FAQ: General

For unsuccessful job applicants, how long should companies keep CVS and completed application forms so companies do not need to worry about discrimination claims?

The minimum time you should keep CVs and completed application forms for is three – four months. Unsuccessful job applicants have 3 months in which to bring a race, a sex or a disability or some other type of discrimination claim.

However, it is not just safe to discard all CVs and application forms after 3 months because, if the unsuccessful applicant sends their claim into the tribunal at the last minute, the natural application of the process plus any potential delays suggest a measure of caution is appropriate. Therefore employers should wait three – four months before it is relatively safe to discard all of those old applications.

What is the risk of withdrawing an offer of employment on the basis of a detrimental verbal reference?

Firstly, the employee is not going to have unfair dismissal rights, because they are not going to have been employed for a year.

The only claim they might have in reality is a claim for notice pay, and most employees who have just started will be in their probationary periods and will be on a one week’s notice.

However, employers will not have to pay the notice pay if the job offer makes it clear that the job is subject to receipt of satisfactory references. In this case the employer has a very wide discretion as to what it is, and what is not, satisfactory, as long as the decision that a reference is unsatisfactory or not is not arbitrary or perverse. Tribunals and courts allow employers to make up its own mind as to what is a good reference and what is not.

In a T.U.P.E. transfer situation, do collective agreements transfer?

Yes they do and so does union recognition. If the out going contractor or the selling business recognises a union and has a collective agreement with it then both the union recognition transfer, to the income contractor/purchaser, as does the obligation to be bound by the collective agreement.

Is it possible to find out if someone is a serial employment tribunal complainant? In other words, can you find out if someone constantly puts in claims?

It is not easy to find out if someone is a serial complainant in the sense of them putting in numerous claim forms. There used to be something called the register of tribunal claims at Bury St Edmonds, which recorded every single claim that was lodged. That was abolished a few years ago, and now we have a register of judgements. That records every single decision:  not the claims when they get lodged or get settled, but the claims that go to a full hearing and get a decision out.

The judgement register can be searched. but you have to go to Bury St Edmonds to do it. They will not do it over the phone or over the internet. The phone number is 0845 795 9775. You can ring them and they will walk you through the process.

If someone is a serial complainant, or more accurately a serial judgment person who takes a lot of cases all the way to trial, is that a factor that could influence a tribunal?

A history of complaint will not be enough to get a costs award, or get a claim struck out. It is only if there are other good reasons for saying the complaint is frivolous in a particular claim, then the existence of a history of  complaining might be a relevant factor.

If someone is identified as a persistent complainer against lots and lots of different employers, this can be drawn to the attention of the  Attorney General who can make an application to the high court to stop that individual bringing any more claims (i.e. without the individual gaining specific permission of the court first).

If a difficult employee resigns from employment and gives eight weeks notice but their contracts say they must give four weeks notice can we just get rid of them after 4 weeks, or will that count as a dismissal.

You cannot “just get rid of them after four weeks”. An employee will be obliged under their contract of employment to provide x weeks notice, but this is usually a minimum of x, not a maximum.

If they give more than x, as in the question, then it is acceptable – unusual perhaps, but acceptable.

If you choose to dismiss them purely because you want to hold them to the shorter notice period, this is likely to lead to a successful unfair dismissal claim where the award would be at least the additional week’s notice plus a potential compensatory award.

If an employment contract says three months notice from the employee, but only one months notice from the employer, is that an unfair term and is it unenforceable.

It is completely legal as all it does is define the notice periods. It is probably not very good industrial practice to have a longer notice period for an employee than for an employer but it is completely legal.  There is nothing inherently unlawful or unenforceable about having different notice periods.

What breaks am I entitled to under the working time regulations?

The Working Time Regulations 1998 state the following provision for rest breaks at work and time off:

Rest breaks at work

A worker is entitled to an uninterrupted break of 20 minutes when daily working time is more than six hours. It should be a break in working time and should not be taken either at the start, or at the end, of a working day.

Daily rest

A worker is entitled to a rest period of 11 consecutive hours rest in each 24 hour period during which he works for his employer.

However, there are a number of special circumstances in which the entitlement to rest periods does not apply, for example, where the activities involve a need for continuity of service or production or where there is a foreseeable surge of activity. Also, if a shift worker changes shift, it may not be possible for them to take their full rest entitlement before starting the new pattern of work. In such a case the entitlement to daily and weekly rest does not apply.

Weekly rest

An adult worker is also entitled to one day off a week; this can be averaged over 2 weeks.

Young or adolescent workers

If a young worker is required to work more than four and a half-hours at a time, then they are entitled to a break of 30 minutes. A young worker is also entitled to twelve uninterrupted hours in each 24-hour period in which they work. Both these entitlements can only be altered or excluded in exceptional circumstances. Young workers are also entitled to 2 days off each week and this cannot be averaged over 2 weeks.

What are the ICE Regulations?

The Information and Consultation of Employees (ICE) Regulations were introduced on 6 April 2005 and currently apply to businesses with 100 or more employees. They give employees the right to be:

  • Informed about the business’s economic situation
  • Informed and consulted about employment prospects
  • Informed and consulted about decisions likely to lead to substantial changes in work organisation or contractual relations, including redundancies and  transfers.

The Regulations may mean an employer has to establish new arrangements for informing and consulting their employees. These new procedures can be triggered either by a formal request from employees or by the employer deciding to start the process. The Regulations also allow the use of pre-existing agreements which have workforce support.

The regulations will apply to businesses with 50 or more employees from 6 April 2008.



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