HR Frequently Asked Questions

If you’re preparing to recruit new talent, make sure your interview approach is fair and compliant.

Even well-intentioned questions can unintentionally cross legal boundaries and cross the line into discrimination, so understanding what not to ask is essential. For our full guide to staying compliant and keeping your interviews focused on what really matters including skills, experience and suitability for the role, as well as a real-life example showing how even one misplaced question can have major financial and reputational consequences for employers, read our Employer FAQs

Employees work under a contract of employment. They’re expected to do the work personally, follow reasonable instructions, and the organisation has an obligation to provide work and pay for it.

Employees are entitled to the full range of employment rights, including:

• Statutory sick pay
• Paid annual leave
• Maternity, paternity, adoption and parental leave
• Protection against unfair dismissal (currently after two years’ service but this is due to change - see below)
• Redundancy pay
• Statutory notice periods
• National Minimum Wage / National Living Wage
• Pension auto-enrolment
• Protection from discrimination

If you control how, when and where someone works, and there’s an ongoing obligation to provide and accept work, they’re likely to be an employee - even if their contract uses a different label.

Employment Rights Bill:

Some rights currently subject to qualifying service or specific notice periods are proposed to change under forthcoming legislation (the Employment Rights Bill).

While most core employee rights remain as set out above, employers should be ready for reforms such as potential day-one protection for unfair dismissal, wider flexible-working rights and earlier access to family-friendly leave.

Workers provide services personally, but the relationship is less formal than employment. They might not be guaranteed hours and can sometimes turn down work. Workers have fewer rights than employees, but they’re still entitled to:

• The National Minimum Wage / National Living Wage
• Paid annual leave (statutory holiday)
• Rest breaks and working time protections
• Protection from discrimination
• Protection against unlawful deductions from pay

Workers don’t usually have the right to statutory sick pay, redundancy pay or protection from unfair dismissal.

This group often includes casual or zero-hours staff, agency workers and people in the gig economy. However, here’s a heads-up on forthcoming changes:

• Under the Employment Rights Bill (ERB), new rights are being introduced for zero-hours and “low-hours” workers (and agency workers under certain thresholds), including:
  • A duty on employers to offer a guaranteed hours contract reflecting the hours a worker regularly works over a reference period (expected to be around 12 weeks).
  • A requirement to provide reasonable notice of shifts (including changes or cancellations) and compensation if hours are cancelled or curtailed at short notice.
• Although the full regulations (such as the definition of “low hours”, the exact reference period, and when the rules will take effect) are yet to be finalised, it’s clear that the “one-sided flexibility” of some zero-hours arrangements is being challenged by law

Some people provide services through their own business as self-employed contractors, while others are engaged via umbrella companies or employment intermediaries. These arrangements can look similar, but the rights and responsibilities differ.

Self-employed and independent contractors

• Genuinely self-employed people run their own business. They decide how, when and where they work, can send a substitute, and take financial responsibility for their own tools, insurance and costs.
• They’re not entitled to employment rights such as holiday pay, sick pay or protection from unfair dismissal, although they are still covered by health and safety law and the Equality Act 2010.
• If, in reality, the relationship looks more like employment (regular hours, direct supervision and integration into your business), they may be reclassified as a worker or employee, with the associated rights.

Umbrella companies and employment intermediaries

• Umbrella companies act as employers of temporary or agency workers, who are then supplied to different agencies or end clients.
• While these workers are usually paid through PAYE by the umbrella company, that tax status doesn’t automatically determine their employment status under employment law.
• Depending on the circumstances, someone engaged through an umbrella company may be classed as a worker or, in some cases, an employee of the umbrella company. For HR purposes, it’s the actual working relationship that matters i.e. who controls the work, who directs performance, and whether there’s a genuine ongoing obligation to provide and accept work.

