HR Advice and Questions

The ROA was amended in 2013 and again in 2020 so that applicants for posts no longer have to disclose ALL spent convictions. This means that minor convictions from a number of years ago do not have to be disclosed and it is unlawful for employers to ask applicants to disclose these or to consider them even if disclosed knowingly.

Ministry of Justice and DBS policy / guidance requires employers to explain the effect of the 2013 / 2020 exceptions to the ROA to applicants and to signpost applicants to impartial advice on the disclosure of criminal history before they complete any self declaration, etc. It is also best practice to give them an opportunity to declare any relevant criminal record prior to interview and to provide a signed statement that their declaration is accurate and complete.

• It ensures applicants are aware that the prospective employer is entitled to the information and gives them an opportunity to flag up information in a confidential way. This is an opportunity to get it out into the open so that if necessary, it can be discussed with them at interview or beforehand, rather than having to wait for a DBS disclosure;
• It is part of the process of deterring unsuitable candidates and it shows that safer recruitment is taken seriously;
• Employers have a right to know about unspent cautions and convictions but since 28/11/20 this information may not be included on a standard or enhanced DBS certificate so self-disclosure may be the only way of securing the relevant information;
• Having a signed statement that the information given on the application is complete and accurate means that if the DBS certificate reveals that the successful candidate has deliberately lied about his or her criminal background, it is easier for the employer, the police and/or the regulatory agency to take action against the person.

• You should remove any reference to Criminal self disclosure in the main body of your application form;
• You should avoid asking questions that are too broad, e.g. ‘do you have a criminal history -yes / no’ tick box on application forms;
• Ideally, shortlisted applicants should be asked to provide any information about unspent convictions, cautions or bind-overs and relevant criminal offences that would not be filtered in a separate disclosure form to be submitted before interview date;
• The recruitment panel should be made aware of relevant disclosed criminal history in order to discuss this with the candidate at interview;
• Applicants should be given the opportunity to seek legal advice and / or impartial advice from Nacro or Unlock before answering any questions about their criminal history.

It is important to be aware that it is discriminatory to use any self-disclosed information for short-listing. Only shortlisted candidates should be asked to complete the self-disclosure form.

In November 2020, the ICO made clear that under GDPR and the Data Protection Act 2018, it is for employers to determine when best to ask for a criminal self-disclosure but that asking all applicants to disclose as part of the application process could be seen as too broad and therefore a breach of data processing principles including minimisation. You should not use the information disclosed to rule someone out of the running for a post. Fair assessment criteria should always be applied.

The information disclosed can then be considered against the ROA 1974 and amendment order in 2020; information regarding unspent cautions and convictions plus any offences that would not be filtered can then be discussed with the candidate (at interview or in a separate suitability meeting) as part of assessing whether the information is relevant to suitability to work with children.

As it is possible to lie on a self-disclosure form, a DBS certificate should still be sought, if it is necessary for the post applied for. The two disclosures can be compared against each other to highlight any issues.

In most cases, yes – but there are some risks attached. If the contract of employment or your holiday policy sets out how to cancel holiday, you must follow that. If there are no express provisions, the Working Time Regulations provide a mechanism for employers to cancel leave. Under Regulation 15(2)(b) you must give as much notice as the leave you want to cancel. Therefore, if you want to cancel two weeks’ leave you have to give two weeks’ written notice. You’ll need to explain to your employees why you have cancelled their holiday and tell them when and how they can re-book.

Cancelling holiday at short notice is likely to be unpopular. If employees have made travel or other plans they may ask you to compensate them for any cancellation charges they incur. They could also argue that you are acting unreasonably and are in breach of the implied term of mutual trust and confidence, which gives them the right to resign and claim constructive dismissal (they’ll need two years’ service).

Since the initial lockdown we have all become more proficient in using online technologies. If a hearing can be conducted in a fair and reasonable manner using a virtual hearing then matters could proceed.

Everyone must be able to access the hearing. If they cannot access the hearing then you may need to suspend the process until they can attend or it can be done face-to-face. You should inform people involved of your decision either way.

