Top Five Employment Law and HR Headaches

A growing workforce is usually great news for a business, however, the inevitable increased interaction with employment law and HR can leave employers feeling tied in knots.


Employment law is continually evolving, and this provides a constant challenge for business owners across the board. At Aspire HR, we work in partnership with employers and act as a direct extension of their team – meaning that we can provide the straightforward, employment advice that will take away any legal headache and allow management teams the headspace to focus on running their business.


We set out below the top five headaches faced by businesses on a day to day basis: –


  1. Intermittent sickness absence


Whilst employers understand that employees will inevitably be absent from work from time to time, in circumstances where this becomes a regular occurrence the absence can become a real problem. Not only does it often become increasingly difficult to plan workloads, but other employees can become frustrated at having to cover for their absent colleagues, especially when the absences frequently appear to tag on to the weekend.


Employers are able to deal with frequent intermittent absences by way of a capability procedure, which can result in warnings, dismissal, or changes to the role performed by the employee in order to increase attendance. Employers should also consider whether the absences could be related to an underlying disability, which if not dealt with properly could result in claims for disability discrimination.


  1. Long term sickness absence


Unfortunately, some employees find themselves in a position whereby they are too unwell to work for a significant period of time. This often leaves employers in a difficult situation, needing to plan workflows but also not knowing if and when the employee will be able to return to work.


Again, a capability process, often in conjunction with an occupational health report can be used to either obtain clarity upon the employee’s likely return date or assist the employer to move towards dismissing the employee due to ill health.

Additionally, if the employee suffers from a disability in accordance with the definition contained within the Equality Act 2010, the employer has a duty to make reasonable adjustments which will prevent the employee from suffering any substantial disadvantage as a result of the disability. These adjustments can be very wide ranging – from changing roles or working hours to installing new facilities such as soundproof dividing.


  1. Performance Management


Every business has employees who are performing below par, however, not all employers take steps to deal with this until the situation becomes untenable.


A formal performance management process can be used to set clear goals for the employee, who will then be held accountable should the goals not be achieved within a reasonable review period. This can result in the employee being issued with a first written warning, followed by a final warning, and ultimately dismissal if improvement is not seen.

This process can take a little time to complete fairly and as a result it is important that employers proactively monitor performance and deal with the issue formally early on.


  1. Holiday Pay


Recent years have seen a wealth of case law pass through the courts dealing specifically with the calculation of holiday pay.


These case law developments have drastically changed the way in which employers must calculate holiday pay, which traditionally was only paid at a basic flat rate.


If an employee receives regular additional payments that are intrinsically linked to their role, these sums should be included in the calculation of a week’s holiday pay. This includes payments such as commission, mandatory overtime, call-out payments, performance bonuses and stand by payments.


  1. Departing Employees


Whilst businesses recognise that the time often comes for employees to move on, the impact of this can potentially be significant.


Without the protection of well drafted restrictive covenants, departing employees are free to actively compete by soliciting the custom of and dealing with the clients of their former employer. This can result in a significant loss of income, especially in relationship centred businesses.


It is possible to prevent employees from carrying out work on behalf of your clients for a period of time following the end of the employment relationship. That being said, the case law makes it clear that businesses can only go as far as is reasonably necessary to protect themselves.


If a restriction is drafted too widely or purports to last for unreasonable length of time, a court can deem that they are unenforceable, leaving the business completely exposed.

Additionally, without the protection of a comprehensive confidentiality clause within the contract of employment, often the only information that is protected following the end of the employment relationship are trade secrets. This has a very narrow definition and is rarely of much use to employers.


If you would like to discuss these employment headaches, or any other aspect of managing people, please contact Catherine at