Legal tips when taking on a new member of staff

What legal procedures need to be followed when taking on a new member of staff?

Farmers Weekly asked Jeanette Wheeler, partner and employment law specialist with Birketts, to go through the basics.

Do I need to provide a written contract?

As a minimum, within two months of starting work, employees need to be given a written statement which sets out the key terms of their employment. This statement, which can be in the form of a letter, should include:

• The employer’s name (business name).
• The employee’s name, job title or a description of work and start date.
• How much and how often an employee will be paid (including the rate of pay and how it is calculated, and details of any sick pay).
• The hours of work (and if employees are expected to work overtime and at weekends).
• Annual holiday entitlement (and if that includes public holidays).
• The location where an employee will be working.
• Applicable notice periods (even if these are the statutory notice periods) or end of fixed term period if the work is temporary.

See also: Farm manager salaries stagnate but value of benefits rises

However, there are huge benefits to issuing a more formal contract as you can build in greater flexibility and protections as an employer.

For example, in the absence of a contract which sets out, for example, a longer notice period, an employee can leave with just one week’s notice – even if they have worked on the farm for years.

In the first month of employment they can simply choose not to return the next day. This leaves businesses vulnerable to losing an important member of staff at a critical period in the farming calendar.

Other protections that can be built into a formal contract include confidentiality clauses, to stop people sharing trade secrets or confidential  family  information, and the flexibility to change the place of work to another location.

Written contracts are also favoured by most employees as it signals to them that they are going to be working for a business with a sense of professionalism and because they are more detailed than a written statement, so the employee has a better feel for where they stand.

A probationary period may be used to review an employee’s progress and set expectations as to when progress is to be reviewed, although probationary periods themselves  have no legal status, except that an employer may choose to agree in a contract of employment to apply a shorter notice period during a probationary term.

What checks do I need to carry out before employing someone?

Employers must undertake a three-step check to confirm that an employee has the right to work in the UK under immigration laws. The fine for employing an illegal worker can be as much as £20,000.

The checks require the employer to obtain original copies of one of the documents detailed on the Home Office’s Right to Work checklist – which for UK citizens and members of the European Economic Area (EEA) includes a passport, and for other nationals can be a residence permit.

It is the employer’s responsibility to check the documents are original and valid and to securely retain a copy, noting the date on which the check was made.

Should I check other documents?

Yes. Check for any licences or qualifications that the employee claims to hold or that may be required to do a particular job, for example a driving licence, an HGV licence or safe use of pesticides (PA) certificates.

Make sure these are valid and in date where applicable, take copies, note the date on which the check was made. Check these documents periodically to make sure they remain valid.

Should I seek references?

It is always worth trying to get a reference for a potential new employee, but the information you get from a previous employer may be very limited.

It is now policy for many employers not to confirm anything beyond the job role and the dates of employment.

This is because of the dangers of providing additional information which could be seen as unfair or misleading, which could open up that business to the risk of a defamation or discrimination claim.

Do I need to offer an induction?

A good induction is essential to make sure new employees know the procedures they are expected to follow.

Health and safety needs to be a priority, with appropriate guidance and training given for each task the employee will be asked to do.

The aim is to prevent accidents happening in the first place. But if an accident does ever occur, it’s important employers can demonstrate what steps were taken to assess the level of risk and explain the correct procedures.

Employers have a duty of care to explain health and safety protocols in a way that can be understood – including to any employees for whom English is not their first language.

Proper protective equipment also needs to be provided.

The induction is also the best time to go through other aspects of company policy, from who to call in the event of an emergency through to the rules on the use of mobile phones and social media.

What else do I need to comply with?

Employers must also ensure that they comply with the applicable National Minimum Wage (NMW) requirements and rules under the Working Time Regulations 1998 regarding working hours, rest breaks and annual leave.

Take care that where people are paid on a salaried basis, their working hours (including time on call) do not mean that their pay rate is pushed below the NMW rate.

Salaried employees are entitled to the same weekly and daily rest breaks as any other.

In addition, all employers are now required to enrol eligible jobholders (subject to minimum age and earning qualifications) into a pension scheme within six weeks and make mandatory minimum contributions into the scheme.

This is known as auto-enrolment and must be offered to eligible  jobholders who can then choose to opt out of the scheme – any opt out must be made voluntarily.

How to keep a new starter?

Recruiting someone new to a business can be challenging enough, but the real test is how to keep them.

If you want employees to be really productive and to go the extra mile then how you engage them is crucial.

Employee engagement has become a real buzzword in many other industries as part of a strategy to cut staff turnover, while at the same time increasing productivity and efficiency.

Often it’s the little perks of the job and good communication which show that you care about these people as individuals that are most effective in motivating staff.

If accommodation comes with the job, is it of a decent standard? Is it a happy place to work?

Some employers are very paternalistic and make an effort to do right by their employees and their families. Others are much less so, but as supplies of foreign labour shrink pre- and post-Brexit these employers may find they need to change their approach.