Employer tip: If you use agency or umbrella staff, make sure everyone understands who the legal employer is, who provides HR support, and which policies and procedures apply. Clear agreements and communication help avoid confusion over pay, holiday entitlement and employment rights

Volunteers give their time freely without receiving payment (other than genuine reimbursement of expenses). They don’t have a contract of employment or worker agreement, and so they don’t have employment rights.

However, organisations still have responsibilities to protect and support their volunteers. This includes:

• Providing a safe environment and carrying out risk assessments
• Ensuring they’re not discriminated against under the Equality Act 2010
• Having suitable insurance cover in place
• Handling personal data in line with data protection law
• Reimbursing only genuine out-of-pocket expenses.

Volunteer agreements can help set expectations, but they should not create legal obligations. Otherwise, a tribunal could decide the volunteer is actually a worker and entitled to pay and holiday rights

As long as the genuine reason for dismissal comes under the five fair reasons, and ensuring that proper procedures are followed, even if an employee has a protected characteristics, they can be dismissed. Learn more about the Five Fair Reasons for dismissal and what Protected Characteristics are in our detailed Employer FAQ here.

Whilst it’s a positive sign when someone wants to get back to work, bringing them back too soon or without the right planning, can cause problems. In our recent Employer FAQ specifically around Employees returning early from sick leave, we have explained what you can do, what you should do, and how to do it in a way that’s fair, legal, and constructive. Read it here.

An employee can come back to work before their fit note expires .If off sick for 7+ days, the employee must provide a fit note stating "not fit for work" or "may be fit for work".

An employee can come back to work before their fit note expires. They don’t need a new note or a “fit-to-work” stamp.

A “may be fit” note isn’t a return order - it is only a prompt to discuss reasonable adjustments like phased returns, reduced hours, or adjusted duties.

No new GP note is required to return early, however you can request one if you reasonably need clarity, for instance, due to insurance or safety concerns.

There are a number of paid statutory parental leave and pay laws that all employers have to abide by and provide to their employees provided certain eligibility criteria are met. These include:

• Maternity leave and pay
• Paternity leave and pay
• Adoption leave and pay
• Shared parental leave and pay
• Parental bereavement leave and pay
• Neonatal care leave and pay (new, effective April 2025)

For more information on the details of the above laws including the duration of leave, how much pay, and eligibility criteria, please read our full Employer FAQ page for this topic by clicking here. 

There are a number of unpaid statutory parental leave laws that employers must also abide by and provide to their employees if requested. These include:

• Ordinary Parental Leave
• Emergency Dependent Leave
• Carer's Leave (effective April 2024)

For more information on the details of the above laws including the duration of leave and eligibility criteria, please read our full Employer FAQ page for this topic by clicking here. 

Rolled-up holiday pay refers to the practice of including an additional amount in workers' regular pay to cover their holiday entitlement, rather than paying them during their actual time off. Previously deemed unlawful, this method became permissible from 1st April 2024 for workers with irregular hours or part-year contracts. It's crucial to note that rolled-up holiday pay is only applicable to these categories of workers.

For irregular hours or part-year workers, holiday pay should be calculated at 12.07% of the hours worked in a pay period. This percentage is derived from the statutory entitlement of 5.6 weeks' holiday divided by the remaining weeks in the year (46.4 weeks).

However, if an employer offers more than the statutory 5.6 weeks, this percentage will be higher, and employers must calculate the correct percentage based on the total holiday entitlement given. Employers must ensure that rolled-up holiday pay is itemised separately on the payslip to maintain transparency.

It is advisable to include a clause in employment contracts stating that the rollover of holidays is generally discouraged. This reinforces the expectation that employees should take their allocated leave within the designated year, ensuring clarity and compliance.

Generally, employees must take their holiday within the current holiday year. Employers are required to facilitate and encourage employees to take their entitled leave throughout the year. This approach supports employee well-being and aligns with legal obligations.

Employers are legally obligated to promote the utilisation of annual leave within the applicable year. This can be achieved by sending regular reminders, such as quarterly notifications, to employees about their remaining leave entitlements and the importance of taking time off.

