Employment law is a minefield. There is a whole host of conflicting, jargon-filled information out there that makes it even trickier to understand.
Here, childcare HR specialist Ella Halliday shares exactly what you need to do as an employer in the UK to be legally compliant. This includes everything from right-to-work checks and policies to dismissals and reference requests.
So you’ve found the perfect hire – amazing! There are a few things you need to do at this stage to get on the right track. Not having the basics in place during your onboarding process can lead to significant fines.
A contract of employment is a legally binding contract between the employer and employee. It outlines what the employee is legally entitled to. As a minimum, your contract of employment needs to cover:
Give these statements of particulars as soon as possible and no later than two months after the employee’s start of employment.
Failure to provide a contract can result in an award that is equal to two weeks’ pay at their agreed rate.
Right-to-work checks sit separately to the KCSIE or DBS requirements. They are a vital part of the recruitment process and determine a candidate’s eligibility to work in the UK.
It’s a simple process that can save you up to £60,000 per employee if you are found to have not carried out the necessary steps.
If they are a UK citizen, you will need proof of address and an ID document, such as a passport or driving licence. You need to see this in person and take a copy to place in their employee file.
If they are a non-UK national, follow the gov.uk guidance on checking their right-to-work documents. Make sure to complete all right-to-work checks before they join your setting.
Often overlooked is the requirement for a job description that is up-todate and gives the employee an understanding of their role and responsibilities. Again, you should give this within two months of them starting.
A job description not only helps your employee understand what you expect of them but also helps you if there are any concerns about the employee’s performance and will support your assessment of their probationary period.
Under the KCSIE guidelines, you are required to ensure that all employees are safe to work with children. During the recruitment process this includes:
This list isn’t exhaustive; for further guidance on KCSIE and Safer Recruitment guidelines, you should access the latest version on the Gov.uk website.
Your setting may have multiple mandatory policies for things such as safeguarding and whistleblowing, but here are the policies required from an employment perspective:
Each of these sets out the way that the employer will handle and process such matters and what you expect of an employee under each.
Some employers decide to issue all employees with an employee handbook that collects all policies and procedures in one place, along with other expectations, but this isn’t compulsory.
Whatever your approach, be sure to regularly review and update the documents in line with changes in employment law and issue the newest version to all employees.
You must pay all employees at least the National Minimum Wage or National Living Wage, dependent upon their age or qualification status.
All employees are entitled to 5.6 weeks of annual leave per year (including bank holidays). For a full-time worker, working five days per week, this translates to 28 days per annum. You pro-rata this for part-time staff.
If you have term-time-only or irregular-hours workers, new legislation came into force in April 2024 that allows you to pay a percentage of annual leave on the hours worked in that pay period; however, there are conditions on when this can be applied.
Be sure to check out Gov.uk to find out more or use their helpful annual leave calculator to make sure you are paying the right amount.
Under the working time regulations 1998, employees must not work more than 48 hours per week, which is averaged over 17 weeks.
An employee can opt out of the working time regulations, but this must be voluntary and the employer cannot mandate it. In addition, the following rules apply:
Please visit ACAS or Gov.uk for further information.
It’s a myth that you cannot give a bad reference. A reference must be factual and cannot be given in bad faith, but you can inform a new employer if an employee was dismissed due to high levels of sickness absence or for gross misconduct, etc.
You are not legally allowed to embellish this information or provide anything that cannot be evidenced as relevant to their job role.
If you are considering dismissing an employee, you should always seek advice on the fairest and legal way to do so. Compensation may be owed to those being dismissed on the grounds of redundancy, and you can find out how much they may be entitled to, including statutory notice periods, from Gov.uk.
If you are dismissing an employee due to gross misconduct, you may be able to dismiss without needing to pay a notice period, although certain situations may change this.
In all other cases, such as probation, poor performance or sickness absence, statutory notice will likely be owed to the employee.
How much should be paid is based on their length of service or their contract of employment, whichever is greater.
Always ensure you follow your policies to protect yourself from any unfair dismissal claims or claims of discrimination. Additional protections apply to those pregnant or on, or recently returned from, maternity leave.
Ella Halliday is the founder and managing director of Childcare HR, a specialised HR consultancy for early years businesses across the UK. It aims to provide cost-effective and pragmatic advice to the early years sector via a range of services, from pay as you go through to fixed monthly support packages.
