Q&A

Area Manager

Frome, Somerset – Berkley, South Gloucestershire

Full Time Permanent

 

Capstone Foster Care is a well-established fostering organisation that work hard to maintain the family feel of each office so that we can provide a personal and friendly service to all our carers. Our vision is to make a difference to the lives of disadvantaged children and young people, supporting carers to do an important job well. Operating from 16 offices across the UK we have grown through recruiting people who share our vision.

We are looking for an Area Manager to manage, motivate, supervise and support the work of an area’s Supervising Social Workers to achieve key targets within the area business plan. You will develop and maintain good relations with local authorities within the area to increase placements and business opportunities and further the reputation of Capstone Foster Care. Ensuring that carers are informed of, and fully comply with all standards, policies and guidance, including safe caring guidelines agreed by Capstone Foster Care.

Applicants will have an upto date knowledge of the Children’s Act 1989 and an operational knowledge of the National Minimum Standards for Fostering Services; Fostering Services Regulations 2011, The Care Standards Act 2000 and any other legislation relevant to the needs of looked after children, care leavers and foster carers.

Applicants will hold a Social Work Degree/ Dip SW or equivalent and have HCPC registration.  Two years management experience is essential, ideally alongside a background in fostering related social work and/or children’s social work. Experience of assessing potential foster carers is essential. You will hold a full current drivers license and understand the need to at times work unsociable hours when on duty and as needed for care supervision and other placement related needs. The successful candidate will have the opportunity to be an integral part of developing Capstone Foster Care further still, working with senior management on an agreed annual business plan. Managing appropriate budgets to exceed agreed performance targets.

Safeguarding and promoting the welfare of children and young people is enshrined within Capstone Foster Care’s policy and practice. We expect our employees to share this commitment with us.

To apply, please send your covering letter and cv to capstonerecruitment@handoverhr.co.uk or visit www.capstonefostercare.co.uk and apply directly.

 

Can an employer withdraw a termination notice issued by mistake?

In CF Capital plc v Willoughby, the Court of Appeal considered the issue of whether an employer could retract a notice of termination issued as a result of a misunderstanding and decided that it could not. This case confirms that an employer’s unambiguous notice of termination can rarely be withdrawn and highlights the serious consequences for employers of proceeding on the basis of a misunderstanding with employees.

We have an employee who has just been sent to prison, what do we do?

The fact that your employee has been sent to prison does not mean he isn’t still your employee. You will have to terminate the employment should you wish. You would be able to justify this on the basis that you need the work done and the employee is not available. Technically this would be a dismissal for ‘some other substantial reason’.  An alternative may be to look at frustration of contract.  The law could the employment contract as “frustrated”; by the event of the employee’s imprisonment meaning he is unable to carry out his contractual duties. This is not considered a “dismissal” in law, and therefore the employee is prevented from bringing a claim of unfair dismissal.

One of my employees has requested to take on a second job and I think that in doing both jobs they are likely to exceed working 48 hours per week.  Do I have to get them to sign an opt out form?

You would be responsible for getting an opt out form signed.  All employers are responsible for ensuring compliance with the Working Time Regulations even if part of the work that is being undertaken is being done for another employer.  The Working Time Regulations are essentially health and safety provisions and therefore there is an overriding obligation on you to ensure the safety and wellbeing of your employees.

One of my employees has requested to take on a second job and I think that in doing both jobs they are likely to exceed working 48 hours per week.  Do I have to get them to sign an opt out form?

You would be responsible for getting an opt out form signed.  All employers are responsible for ensuring compliance with the Working Time Regulations even if part of the work that is being undertaken is being done for another employer.  The Working Time Regulations are essentially health and safety provisions and therefore there is an overriding obligation on you to ensure the safety and wellbeing of your employees.

I have an employee who has been sick for over one month now, how long do I need to keep paying them?

The law requires you to pay the employee Statutory Sick Pay (SSP) for 28 weeks, providing they meet the qualifying criteria, but this is the minimum you need to do. You should check your contract of employment to see what that says you will pay an employee when they are off sick and if that period is exhausted I would let them know that their pay will reduce to SSP in their next salary payment. Incidentally, given the length of the absence, you should also check your policy on seeking medical advice about if and when they may be able fit to return to work.

Q: I am reviewing my contract of employment and considering introducing a non-solicitation clause for senior employees, are they legal?

