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We had a temporary agency worker for a couple of shifts over the Xmas period. This worker then applied directly to us from an advert at the JobCentre. She has now started with us. The agency want to charge us over 2000 pounds. This member of staff had no prior training in Care before being sent to us which they are supposed to. Can the agency charge us this?

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The starting point is to ascertain whether their terms and conditions govern the contract and, if so, whether there is a clause entitling them to charge in such circumstances. Often, fees are payable on "introductions" which are usually defined very widely for perhaps obvious reasons.

However, even if the contract may work against you, the legal authorities in this area adopt the principle that, in order for a fee to be payable, the recruitment agency has to show that they introduced the individual to the job, not merely to the employer. You will appreciate there is a significant difference and in your situation, I would attempt to argue that the agency did not introduce the individual to the job and that, therefore, no fee is payable.

A site overseas has started to put copies of our job vacancies (presumably from one of the sites where we advertise) on their website and we are getting unwanted applications from all over the world. What can we do to stop this?

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Thank you for your enquiry. We suggest you check the terms and conditions of the host site from which you advertised (or your own site if the job vacancies have been taken from there), to see if the overseas site operator is in breach of any of those terms and conditions. For example, if those terms prohibit the use of job information for anything other than personal application, the host site/you can contact the operator of the overseas site pointing out that they are in breach - and requiring them to take the job information down. If the overseas site is linking to the host site or your site, then check to see if the terms and conditions of the site on which the vacancy appeared prohibit linking. If they do, the host site/you should contact the overseas site operator to ask them to remove the links, in the same way.

If the overseas site has copied your own text and/or other content from your own advertisements, then you may also be in a position to point out that they are are breaching your copyright in that text/content - and add that as further reason for them to take the job information down.

The site operator ought to note your warnings and take the content down. However (on the assumption that your business is UK based ), it is sometimes difficult to enforce legal requirements against operators abroad if they refuse to comply, as it may be difficult to track them down and then to enforce rights through an overseas court.

I have applied for 13 days leave next year, and they are now saying I can only take 10 days at once. I have an entitlement of 25 days. I have booked a 2 week holiday to the Caribbean, and need a day either side to travel to the airport as we live in Cornwall. I have a 2 week holiday every year and has never been a problem before. Please tell me if they can enforce this?

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The starting position is the Working Time Regulations 1998. Those Regulations are silent as to the number of days' holiday that may be taken by an employee at one time, but this position can be varied by express provisions in the contract of employment. Under the Regulations, an employer is entitled to refuse a request from an employee to take holiday at a particular time.

Often there will be a contractual provision requiring employees to seek prior authorisation of a manager before holiday days are booked. There may also be a provision stating that only a certain number of days' leave may be taken in one block of time and at a time convenient to the Company. If the contract says either of those two things then the Company can refuse to let you take a block of 13 days' leave at once, as long there is an opportunity for you take the remaining 3 days' holiday at another time during that holiday year.

I suggest that you explain that you have been relying on the past practice of the Company. There is a possible argument that, due to past practices, there is an implied term in your contract that you will be entitled to 13 days' holiday in one go (depending on how many times this has been granted previously), although this is unlikely, especially if there is express provision in the contract to the contrary and the Company has only allowed you to take a block in excess of 10 days' holiday on a couple of occasions in the past. In any event, your employment contract may state that any amendments to the contract must be in writing to be valid. This will preclude an argument that your employer has impliedly varied the contract by custom and practice.

An alternative solution could be for you to ask your employer if you can take some of the time as unpaid leave.

Can we specifically incorporate consultants usage of LinkedIn re: our clients/candidates added since employed with us in to our contracts re: data theft? If so how is it best worded as the site is theirs effectively?

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It is possible to incorporate the use of Linked In into your contracts of employment in order to protect your clients and candidates. Alternatively the use of networking sites such as Linked In and Facebook can be included in your employee handbook and addressed as part of your internet policy.

Obviously it is for the respective company to decide the extent of which it would like to limit a consultant's use of Linked In, or such related sites, and depending on that decision it is then possible to incorporate the appropriate wording into the relevant contract of employment or the standard employee handbook.

I recently left a recruitment company to start up on our own with a colleague. We had restrictive covenants regarding previous clients that we had been adhering to. However, our previous employer has changed the company name - do the restrictive covenants still stand?

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Restrictive covenants are contained in the contract of employment between you and your employer, and come into play on the termination of your employment. They restrict what you can do after your job comes to an end, and are designed to prevent you from competing with your old employer for a limited period. In order to be enforceable, restrictive covenants must:

• Protect the legitimate interest of your employer's company;
• Be no wider than necessary to protect that legitimate interest;
• Be reasonable, e.g. in the length of time they seek to protect, and having regard to the interests of the parties and the public interest;
• Be sufficiently clear in their content.

Every contract is different and must be examined carefully in order to determine whether the restrictive covenants meet the above criteria and are thus enforceable.  However, it is very unlikely that the change in the name of your previous employer's company alone will have any effect on the validity, or otherwise, of the covenants.  This is because the restrictive covenants were made between you and your old employer, and it sounds as though that entity has not changed – it is only the name of the business that has.  If this is the case, and the company remains the same, for example, if it is still registered under the same company number, then you will be bound by the restrictive covenants.  If, however, something else has changed in addition to the company name, you should seek further legal advice in order to properly advise on the situation.

