Recruiting and Appraising

Whether you record your year from January to December of April to March I am sure you will agree that this quarter has zoomed by.

Now that the Big Freeze has left us we are all looking forward to Spring. April can be a busy yet exciting time for business. For many it is the beginning of the financial year often meaning a fresh look at recruitment, marketing, budgeting and planning.

If you are recruiting you should be mindful about the wording you use for your advertisements. Employers can be liable for discrimination before a person has even worked for you so it important not to use unnecessary descriptions that imply you are looking for a man, woman or a person of a particular age.

Your job advertisement is just like any other marketing material. It should speak directly to the type of person you are trying to recruit.

If you are a fun and flexible business the language which you use should ooze fun. If you are a traditional business which is looking for corporate applicants then the wording you use should be reflective of that.

A diverse workforce is a strong workforce. Not only should be seeking not to discriminate against applicants of various ages, cultures and gender but we should also be seeking to employ people with disabilities.

Craft your recruitment process in a way that is disability friendly. It is perfectly acceptable to state that you are a disability aware employer and that you are seeking to employ someone from all backgrounds.

April is Autism Awareness month. Job candidates with autism do not always thrive in a traditional interview but they may be the best person for the job. People with autism often have a great ability to focus on a task, recall data and pay attention to some of the smaller details.

One of the ways which you can make your recruitment process inclusive is to have a working interview. Invite all candidates to work with you for an hour or two and see how they perform in action.  You could also use specific questions rather than general questions on an application form so that a person who is autistic will find it easier to answer correctly.

Whilst it is great to recruit it is also important to nurture your existing staff. If you are not doing appraisals, you may want to reconsider. Appraisals can help you to find out any ambitions that your staff may have. Once you know that an employee would like to become a supervisor, a manager or to broaden their skill set you can create a path to help them reach that destination within your business.

Lots of businesses lose talent because it has not been nurtured or appreciated and this can be both a financial cost and loss of skill to an employer. Use appraisals to tell your staff what they are doing well and how they can improve.

If you have concerns about a team members, work, performance of attitude you can also use this opportunity to document and discuss your concerns. Early intervention can reduce problems with staff later in the year.

An appraisal should be a two way communication tool. Create an open environment where staff can tell you about things which you could improve as an employer. This will make your working environment a better place for current and future staff.

Whether you are recruiting, or appraising April is the perfect opportunity to review your current employment contracts and employment policies. Ensure that they are still working for you and that they are still legally compliant.

If you would like HR Support or Employment Law advice please contact us at



Have you got staff who are on-call?

A recent case could have a big impact on employers who employ staff who work “on-call” and on “standby”.  Restaurants, Hotels, Care providers and Hospitals may have to revisit their policies following the case of Maztak v Nivelles Fire Service

Mr Matzak was a volunteer firefighter with the Nivelles Fire Service in Belgium, who was employed to work alongside professional, full-time firefighters to help with operations and standby services, which were arranged by rota at the beginning of each year.

All volunteer firefighters were paid an annual allowance for their standby work.

Under his contract of employment, Mr Matzak and other volunteer firefighters, as well as professional firefighters, were required to adhere to specific residence requirements, including: –

  1. To be domiciled or reside in a place so as not to exceed a maximum of eight minutes to reach the Nivelles fire station when traffic is running normally and complying with the Highway Code;
  2. During periods of standby duty, every member of the volunteer fire service serving at the Nivelles fire station must: –


  • Remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of eight minutes;
  • Be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on standby duty are called.

Mr Matzak brought judicial proceedings against Nivelles Fire Service in December 2009, after his one-year probation period ended. The details of the proceedings were that his employer had refused to pay for his “stand-by” hours.

He also claimed that his employers had failed to pay acceptable compensation for his services as a volunteer firefighter, and, in particular, that his standby services should be classed as working time.

Although the Nivelles Labour Court upheld Mr Matzak’s case in March 2012, the Nivelles town appealed the ruling at the Brussels Higher Labour Court.

The Higher Labour Court partially upheld the appeal in September 2015, because under Belgium law “volunteers in the public fire services and the rescue zones as provided for in the law […] on civil security and volunteers in operational civil protection units do not fall under the definition of workers”.

After this ruling was made, the court was asked to determine the correct definitions of working time, in order to decide whether or not Mr Matzak’s standby services should be classed as working time or not.

All European countries must follow the Working Time Directive. The Working Time Directive provides minimum health and safety requirements for working time, including daily and weekly rest periods and annual leave.