A: Generally speaking, restrictive covenants are enforceable provided they are reasonable.  If they are not reasonable then a Court is likely to hold that they are invalid as being in restraint of trade.  If an employer does not have legitimate interests that it needs to protect from an employee, then it is not going to be able to enforce restrictive covenants against them.  If it does have such interests, then any restrictive covenant it imposes must not be more than is adequate to protect those interests in the circumstances.  The key is to keep the clause specific and designed to protect the Company, rather than penalise the employee.

Q: When a woman goes into labour but does not have the baby until the following day can we insist that her husband takes the time as annual leave for the day she was in labour rather than paternity leave as he has suggested?

A: Paternity leave may only be taken during the period which begins with the date on which the child is born and ends 56 days later.  It is not possible to take paternity leave before the child is born, so in your situation I suggest he either agrees to holiday or takes it as unpaid leave if you don’t just want to give him an extra day off.

Q: I have dismissed an employee and then paid him in lieu of his notice (PILON), but he says I also have to pay him his bonus, that would have fallen due during his notice period.  Do I have to pay it?

A: An employer has no right to summarily terminate the employment by making a payment in lieu of notice unless that right is expressly set out in the contract.  The wording of this clause will be central to answering your question.  You will need to check if you have a PILON clause and its wording.  Does it say you only have to pay his salary, or is it not that explicit?  Does your contract say that the bonus is only payable to people who are employed on a set date?  As you can see there are a number of points to explore but fundamentally the answer to your questions will be found in your employment contract.

Q. I’ve just discovered, to my absolute horror, that I’ve been overpaying an employee. What’s the legal position? Can I get my money back from him?

A. You don’t say but I am presuming you are still employing the person, if so the first and most obvious avenue to consider is recovering those overpayments from their earnings. Making deductions from wages is often forbidden under the Employment Rights Act 1996, but deductions to recoup an overpayment are happily excluded from that prohibition. However, you need to consider that the employee could still argue that you cannot recover the overpayments from their wages if they were led to believe by you that they were entitled to the extra cash, or they have ‘in good faith’ spent it or the overpayment was not primarily their fault. As a starting point go and talk to the person, explain what has happened and that you would like to agree how they are to pay the money back. Ideally this should be detailed in a repayment schedule which you both sign. Finally I recommend that you make enquiries and take appropriate action to avoid an overpayment happening again.

Q. Help, I am panicking! I was planning to retire one of my employees next week, but heard on the news this is will be illegal. Is that right?

A. The Government have confirmed the default retirement age of 65 is being scrapped, but not until 1st October. You can still notify an employee that they are being served with 6 months’ notice of retirement until 6th April 2011, so you can meet with your employee next week.

Q. Do I have to give my employees an additional day’s leave in light of the Royal Wedding on 29th April?

A. Holiday entitlement in the UK is regulated by the Working Time Regulations 1998 which entitles all workers to 5.6 weeks of paid annual leave, capped at a maximum of 28 days. However, leave entitlement under the Regulations is not in addition to public holidays.

There is no statutory right to take public holidays and whether or not a worker is entitled to be off work on a public holiday is a matter determined by the contract between the employer and the worker. If the contract entitles the worker to x days’ holiday inclusive of bank and public holidays, then the additional public holiday will have no effect on the overall contractual entitlement. If the contract entitles the worker to ‘x day’s holiday plus bank and public holidays’, they will be contractually entitled to the additional day.

Employers need to consider what actions they have taken in the past with regards to extra public holidays and make sure they are consistent and fair in their approach, critically they should plan and communicate in good time, particularly bearing in mind that there may also be an additional public holiday in 2012 for the Queens Golden Jubilee.

 

 

Question:

Do I have to give my employees an additional day’s leave next year in light of the royal wedding on 29th April?

Answer:

Holiday entitlement in the UK is regulated by the Working Time Regulations 1998 which entitles all workers to 5.6 weeks of paid annual leave, capped at a maximum of 28 days. However, leave entitlement under the Regulations is not in addition to public holidays. There is no statutory right to take public holidays and whether or not a worker is entitled to be off work on a public holiday is a matter determined by the contract between the employer and the worker. If the contract entitles the worker to x days’ holiday inclusive of bank and public holidays, then the additional public holiday will have no effect on the overall contractual entitlement. If the contract entitles the worker to ‘x day’s holiday plus bank and public holidays’, they will be contractually entitled to the additional day.

Employers need to consider what actions they have taken in the past with regards to extra public holidays and make sure they are consistent and fair in their approach, critically they should plan and communicate in good time, particularly bearing in mind that there may also be an additional public holiday in 2012 for the Queens Golden Jubilee.

