
Dealing with absence issues fairly
Even if your business is damaged by the effects of absent workers, make sure that any disciplinary action you take is carried out according to proper and fair procedure.
This will help maintain good, fair, and consistent employment relations and help prevent complaints to industrial tribunals. See disciplinary procedures, hearings, and appeals.
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Managing absence and sickness: five things you should know
Top tips to help employers effectively manage unexpected workplace absence.
As an employer, you should ensure you have appropriate systems in place to manage unexpected staff absences. These absences can affect productivity and profits and can even lower morale and motivation.
Top tips to manage workplace sickness and absences
The following top tips will help you to better manage unexpected absences in your business.
1. Understand the reasons for employee absence
It's important to be aware of potential factors contributing to the absence levels in your business. Reasons for absence could be personal or work-related. Some common reasons include unsafe work practices; heavy workloads; family problems; abuse from customers; conflict at work; ill health; drug or alcohol dependency; and bad weather. See how to manage absence and sickness.
2. Put effective policies and procedures in place
You can improve the impact of absences by putting effective policies and procedures in place and applying these fairly and consistently. These should be backed up by agreeable working conditions, good management, and a focus on staff motivation. Having an absence and sickness policy brings clear business benefits including lower insurance costs, higher rates of staff retention, and improved productivity. Having set procedures in place can also help you to prevent small problems from developing into larger ones, measure and monitor absence and identify underlying problems. Read about the benefits of having an absence and sickness policy.
3. Spend time developing your absence and sickness policy
You should develop your absence and sickness policy and procedures in consultation with line managers and workplace representatives. Your policy could include: when time off is permitted; how and when the worker should notify you of absence; when a worker should submit a medical statement or fit note from their healthcare professional; statutory sick pay arrangements; consequences of not complying with the policy; and responsibility for keeping attendance records. Absence and sickness policies: what to include.
4. Prepare for and manage unexpected absences
You should adhere to your absence and sickness policy and procedures when an instance of unexpected absence occurs. There are also a number of steps you should take to prepare for such an event: accurately record and monitor absence; train managers on how to handle absence; provide special equipment if appropriate; and set targets for absence levels. You should also conduct return-to-work interviews after absences, interviewing sensitively to assess if there are any underlying causes. You could also develop other initiatives to encourage good attendance such as the introduction of flexible working or introducing counselling and healthcare packages. Manage workplace absence and sickness.
5. Measure and monitor absence in your business
Monitoring absence in your business allows you to find out how much working time has been lost, where the absence occurs most, how often individual workers are absent, and whether there is a pattern of absence. With this information, you should be able to take the appropriate action to improve the situation. See measure and monitor absence and sickness. Not least, measuring and monitoring absences might reveal annual patterns of stress points which can help you prepare for and manage absences to a degree eg restrict (within contract limits) leave at such times.
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Manage absence and sickness
Managing sickness absence - MindWise (video)
In this video case study, MindWise and the Equality Commission, explain the importance of having a workplace sickness absence policy.
MindWise is a Northern Ireland charity that works to support those at risk of and affected by, severe mental illness and mental health difficulties.
MindWise has a low sickness absence among its staff. Anne Doherty, Deputy Chief Executive, explains how the organisation achieves and maintains this success rate. This includes having the right policies and procedures, alongside creating a culture where there are workplace initiatives, to promote a healthy environment for all staff. The charity specifically encourages WRAP (Wellness Recovery Action Planning) as a method to support positive mental health and wellbeing.
MindWise works closely with the Equality Commission. In this video, Una Wilson from the Equality Commission also highlights the challenges that Northern Ireland businesses face when managing sickness absence and the local support that is available to assist.
Case StudyAnne DohertyContent category
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