Employment law frequently asked questions

• Are restrictive covenants worth the paper they’re written on?

  Yes, as long as they are properly drafted and go no further than is necessary to protect the company's legitimate business interests. Restrictive covenants must be reasonable in duration and geographic scope in order to be enforceable, therefore proper drafting is key. There are other important factors to consider when drafting restrictions, so it is important employers take advice in relation to any protection their company needs.

• I want to change my staff working hours from 9.00am – 5.00pm to 8.00am – 4.00pm. Can I do this?

  Changing an employee's contract of employment without their agreement, and without following a proper process, can be risky and could leave you exposed to a breach of contract claim. Before making changes, employers should consult with employees and explain and discuss the reasons for the change. Any agreed variations should be recorded in writing.

• I have three people doing the same role and I need to make one of them redundant. Do I need to keep the two people who have been here the longest?

  No. The purpose of a fair redundancy process is to choose the best person or people for the remaining roles. Where employees are all doing the same role they should be pooled together and a fair selection process should be applied. Employers should ensure they apply fair and objective selection criteria. Before employers make a decision that a role is redundant (and before they can go through any selection process) they should first have a robust business case setting out the rationale for the proposed redundancy. If selection is then necessary, it should be made clear to employees what selection criteria is going to be used and why, and should be given the opportunity to challenge their scoring as part of the process.

• One of my longstanding employees is underperforming – can I let them go now as long as I pay them notice pay?

  Where an employee has over two years’ service, dismissing someone without first following a proper process and giving them the opportunity to show improvement will most likely result in the dismissal being unfair. As in cases of misconduct, employers should always follow a fair procedure before considering dismissal; in most cases of underperformance employers will need to show they have issued the employee with a series of warnings before they can justify ending the employment relationship. As part of this process it is vital that employers have given the employee the chance to improve by setting clear targets and objectives before taking formal action and not just proceeding straight to a dismissal.

• An employee has gone off sick the day before they were due to attend a disciplinary hearing. Do I have to wait until they return to continue the process?

  No. If it were true then employees could delay disciplinary processes indefinitely by staying off sick for weeks or even months. Unless an employee has a fit note stating they are too ill to attend a workplace meeting, there is nothing wrong with asking them to attend. Other alternatives should however be offered, for example, it is sensible in some cases to offer to hold the meeting at the employee's home, at a neutral venue, or virtually over video instead of in person. Employees should be advised that should they fail to attend without good cause, the hearing may go ahead in their absence and a decision made without their input.