Any changes would be classed as a variation of contract. Any proposed changes needs to be done in consultation with staff. You should seek advice before making any changes as making changes without an agreement could result in you being in breach of contract.

This is covered by your usual leave of absence procedures and you should refer to your Leave of Absence Policy.

The coronavirus outbreak has resulted in many people becoming home workers. As an employer you therefore need to think about three key aspects Display Screen Equipment / Lone Working / Mental and physical wellbeing. There are some useful checklists and guides on the HSE website https://www.hse.gov.uk/home-working/index.htm.

The answer is YES. A few basic tips:
• Be vigilant – no-one else in your household must have access to or see the data you are using
• Use strong passwords to protect all devices
• Make sure you use a password that no-one else in the household knows or can guess
• Lock your screen whilst you are away/not using your device
• Check with your IT support that all your devices are fully up to date: anti-virus, malware and security updates
• Always be very careful which websites you visit and which email attachments you open
• Make sure they are always kept in a secure places
• When emailing always use a password or secure portal to share information – if there’s a data breach follow your reporting procedures urgently!

The OH doctor, the employee, the employer and any union representative who the employee may have during this process.

No, however some companies do have clauses in their employment contracts/policies detailing employee’s responsibilities. It will be beneficial to keep open dialogue with the employee to try and gain their consent, if this cannot be obtained you need to make them aware that any decisions made regarding their employment can only be made with the information you have. Therefore, it would be beneficial for them to attend/release the report.

Not necessarily, it is best practice to gain consent and “buy in” from the employee however you can refer without consent. Please be mindful though that this may lead to employees either not attending the OH appointment or attending and then refusing the report to be released to you the employer.

An individual may be referred to occupational health (OH) where there is concern about their health, performance (where there may be health implications) or level of sickness absence. There is no set time when an individual can be referred, this could be at the start of their absence, when they hit long term sickness or at any other time. However, your sickness absence policy may set out when this is expected in your work place.

In essence they are the same, but a complaint is generally something you don’t like so you’re complaining about it. A grievance or ‘raising a grievance’ is ultimately a problem, concern or complaint at work that you should raise with your manager or your manager’s manager! This is a formal process and is typically about:

• the way you’re being treated
• discrimination due to the 9 protected characteristics under the Equality Act or something arising from the equality act… being a union rep/giving evidence against your employer etc.
• something you’ve been asked to do that you don’t think is appropriate etc.

The duty is on the employer to look into your grievance, follow the procedure and respond accordingly.

Informal discussion outside a grievance process is always a better resolution as ultimately everyone has to work together, try talking and mediation before a formal grievance, as it can be stressful for all parties.

At FusionHR we are accredited trainers through the Lucy Faithful foundation and we deliver safer recruitment and refresher training. This is a question we’re often asked and in KCSIE there is no defined time-frame. Ultimately it is down to school/Trust/LA policy. However, school leaders must be able to demonstrate that any safer recruitment and safeguarding training issued was ‘relevant and up-to-date’. It’s about constantly reviewing your practice and creating an on-going culture of vigilance to ensure you are covering all areas identified within the session. An individual can attend a half day ‘refresher’ course if they have previously attended the ‘full’ session. If not, it’s recommended by that foundation that the full safer recruitment training is completed. Schools are still required to have at least one member of each recruitment panel safer recruitment trained. We recommend refreshing your knowledge at least every 3 years if not more frequently. Take a look at our upcoming courses or consider an on-site course for all staff with a responsibility for safeguarding and or recruitment.

An employee in receipt of a salary with the same basic pay each month will not receive any extra pay for an extra day in 2020 – unless this is stated in a contract of employment. An employee who is paid on an hourly rate will be entitled to be paid for all hours submitted, regardless of when or the number of days in the year.

Under Working Time Regulations, an adult with a daily working time of more than six hours, is entitled to an uninterrupted rest break of not less than 20 minutes, the break should be during working time and not at the beginning or end of the working day. Workers cannot choose to opt out of this directive.