“Working time” is referred to as “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. “Rest period” is referred to as “any period not classed as working time”.

The court was asked to consider whether or not volunteers should be classed as workers and therefore included in the regulations under the Working Time Directive.

They were also asked to consider whether or not Mr Matzak’s standby work should be considered as working time under the Directive, despite him being at home whilst on-call “given the constraints on the worker at the time preventing him from undertaking other activities”.

The court found that Mr Matzak was indeed a worker, even though he held a voluntary position.

The court also found that if the standby period was excluded from the concept of working time, this would have a serious impact on the objective of ensuring the health and safety of the workers by granting them satisfactory breaks and rest periods.

The ruling will mean that there is more than likely going to be a huge deviation in legislation because staff who work “on-call” and “standby shifts” at home will be counted as “working time”.

This will have wide-ranging implications upon any employers who need their employees to keep to specific criteria regarding their working hours but which restricts their movements during their free time. 

All employers who have staff working on-call need to carefully consider whether or not they need to place significant restrictions on their employees’ activities when they are on-call.

It may mean that employees are working more than 48 hours each week. It could also have pay implications.

If you would like any further information or advice on this matter, please call us on 01634 564 136 or email us at

Do you need to give an extra day as holiday this Easter?

You were probably as shocked as me to see that UK shops started selling Easter eggs on Boxing day and whilst I refused to buy Easter eggs before valentine’s day it makes sense for business to prepare ahead of time.

This year the Easter holiday is early with Good Friday being on 30th March. This may have a  direct impact on businesses whose holiday year runs from April to March in line with the tax year.

This is because the early arrival of Good Friday means that there are 9 bank holidays in this financial year instead of the usual 8. The impact will depend on the wording of the employment contract.

If an employment contract states that an employee is entitled to 20 days leave plus bank holidays they will have an extra days holiday this year. I am sure no staff will complain about that. However if your contracts state that employees are entitled to 28 days annual leave inclusive of bank holidays there will be no changes.

That being said employers may want to remember the following things about bank holidays.


  1. There is no legal right for employees to have bank holidays off.
  2. There is no legal right to be paid time and a half, double time or any extra pay for working on a bank holiday.
  3. Employers can impose annual leave on staff if they have a shut down period on bank holidays.


Of course these things are all subject to previous conduct and what is written in the Employment Contract.


If you would like help with Employment Contract, managing staff, HR or any Employment Law matters contact us via our website at


In the meantime, start stocking up on Chocolate and get ready to have a Happy Easter.



Moving Forwards

So, Christmas is over and we’re into the New Year already.

You may well be thinking that you need to move your business forward in 2018 but you have no idea how to do that.

This can be a tricky subject, and one that many businesses keep putting off simply because they don’t know what else to do. Muddling along as you’ve always done, however, is not good practice, especially if what you’ve been doing in the past hasn’t really worked properly.

Now is the time to start implementing new ways of working and making progress so that 2018 is as successful for you, and your staff and customers, than ever before.

Here at Orchard Employment Law, we have a few hints and tips on what to do to make your business more successful this year and into the coming years.

  • Keep up with your competitors

First up, you need to keep up to date with what your competitors are doing. Find out what they are offering to their customers and see if you can offer something similar to that. Obviously, you will want to make your products and/or services unique but by knowing what else is on offer to your customers means that you are ahead of the game.

  • Reach out to your clients

In keeping with the above, talk to your clients about their needs and requirements. You may very well be surprised at what they say. They might tell you that they need something that you’ve been considering and working on but haven’t launched yet as you felt that the market for it wasn’t right.

  • Don’t get comfortable

All businesses will do this at some point. They will start thinking that everything is going exactly as it should be and that there is nothing that needs to be done to improve and progress. Do not think like this. Getting comfortable will be your downfall. There are always things that can be done to improve and progress your business.

  • Take action

Don’t get comfy but take action instead. Stop procrastinating and get moving. Make those tough decisions. Sitting on your hands and burying your head in the sand will not solve any problems, so head them face on instead.

  • Talk with your staff

As well as talking with your clients, talk with your staff as well. Listen to their ideas and suggestions. See what they think is going right and what (and how) they think things can be improved. This will give them confidence and make them feel that they are valued. Which will lead to better motivation and more productivity.

  • Monitor progress

Here, we don’t just mean monitoring progress with sales etc, but encourage your staff to monitor their own progress and keep a track of their own successes. Have targets, not just for your staff but for yourself and the future of your business, and monitor how and what you and your staff are doing to reach those targets.