Q. We gave an employee additional responsibilities with the understanding that if successful at the end of a performance review process there would be a backdated pay rise. However, half way through the process they have resigned, they are working their notice and are still undertaking the extra responsibilities; but now they are leaving I don’t really want to pay them any extra. Am I obliged to honour this agreement?

A. Any contractual terms should be honoured; however in this instance the employee has resigned and will not be able to complete the review period, therefore you would not be obliged to pay the additional monies. In addition your enquiry refers to an “understanding” , if this was a verbal agreement, and is not documented, the employee may struggle to enforce what they believe their rights are, ie to pursue a claim for breach of contract. Going forward if you undertake this type of approach again I suggest you set out conditions at the onset in writing and ensure employees are told that no backdated pay increase would be processed if they resign during the review period.

Q. I have two employees who are in their probationary period and are not shaping up. They have been spoken to and one has not changed his attitude at all. Do I have to follow the same disciplinary procedure for dismissing them as permanent employees?

A. Whilst the disciplinary procedure would generally be your first approach for non performing employees, in this instance, the commercial risk is minimal. As you have met with them previously to discuss their performance, I would suggest you meet with them again and inform them that they have still not met your expected standards and have not successfully completed their probation period.

You would be required to give them notice in accordance with their terms and conditions. NB – employees with under a year’s service are not protected against unfair dismissal but can bring claims for discrimination or for asserting their statutory rights and you should ensure that the non performance is not linked in any way. Finally it would be worth looking at your recruitment process to see if you can avoid making the same recruitment mistake again.

Q. We have an employee whose baby is due on the 29 October, but has 19 days of holiday left to take. She would like to take all of it before she goes on maternity leave, but wants to keep working for as long as she can. She would like to go on leave mid October. Is this OK?

A. Employees can choose to start maternity leave on any day, provided that it is not before the beginning of the 11th week before the expected week of childbirth. Maternity leave starts on the earliest of the employee’s chosen start date; the day after a pregnancy-related absence during the four weeks before the expected week of childbirth or the day after childbirth. In your scenario if the employee was still on holiday when her baby was born, her maternity leave would start on the day after childbirth.

This would mean that the employee would have some outstanding holiday still to take. There is nothing to prevent you allowing the employee extra leave, on her return from maternity leave, to make up for any leave that she had been unable to take before her maternity leave began. Alternatively, she could go on holiday earlier than currently proposed so that she uses up her holiday before her maternity leave begins or her baby is born.

Q. If an employee is struggling, can we demote rather than dismiss, and should we give them notice? We have an employee who is on a final warning relating to their capability. A further incident has arisen, also linked to their capability, but the next step would have be to dismiss them. I would like to give the person one final opportunity to work it out and believe that we may have promoted them beyond their capability. Instead of dismissing, can I demote them and do I have to give them notice?

A. The ACAS Code of Practice refers to actions such as demotion as a sanction short of dismissal. With capability issues it is vital you follow your disciplinary policy, explain the issues you have with the person and give them time to improve. Assuming you have completed this, It is certainly an option to consider demoting the person. Unless their contract of employment specifies a notice period for implementing such an action, it is fine to just do it with immediate effect following the final disciplinary hearing.

If the employee has an issue with the demotion they can appeal, but effectively in doing so would be opting for dismissal instead of demotion.

Q. An employee has resigned giving us three months notice. We prefer he leaves in 4 weeks as he is starting up a business in competition. Can we respond to his resignation letter stating that we do not require him to work 3 months, and that he will finish in 4 weeks time? His contract states that he only has to give 4 week’s notice.

A. Although you say that his contract states he only has to give four weeks’ notice, that doesn’t seem sufficient to prevent him giving longer notice.  In other words a requirement that to resign you have to give 4 weeks notice is not the same as saying you can only give four weeks’ notice.  I can, however, see the problem.  There are really three ways to deal with this.

First, require him to be employed for the notice period but put him on ‘garden leave’ this will ensure that he cannot do any work for anyone else during that period, offer some protection to the business in terms of access to information and you can also make him take any accrued holiday during this period so that will reduce any final payment.

Second, you could pay him in lieu of the notice period he has given, although in this instance holiday accrued would need to be paid.

Third, persuade him to leave at the end of four weeks with no further payment although this maybe the most difficult to achieve.

My view would be it’s best to get him out of the business as quickly as possible reducing his opportunity to spend any time preparing to compete with you. Also check your employment contract to see if you have any restrictive covenants which will prevent him from approaching your other employees, or existing customers etc. If you do, point them out to him and explain that you will enforce them.

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