IGA News

Human Resources Q&A - August 2019

Human Resources Q&A - August 2019

31 July 2019

HR support is included as part of your IGA membership. As well as guidance from the member helpline team, and legal team if needed, a comprehensive library of HR documents can be found in the IGA Members Area. This includes example contracts, work policies, disciplinary procedures and letters, terms and conditions, job specifications and more.

Q: How many days statutory holiday is an employee entitled to?

A: Full-time employees are entitled to 5.6 weeks’ annual leave, which may include bank and public holidays. For part-time employees this should be pro-rata.

Q: Is ‘last in, first out’ still a valid redundancy selection criterion?

A: Prior to the introduction of the Employment Equality (Age) Regulations 2006, ‘last in, first out’ (LIFO) was the most obvious objective method of selection.

However, the use of LIFO is likely to put employees in younger age groups at a particular disadvantage, as they are more likely to be the employees with the least service. This would entitle those employees to make claims for indirect age discrimination. Under the regulations, discrimination on the grounds of an individual’s age will be unlawful unless it can be objectively justified, i.e. the employer can show that it is a proportionate means of achieving a legitimate aim e.g. if it rewards experience or protects older workers from redundancy if finding a job may be much harder in the current economic climate or if it is used as one of several criteria, or to determine the outcome of a selection exercise where employees have score the same on other criteria.

Therefore, while LIFO can still be used as a criterion for selecting for redundancy, employers must be able to justify this choice objectively. Consequently, it is not advisable for an employer to use LIFO as the only criterion for selection if there are other factors that can be taken into account.

Visit the Managing and Ending Employment section in the IGA Members Area for further details.

Q: Can I still ask job applicants health-related questions?

A: The Equality Act doesn’t prevent you asking about health or sickness absence full stop. What it hinders is when you can ask that sort of question. As a general rule, you shouldn’t ask a job applicant anything about their health prior to making them an offer of employment, i.e. via a pre-employment health questionnaire.

If you do, and subsequently refuse to proceed with the application, the tribunal is automatically entitled to conclude that you’ve discriminated on the grounds of a disability, even if it wasn’t why you took that decision. It would then be for you to prove this wasn’t the case and that won’t always be easy.

However, prior to any offer of employment you can (and should) ask certain health-related questions to ensure than an applicant:

  • Can carry out a “function which is intrinsic”, i.e. integral, to the role, for example, they are able to undertake heavy lifting
  • Is able to fully participate in the selection process, I.e. are adjustments necessary during the interview so they are not placed at any disadvantage?

Once a job has been offered and accepted employers may, if they wish, ask additional medical questions (although care still needs to be taken with how that information is used).

If a condition is revealed that causes the candidate problems in performing the job, then reasonable adjustments must be considered.

If there are no reasonable adjustments, then the job offer may need to be withdrawn. There is clearly scope for claims here, so any adjustments must be very carefully considered. If none are viable the employer must have an objective business reason to withdraw the role.

For further guidance visit the Human Resources section in the IGA Members Area, or call the IGA via the direct member helpline or 0845 305 4230.