  • Have integrity and trustworthiness

You need to grow a reputation of trustworthiness. Your business will rely on many outside factors during its lifetime and by cooperating with others and proving that you are trustworthy will go a long way to being successful. Don’t promise what you can’t deliver, don’t ask for something from someone else that you wouldn’t be prepared to give yourself.

Above all else, show that you have integrity and that you can be trusted.

Getting to know Lucy

As many of you will know, Orchard Employment Law was started just over two years ago by founder Jemma Fairclough-Haynes. Jemma’s aim is to support employers throughout the lifecycle of an employee, to promote employee engagement and to minimise the risk of litigation.

Jemma has recently been joined at Orchard Employment Law by Lucy Torble. Lucy joined us on 5th December, as Personal Assistant to Jemma.

Lucy’s Work Experience

I have many years experience within the legal profession, starting over fifteen years ago as a Re-Mortgage Case Handler at a busy law firm in Canterbury. I then moved on to be a Conveyancing Assistant at another law firm in Canterbury, where I assisted the Conveyancing Solicitors with all aspects of buying and selling property.

From there, I moved into Private Client work (this includes Wills, Probate and Court of Protection matters) as a Legal Secretary. After four years here, I then moved to Broadstairs as a Conveyancing Paralegal, and then to Faversham as a Conveyancing Executive.

I then left the legal profession for around ten months to have my son Ethan, returning to work in May 2016 as a Private Client Paralegal on a part-time, temporary basis.

After this contract finished, I decided that I wanted to spend all of my time with my son and so left the legal profession completely. My husband runs his own content marketing and social media strategy business and I assisted him with various different aspects of this during my time off.

Our son is now attending nursery a couple of days a week and I felt that the time was right to venture back into the legal profession and start to re-discover myself (and not just being Ethan’s Mummy and Richard’s wife!) and my love of law.

About Lucy

I love being able to help people and my knowledge of law and legal practices enables me to assist individuals and businesses with many different aspects of UK legal matters.

I love being pampered, and would quite happily spend an entire day, if not longer, at a spa! I also enjoy reading, which, admittedly, is difficult with a toddler but I do try. And what girl doesn’t like shopping?

I have a small addiction to tea, but it has to be made just the way I like it – strong with just a dash of milk. My husband still hasn’t got this right. And what better way to enjoy a cuppa than with a few biccies dunked in.

I hate most forms of exercise, but I have recently discovered a self-defence system called Krav Maga. It is a brilliantly effective self-defence class which is specific to modern day threatening situations. It is a simple method and so much fun.

I am very excited to be working with Jemma and I look forward to helping to grow the business further with her.

Please feel free to email me at

Winter Blues and Don’ts

5 Tools to take your staff to the end of the year.


This autumn and winter you can keep your staff productive your and business running by following these steps.



Coughs and colds are an inevitability this time of year and this can mean that businesses experience higher absence levels than normal. November is the perfect time to promote good hygiene in the workplace. You can do this by providing telephone wipes, keyboard wipes, sanitsers and sweet smelling soaps. This will help to reduce germs spreading and keep staff healthier for longer.

Now is the perfect time to review your sickness policy and remind employees who, how and when they should contact work. If you would like some help reviewing your existing sickness policies and procedure please fill in the contact form at


Adverse Weather

Fallen trees, ice, frost and snow can cause havoc on public transport and our UK roads. You may find that staff are late to work or unable to come to work because of the winter weather. There is no obligation to pay staff who are not able to attend work but you may want to put things in place to allow your staff to maintain pay and for your business to continue to function. Consider allowing staff to arrive at work later, work from home or make up their hours on another occasion. If you do decide to pay staff who cannot attend work ensure that they are told that it is an act of goodwill and is not intended to be contractual.

Black Friday

Black Friday sales in the UK are becoming increasingly popular. You may find that employees attention to work and productivity levels drop as they try to find the best online bargains.

Managers are advised to ensure they have an up to date internet rules and usage policy. This policy should also be shared with staff. Whether you take a more relaxed approach to the use of computer devices or a strict approach be sure to be consistent so that you are not accused of discrimination.

Annual leave reminders

If your holiday year runs from January to December now is the perfect time to remind staff about their unused holiday allowance. You do not have to allow staff to roll holiday over into the next year unless there are exceptional circumstances such as maternity or illness.

You are also able to refuse holiday if it is not a convenient time for the business or if there are too many staff off.

That being said it is good to give staff time to rest so you should be reasonable when in receipt of holiday requests.

