Asmita Assciates

Recruiting staff, your obligations and their rights

This Guide provides information on the legal rights any new members of staff have, along with the legislation you need to comply with from the start.

If you are new to the recruitment process then you need to be aware of the legal rights your new members of staff have, along with the legislation you need to comply with from the start.

The information given in this Guide only applies to employment in England, Scotland and Wales.

Recruiting a member of staff

Under the Asylum and Immigration Act 1996 it is a criminal offence for an employer to employ an illegal immigrant. So before taking on any new employees ask to see (and copy) one of the following:

A document issued by a previous employer, the Inland Revenue, the Benefits Agency, the Contributions Agency or the Employment Service which states the NI number of the person named.

A passport or national identity card issued by a member state of the EC and which describes the holder as a national of that state.

A passport describing the holder as having the right of abode in the UK
A certificate of registration or naturalisation as a British Citizen
A Birth Certificate issued in the UK or Republic of Ireland
A passport or other travel document endorsed to show that the person named is exempt from immigration control, has indefinite leave to enter or remain in the UK or current leave and is not precluded from taking the employment in question or has no time limit on their stay
A letter issued by the Home Office confirming the same
A passport or other travel document endorsed to show that the holder has a current right of residence in the UK as a family member of a named national of a member state of the EC and who is resident in the UK
A letter issued by the Immigration and Nationality Directorate or the Home Office indicating that the person is a British Citizen or has permission to take employment
A work permit or other approval issued by the Dept for Employment and Education
A passport describing the holder as a British Dependent Territories citizen (having a connection with Gibraltar).

Equally you need to be aware of the terms and conditions of employment regarding your new staff member.

Written statement of terms and conditions of employment

If employed for more than one month, an employee is entitled to receive a written statement of terms and conditions under the Employment Rights Act 1996 within the first eight weeks of employment.

Equal pay

Under the Equal Pay Act 1970 men and women are entitled to the same pay for the same or like work and for work of equal value.

Part-time workers

Under the Part-time Workers Regulations part-time workers have the right not to be treated less favourably than the employer treats a comparable full-time worker as regards the terms of his contract, or to be subjected to any other detriment by any act or deliberate failure to act by his employer. Importantly this right only applies if the reason for the treatment is that the worker is a part-time worker and the treatment is not justified on objective grounds.

Equal opportunities

Under the Race Relations Act 1976 discrimination against a person on the grounds of colour, race, nationality or ethnic origins is prohibited. An ethnic group is defined as having two characteristics:

A long shared history
A cultural tradition of its own, often but not necessarily associated with religious observance

Sex discrimination

When the Sex Discrimination Acts 1975/86 were originally passed they were primarily designed to protect women but nowadays the law applies equally to either sex. The legislation has been further extended to offer transsexuals protection from discrimination on the grounds of gender in employment or vocational training with the introduction of the Gender Reassignment Regulations 1999.

Genuine Occupational Qualifications (GOQs)

There are some GOQs which are exceptions to the legislation when it is acceptable to discriminate. These are for reasons of:

Decency/Privacy e.g. body searchers at the airport
Promotion of welfare or education
Single sex institutions
Accommodation with the job is provided e.g. there may be limited space or bathrooms
Physiology e.g. clothes models
Married couples e.g. management of a pub for a brewery
Job is outside UK and local customs and/or laws prevent women performing the job

Disability

Employers with less than 15 staff are exempt from the provisions of the Disability Discrimination Act 1995. Employers with more than 15 staff are prohibited from discriminating against disabled job applicants and employees.

Employers may need to make adjustments to their premises and working arrangements in order to ensure a disabled person is not disadvantaged.

Note that companies of all sizes are required to comply with the Act's measures concerning the provision of services.

Pay and benefits

When you take on your first employee contact your local Inland Revenue office and ask for a 'PAYE system'. They will assign you a Tax Reference Number. Obtain a P45 for each employee or complete a P46.

Make the necessary deductions and submit them monthly to the Inland Revenue Accounts Office.

You may have to pay tax credits to your employees under the Working Families Tax Credit and Disabled Person's Tax Credit Schemes. You may also need to make Student Loan deductions if requested by the Inland Revenue.

Employees are entitled to an itemised pay statement - usually known as a pay slip - under the Employment Rights Act 1996.

National minimum wage

Under the National Minimum Wage Act and Regulations all workers are entitled to specified minimum hourly wages - check with the relevant authorities for the current level of minimum wage.

National Insurance

Employers pay National Insurance contributions for all employees aged 16 and over who earn more than the Employer's Earning Threshold. Employees begin to pay their National Insurance contributions when their earnings exceed the Employee Earnings Threshold.

For registered companies there are special rules regarding National Insurance contributions for directors.

Working Time Regulations

The key points of the Working Time Regulations are:

Maximum working week - the average working week should not exceed 48 hours. The average weekly working time is normally calculated over 17 weeks.
Rest periods - every worker should have a minimum daily rest period of 11 uninterrupted hours per 24 hour period. Anyone working six hours or more per day should be entitled to a rest break of 20 minutes. A worker is entitled to one full day off a week. Days off can be averaged over a two week period, so that workers can take off two days per fortnight.
Annual Leave - every worker is entitled to four weeks' paid annual leave (including public holidays) with effect from November 1999.
Night Workers - employees have the right to free health checks. Employees have the right to transfer to day work wherever possible in the event of night work affecting their health. Employees have the right to appropriate health and safety protection and facilities equivalent to those available for other workers.
Young Workers - a young worker is an employee between the ages of 16-18 years old. If a young worker works more than four and a half hours a day they are entitled to a rest break of at least 30 minutes and a break of not less than 12 consecutive hours in each 24 hour period. A young worker is entitled to a weekly rest break of at least 48 hours in any seven day period.

Insurance

Employers must take out Employer's Liability Insurance and display the certificate.

Health and safety

Contact the Health and Safety Executive (HSE) to check your legal responsibility for the health and safety of both your employees and the public. Register your business with either the HSE (factories, workshops) or with your local authority (most offices, shops and businesses). Some businesses may also require a Fire Certificate. Check with your local Fire Authority.

The following documents are generally prepared with the employment process:

Reference procedure note
Working time procedure note
Health assessment questionnaire
Employment contract
Employment form for personnel
Health and safety checklists and notes and more

Recruiting staff, your obligations and their rights

USEFUL INFORMATION