Holiday can be carried over if an employee was prevented from taking it due to sickness absence or family leave (such as maternity leave). In such cases, unused leave can be carried over into the next holiday year.

If an employee fails to take their entitled holiday and the employer hasn't actively encouraged or reminded them, the employee may have the right to claim backdated holiday pay. This underscores the importance of employers proactively promoting the use of annual leave.

No, paying a lump sum for unused holiday at the end of the holiday year is not allowed for employees. However, accrued holiday pay can be paid in a lump sum upon termination if the employee leaves part way through the year and has not taken all their accrued holiday, as they are entitled to receive payment for the remaining balance.

Unfair dismissal occurs when an employer terminates an employee's contract without a fair reason or without following the correct process. Under the Employment Rights Act 1996, employees with at least two years of continuous service have the right not to be unfairly dismissed. Even with a potentially fair reason, employers must follow a fair procedure and act reasonably throughout the dismissal process. Failure to do so can result in a claim for unfair dismissal.

Fair reasons for dismissal:

• Conduct: Inappropriate behaviour or actions by the employee.
• Capability or qualifications: The employee's ability to perform the job or possess the necessary qualifications.
• Redundancy: The role is no longer required.
• Statutory illegality: Continued employment would breach a legal statute.
• Some Other Substantial Reason (SOSR): Any other significant reason that justifies dismissal.

Read our tips on minimising employee dismissal claims here.

Constructive dismissal occurs when an employee resigns due to the employer's conduct, which they feel has fundamentally breached the employment contract. This breach must be significant enough that it entitles the employee to consider themselves dismissed.

The employee must resign promptly in response to the breach and should clearly state that they consider the resignation a result of the employer's fundamental breach. Delaying resignation or continuing to work under the new conditions may be interpreted as acceptance of the breach.

Examples of employer conduct that could lead to Constructive Dismissal include:

• Unilaterally changing significant terms of employment, such as reducing pay or altering job duties without consent.
• Failing to address workplace harassment or creating a hostile work environment.
• Demoting the employee without justification.

Read our tips on minimising employee dismissal claims here

Wrongful dismissal refers to a breach of the employment contract by the employer, typically involving the termination of an employee without the required notice period or without following the contractual dismissal procedures. Key points that employers should consider include:

• Notice period: Employers are generally required to provide notice as stipulated in the employment contract or, at a minimum, the statutory notice period. Failure to do so constitutes wrongful dismissal.
• Contractual procedures: If the employment contract outlines specific procedures for dismissal (e.g. disciplinary processes), failure to adhere to these can lead to a wrongful dismissal claim.

Employees who succeed in wrongful dismissal claims are entitled to damages equivalent to the pay and benefits they would have received during the notice period.

Read our tips on minimising employee dismissal claims here

It is essential to understand the right steps to take when managing employee conduct. This includes addressing issues like misconduct or inappropriate behaviour promptly and effectively to minimise potential legal risks. Addressing inappropriate behaviour swiftly, including issuing warnings where necessary, is not only a matter of compliance but also critical to maintaining a positive workplace culture.

Read our full Employer FAQ on this topic here for the detailed advice on:

• When a warning should be issued including verbal (first) and written warnings
• Best practices for issuing warnings
• Following the ACAS code when issuing warnings

Accessing employee emails can be a complex matter for employers. Ensuring compliance with UK law while maintaining transparency and respect for employee privacy is vital. For our full breakdown of the legal framework for email monitoring; accessing emails during employee absence; examples of when email access might be neccessary; and best practices for employers on this topic, please click here.

More often than not, resignations must be given in writing, however, many organisations accept verbal resignations. If you receive a verbal resignation in the heat of the moment, please read our detailed advice on best practices when responding, including a potential cooling off period.Click here for our page on verbal resignations.

Please note, our advice on this topic is generic and every employer will face a unique situation when it comes to verbal resignations, so before acting in haste, please seek bespoke HR / legal guidance as appropriate.