Many employers are unaware that they can impose annual leave. So if the business has a down period or your staff have unused holidays you can simply give them a day off (with notice of course).


Christmas do’s and bonuses are a lovely way to boost morale, bring the team together and enjoy the end of the year but there are a few things that employers should bear in mind.

  • Not everyone celebrates Christmas so be mindful not to exclude or discriminate against any staff members.
  • Bonus can become contractual if they are given consistently year after year. Always remind staff that the Christmas bonus is not intended to be contractual.
  • Sometimes staff behaviour at Christmas parties is unacceptable. Remind staff that they are still expected to comply with harassment and disciplinary policies whilst they are having fun.


For HR advice or support and help with Employment Law please contact us at or email


An employers guide to surviving the summer holidays

The summer holiday period can be difficult for UK employers as you try to juggle the need to keep business functioning whist addressing the need of employees who are parents.

In this blog you will find 6 practical tips on how to manage the 6 weeks summer holidays without grinding your business to a halt.

But first here is a brief overview of your staff rights and employer rights when it comes to holidays.

All employees are entitled to paid annual leave. UK employment law states that full time employees are allowed  minimum of 28 days paid holiday and part-time employees are the equivalent leave based on the number of hours they work.

From a HR perspective annual leave is a good thing. Your staff work better when they have regular breaks and it is good for morale. Although the employment law gives employees the right to have time off work employers can refuse annual leave if it is not a convenient time. This means that you can refuse annual leave if it is a busy period within the business or if there are other staff who are away

  1. Childminder ill

Sometimes even well planned childcare arrangements fail. The babysitter becomes ill or has a family emergency and this may mean your employee is unable to come to work. HR Law allows employees to take reasonable time off to take care of dependants during emergencies. In these circumstances the leave can be unpaid or you may allow the staff member to use their annual leave.

2. Think about being flexible

Employment does not always have to be 9 – 5. Allowing flexible working during the summer holidays may help you and your staff. Consider allowing employees to work condensed hours or take annual leave by the hour rather than by the day. This allows them to spend time with their children and continue working.

3.Home working

Another way of solving staff absences during the school holidays is to allow your staff to work from home. Many employers find that employees are more productive when they work at home and this can help employees who struggle with childcare. It is not a suitable solution for all types work or industry but it is certainly worth thinking about.


Never underestimate the importance of a good handover. A well documented list of work done and duties outstanding can lessen the burden of staff holidays on employers and staff who are still at work.  Consider informing customers in advance that their contact will be away. Make sure you know where to find keys and passwords so that business can continue to run as smoothly as possible.
5.Get cover

Temporary and agency staff come at a cost but they can be a great help to the workplace when there is a staff shortage. Hiring agency workers or students during the holiday period could be the answer you have been looking for.

6.Manage the workload

It is important not to burn out staff who are left behind during the holiday season. Try not to overload one person with all of  the work. Where possible spread the workload evenly to prevent the quality of work being compromised. This will also help to reduce staff illnesses and a feeling of resentment.

For advice and support with HR and Employment Law contact Orchard Employment Law at


Holiday Pay Is Not Just About The Money

In 1926 Henry Ford introduced the 8 hour day and the 5 day working week because he realised that employees who rested were more productive. The same applies to employees and annual leave.

Some employers see holiday pay as another tax however, it is really important for employers to understand that holiday pay is not all about the money!

Holiday pay is about Health and Safety. It is there to encourage workers to take adequate rest breaks. This will in turn help your business by having healthier workers who are more productive because they are less tired and staff who make less mistakes because they are less tired.

The Law governing holiday pay in the UK is the Working Time Directive which was introduced in 1998. The Working Time Directive provides instructions and rules as to how many hours employees should work, when they should work and how much holiday they are entitled to.

Most employers now understand that full-time employees in the UK are entitled to a minimum of 28 days holiday within a year but there are still many employers that are making a BIG mistake.

That mistake is paying workers holiday pay in advance of the holiday being taken. This is prevalent with those employers who have staff on zero hour contracts. It is a practice known as ‘rolling up holiday pay’ where the worker will receive an enhanced rate of pay in lieu of holiday.

For example a worker who is over the age of 25 must receive a minimum of £7.50 per hour. A worker who is over the age of 25 receives an enhanced rate to include holiday pay will receive £8.41 per hour.

The problem with this is that the worker is less likely to take holiday because they will fear being without wages. In 2005 a Judge confirmed that this practice is unlawful and that holiday pay should be paid for  at the time when the employee actually takes holiday.

