Monthly Archives: April 2012

Every worker in the UK is entitled to statutory minimum paid holiday?

When the Working Time Regulations were first introduced in 1998 they created a legal right to a minimum amount of paid leave.   At that time there was a three month’s qualifying threshold. Later the three months threshold was removed and the basic holiday increased.

The threshold still lives on in the organisational memory – we still see contracts today that say you don’t get any leave during the first 3 months (or some other period) of employment. Whilst employers can prevent staff from taking leave during this period, they cannot prevent at least statutory leave from accruing.

So anyone on a short term contract of employment is accruing statutory leave whatever the contract says and should be able to take the paid leave during their employment or paid for any unused leave when they leave.

For more information on holidays

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Employment law with attitude

via Annabel Kaye’s blog at Ecademy by Annabel Kaye

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Filed under contract, holiday

Tombstones and monuments

References and how to give them

Have you ever received a lengthy questionnaire about an ex-employee seeking all sorts of details, from their sickness record to a detailed analysis of their performance record?

For a smaller business, finding this information about ex-employees and putting it together in a reliable and accurate form can take hours.

Did you know there is no general legal obligation on employers to give references to anyone?

But before you get too excited and decide to throw all those reference requests in the bin, here are some top tips on references and how to organise when to give them and how.

  1. Have a consistent and published (to your staff) policy on giving references.
  2. Tombstone” references.  If you are not going to give anyone a reference beyond confirmation of start date, finish date and job title, make sure everyone who comes to work for you knows that.
  3. Stick to your policy – do not single some people out for special (worse) treatment.  This is vital if your ex-employee:
    a. has made an equality-related grievance (victimisation)
    b. has taken an equality-related tribunal claim (victimisation)
    c. belongs to a group that might give them a basis for asserting that members of their group tend to get worse references from you
    d. sometimes as part of a compromise agreement you may find that you have to agree a reference in a particular form which does not match your usual policy, but avoid that if possible.  Better to use your policy to frame the type of reference that you are willing to give in the compromise.
  4. You are liable for factual references you give.  If the new employer relies on them and suffers harm as a result, you could owe compensation – so never lie in a reference
  5. You are liable if you defame an ex-employee in a reference – so false bad references can be a problem for you too
  6. If you want to go beyond a tombstone  reference and move towards a longer format (perhaps a monument to their achievements) make sure your opinions are supported by facts
  7. Never disclose personal data about a named individual without their consent so:
    a. Have a policy on references that includes a statement about when you will respond to requests
    b. Ensure your managers comply with that policy and do not brief ‘off the record’
    c. Only disclose ‘sensitive data’ about health, religion, politics with the express consent of the individual for the purpose for which you are disclosing it
    d. Ensure sensitive data is securely transmitted – never in open post or open email.
  8. You can usually limit your liability when giving a reference by using a suitable disclaimer.  So it’s useful to make it a part of your reference policy that a legal disclaimer will always be made on your references (and to follow your own policy!).

You don’t have to fill in other people’s forms – you can provide the references you feel are appropriate in the format you want.  It is very rare that you are actually under a legal obligation to provide a reference – if someone suggests that you are obliged to respond, ask for the specific statutory reference that establishes the obligation … and do check that it does have that effect!

Almost always, you don’t have to give a reference if you don’t want to, and you don’t have to spend hours of your time on it.  But, remember that you will also be requesting references yourself some day.

And by the way, references are an extremely unreliable way of confirming an individual’s suitability for a role, since most referees won’t know what your role requires, and you won’t know how their old role was structured.  It is so easy to recruit someone with a glowing reference who turns out to be useless.  Often the information in references (other than start and finish date) is worse than useless – but sometimes taking up a reference can show up that your candidate is being less than truthful, which is valuable information before you take someone on.  So on balance, it’s probably still worth asking for references and reviewing them carefully – just don’t expect them to do too much for you.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website:


Filed under employment law

Anti-social media and business

What started as a great way to chat to your mates (and waste time at work) has turned into a multi-million  industry used by businesses to promote their brands.

The drunken college photos and tactless remarks published in the heat of the moment come back to bite . . . and suddenly people are saying “It’s private” about things they published to millions of people!.

Today people are talking about copyright, advertising codes and list ownership . . . and the old idea that somehow “cyberspace” or ‘social  media’ was outside the legal channel is beginning to fade.


facebook (Photo credit: sitmonkeysupreme)

It’s just like when pop festivals went from being free to paid.  The front line hippies move on to something else, and business moves in and turns the festival into something profitable, structured (and sometimes with better loos).

Years later, the same thing happened with raves.  Though your mates might not remember what you did at Glastonbury or the local rave, the big problem with social media is that there’s a record that everyone can see years later.

Your ancient rant about the guy/girl who dumped you reads like a sexist polemic from a trainee stalker . . . and here you are applying for a role in a front line equal opportunity employer’s PR team – and there’s your rant still drifting about, fatally undermining your pitch for the dream job (now) that you had no idea you would ever be interested in (then).

Social media is growing up.  It is still dynamic, exciting and fascinating to use for business and personal communication.   But now a whole set of legal rules apply.   From copyright, to slander, to harassment – the real world and the virtual world increasingly coincide and collide.

Business needs social media, and people who know how to use it.   It is too late for corporates to ban social media in the workplace or from corporate communications.  Even if you were to try to do this, or block access from company systems, people have it on their mobiles.

We constantly  use social media – from Twitter, to Facebook to Googleplus and WordPress to LinkedIn and even Pinterest   to promote our business and reach out to people who might want to work with us and think with us.  How could we ban that?  Why would we want to?

We need  social media policies that help people realise the effect they are having, but allow them to do their job which will increasingly involve using it.  We need bosses to understand the risks of social media and how to manage them.

For a great social media policy written by people who use it for people who use it click here.

To join us for half a day in Croydon on Social Media and the Law click   4 April and  6 June

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060 Website:
You can follow Annabel on Twitter


Filed under contract, employment law, social media