No. There will be a local agreements either at Local Authority or Trust level that set out consultation requirements, typically this relates to employee policies and changes to terms and conditions. Consultation should be meaningful, reasonable and include staff and unions. See our training on Effective Consultation for help in consulting with unions in order to get the best possible/desired outcome for your school and staff.

There is no set criteria other than acceptance, but typically we recommend that it also confirms the last day of employment and the last day of work (if this is different), any outstanding entitlements to holiday pay (or to pay back!), guidance on returning property and any arrangements for handover.

We also recommend that a sensitive discussion is held about the employee’s reasons for resignation and to provide an opportunity for feedback. An employer should seek to determine any underlying issues that have caused dissatisfaction which could be resolved to prevent future resignations and to benefit the organisation. Our client document downloads includes a model exit interview questionnaire.

You would be within your rights to refuse to pay an employee who does not appear for work because of severe weather conditions as the employee is not fulfilling their contract of employment. However, the financial cost of paying staff, even though they are not working because of bad weather, may be outweighed by the benefits. Staff morale and your reputation as an employer may benefit in the long run if you pay staff on a snow day.

If you become aware that a foreign national’s permission to work in the UK has expired or is due to expire, it would be illegal to continue to employ them. However, employers also have legal duties in respect of their employees and it is important to follow a fair process to avoid a potential discrimination claim.

Firstly, discuss and investigate the employee’s immigration status, review relevant documents and use tools such as the Home Office employer checking service. This online service enables employers to check whether or not an employee has the right to work in the UK in situations where they are unable to provide the appropriate documents.

If you are reasonably satisfied that the employee has submitted an application for a visa extension or a new visa, there is a 28-day grace period after the original immigration permission expires when employment is still lawful. You should document your reasons for being satisfied and any evidence submitted in case of a challenge further down the line. The 28-day grace period also provides a window to investigate and establish if dismissal is necessary. During this period, you should consider other options that would enable you to continue to employ the individual in the longer term. For example, sponsorship or dependant / ancestry routes may enable the employee to continue to work lawfully in the UK.

If you have obtained evidence to justify a decision to terminate employment such as a negative verification notice from The Home Office, write to the employee to confirm the dismissal, the date on which it will take effect and the reasons for the dismissal, including the steps that were taken or options considered to avoid dismissal.

The individual could make a subject access request under the General Data Protection Regulations, either to the employer that provided the reference or to the employer that received it, or both. However, the Data Protection Act 2018, which supplements the GDPR, provides an exemption from disclosure of confidential employment references, therefore both employers could refuse the request. We advise that reference requests and responses provided are marked as Confidential.

Any court proceedings brought about by a claim for discrimination or unfair treatment is likely to order disclosure of the reference. References should always be factual, fair and accurate.

Yes there is absolutely nothing to stop someone returning to work, although there may be implications in terms of tax and the individual would need to work out the cost benefit of returning to work. Recommend that they seek independent financial advice!

Personnel files may not contain what they should, for many reasons. In education, it may be that information didn’t TUPE transfer to the school / academy. We would advise that you audit all of your personnel files (or we can do this for you) and identify what’s missing. You can then determine which information you need. If you cannot evidence an employee’s eligibility to work, the fine is up to £20k! Acceptable documents should be requested from employees immediately and verified.

For missing references, we recommend a risk assessment is carried out to document the reason for missing information, consider the length of time in employment and gather what information is available to determine the risk and follow up actions. This would include looking at indicators such as the DBS, other employment checks, self-disclosures and conduct during employment. Going back to former employers for references in many cases is not realistic and may not add any value especially for long-standing employees.

If you are making less than 20 employees redundant there are no set rules for consultations however any consultation must be meaningful. If you are proposing to make 20 or more employees redundant, you will need to ensure you have enough time to collectively consult with your employees because minimum periods apply before you can dismiss employees. If you’re considering making between 20-99 redundancies, the minimum period of consultation is 30 days, increasing to 45 days if you’re making more than 99 people redundant.