The recent case of British Gas v Lock 2016 reminded us that employers should not be doing anything which might discourage workers and employees from taking annual leave. It was also another example of how not paying holiday pay correctly can lead to a lengthy employment tribunal case.

So remember, holiday pay is not only about the money. It is a health and safety matter and it makes your workers more productive.

If you currently pay your staff an enhanced rate and you would like some assistance renegotiating the contract please contact Orchard Employment Law by visiting


There is no such thing as a probationary period

Yes you read the title correctly. There is no such thing as a probationary period in law. Most employers include a probationary period of 3 to 6 months  in employment contracts for new employees.

It is a common misconception with both employers and employees that passing a probationary period means that the employee is ‘safe’. However, the truth is that UK Employment Law has no regard or concern for the customary probationary period.


So… there are no rights for employees before 2 years?

Not quite, there are certain rights that staff receive on day one or before employment regardless of probationary periods. These include protection from discrimination, protection against poor treatment following whistleblowing and the ability to ask for a statutory right such as holiday pay, wages or asking about health and safety. These rights allow an employee to sue and employer if at any time regardless of length of service.


What is the safe period?

On balance the law provides its own ‘probationary period’ of 2 years or 103 weeks. Legal and HR professionals call this a qualifying period. In simple terms, staff with less than 2 years continuous service cannot sue their employer for things such as unfair dismissal unless it is as result of the things in the previous paragraph.

This means that employees are not safe until they have completed 103 weeks of service. It means that employers can dismiss employees that they believe to be unsatisfactory at anytime before the two years. It also means that employers do not have to wait until the end of a probationary period to decided whether or not the employee is a good fit for their business.


Should I still include probationary periods in my contract?

Yes, it is still good practice to include a probationary period in your employment contracts. This tells the new member of staff that you will be monitoring them more closely during this period. It also encourages you to give the new staff member time to find their feet before you start reprimanding them.

What choices do I have at the end of a probationary period?

In an ideal world you would have been monitoring the new member of staff before the end of the probationary period. Whether you have been monitoring the employee throughout the probation period it is a good idea to have a probationary review to assess the strengths and weaknesses of the employee and how they fit into your team.

If the staff member is great you can tell the employee that the probationary period was a success. If the employee shows promise but you are still not quite sure you can extend the probationary period. If the employee is the wrong person for the job or your team you can dismiss them with notice.

How can I get this right?

This blog is not intended to constitute legal advice. Employers and employees may have circumstances which are not explored in this article.

Of course the best way to have peace of mind that you are doing things correctly is to take advice. If you would like to find out how we can help you visit or email






5 things employers should know about bank holidays


Everyone loves a bank holiday unless you are a manager trying to work out your rights and obligations.  As we approach 4 bank holidays in April and May here is what you need to know about them.

1.There is no entitlement to have a bank holiday off work.

The law states that full time employees must be given a minimum allowance of 28 days holiday (or 5.6 weeks) each holiday year. A holiday year is determined by the employer and can start any month in the year so long as it runs for 12 months. Many employers choose January or April as the start of their holiday year but you could just as easily begin the holiday year in June. If there is no holiday year set by the employer it will be the month the employee began to work for the employer.

A contract may include bank holidays within the 28 day holiday allowance but for those that don’t those 28 days can be used at any time.

2.No entitlement to double pay, time and a half or time of in lieu.

Once again this may be different if you have stated this in the employment contract but there is no automatic right for an employee to be paid anything more than their basic salary when working a bank holiday.

3.What happens if my staff don’t work on a Monday?

It is against the law to treat part-time staff differently to full-time staff and this still applies where bank holidays are concerned. Often part-time worker do not work on a Monday or a Friday. This doesn’t mean they should get less holiday. The best way to do this is to allow part-time or non Monday staff to have a different day off so that they still get their full holiday allowance.

4.What about staff that have been off sick for a while?

Employees who have been off work due to illness for a little while should continue to be treated the same as they would be treated during a normal working day. This means that if an employee is receiving company sick pay (CSP) or statutory sick pay (SSP) they continue to do so. Employees continue to accrue holiday allowance during periods of ill health absence so they will not miss out as they can the day off at another time.

5.What about casual workers?

Casual workers also known as zero hours workers are also entitled to holiday pay. This is calculated based at 12.07% of the hours they have worked to date. The nature of casual work mean that you cannot insist they work on a bank holiday.

If you would like assistance with any Employment Law or HR issues in your business please email