If a temp works continuously with one client in excess of 14 weeks can a temp to perm transfer fee be charged? We are aware of the Agency Regulations 2003 - but it is unclear in their wording and The REC leave it open for interpretation.

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Thank you for your question. Transfer fees are regulated to ensure that hirers are not deterred from offering permanent work to temporary workers, while trying to ensure that the business interests of employment businesses are protected.

There are a number of issues to be considered in temp-to-perm situations. You do not make clear whether or not the hirer has been offered the option to have the worker supplied to it for an extended period of hire. If you do not offer this, you may not charge any transfer fee. However, if you have offered this and the client has not accepted, and provided your terms and conditions allow you to do so, you may charge a transfer fee in accordance with your terms if the transfer occurs within 8 weeks of the end of the period of assignment. The 14 week period is measured from the start of the first assignment with the hirer, although the rules are more complicated if there has been more than one assignment.

To give you a definitive answer, we would need to see a copy of your terms and conditions.

If you recruit a person specifically to cover for another’s absence on maternity leave and then 3 weeks after starting the replacement announces that she is pregnant, will it be discrimination to terminate that appointment? Or to vary the terms of her engagement?

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This is a complicated area and we would always advise employers to proceed with extreme caution when attempting to vary the terms of employment of a pregnant worker or considering dismissal. You should tread with even more care in this case where the only reason for such variation or dismissal would be the employee's pregnancy. Regardless of the reason for her hire or the timing of her pregnancy, a pregnant employee is protected by law from suffering any detriment by her employer for a reason related to her pregnancy. This is will impact on your ability to vary her terms and conditions of employment. Further, if, on the grounds of her pregnancy, you dismiss the employee (or vary her terms and conditions of employment and the employee claims constructive unfair dismissal) then the employee (despite only being employed for 3 weeks before announcing her pregnancy) will have a case for automatic unfair dismissal on the grounds of sex discrimination, for which compensation in the tribunal is uncapped.

All pregnant employees are entitled to maternity leave of up to 52 weeks. If the employee has at least 26 weeks continuous service by the time she is 15 weeks away from her due date, then you must pay her statutory maternity pay (which an employer can recoup). You must pay statutory maternity pay for up to 39 weeks. If the employee has not accrued 26 weeks ' continuous service by the time she is 15 weeks away from her due date the she may be entitled to claim up to 26 weeks Maternity Allowance.

I have just joined a new recruitment company who specialise in the same field as my previous employer. My old contract contained a paragraph on the restrictive covenants, it mentions that I cannot call or attempt to contact any client for a period of 1 year post termination of contract. The "Client" is considered as a client if my old company called them for a period of 6 months prior to my contract termination. Is the covenant too wide and so will not hold in court?

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This question is not straightforward. It will depend on a whole list of issues that we would need to discuss at length including the type of work you do, the clients you work for, the drafting of the contract and your seniority within the company. If you are a relatively senior employee then a one year non-solicit clause may be deemed to be reasonable if it is required to protect the legitimate business needs of your former employer.

You have stated that the clause defines "Client" as someone with whom the company had contact with during the 6 months prior to your termination. This is wide as you personally may not have had contact with a client however the courts will judge each case on its own merits and it is very hard to judge, without more information as to your role and the amount of client contact you had, to give a definitive answer on the enforceability of your non-solicitation clause.

If a group of people are being TUPE'd to a new employer, there seems to be a point in time from which employees are 'held in consultation', and once in period of time are not allowed to apply to transfer out of this body of people. Is there some maximum time that this state of 'none employee movement' can exist.

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Prior to a transfer, the buyer and the seller must inform and (in certain circumstances) consult the appropriate representatives of affected employees.

The communication must take place "long enough" before the transfer. There is no definition of "long enough" but it must be sufficient time to consult on the following:

• the fact that the relevant transfer is to take place;
• when it is to take place;
• the reasons for it;
• the legal, economic and social implications of the transfer for the affected employees;
• the measures which the employer envisages taking in relation to those employees (and if no measures are envisaged, that fact);
• if the employer is the seller, the measures which the buyer envisages that he will take in relation to those employees who are to be automatically assigned to him on the transfer (and if no measures are envisaged, that fact).

There is no prescribed time limit for consultation and it will depend on the extent of any changes that are likely to take place as consultation should be with a view to reaching agreement, so we are usually looking at weeks not days. No decisions should be made about the transfer until the consultation has finished.

This is a vast and very complicated area of employment law and if your company is contemplating either transferring employees or receiving employees by means of a TUPE transfer, we suggest that you obtain specialist legal advice.

I've worked for my present employer for 3yrs 7mths and for all of that period of time have had a company mobile phone which I negotiated when I first took the job (as well as additional holidays) so not to lose any benefits I had from my previous employer. My present employer is feeling the pinch and in a recent meeting I was told that my mobile phone is now going to be taken away. As I will now have the expense of a mobile phone (which I fully expect to still have to take & make business related calls on) where do I stand? Is this benefit removal allowed without some form of recompense?

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If your entitlement to the mobile phone is in your contract of employment then this will amount to your employer attempting to vary the terms of your contract. Practically you have two options:

1. Agree to the change and perhaps try and negotiate an alternative with your employer. For example, asking your employer to pay work-related calls on your personal phone if you present your phone bill to your employer monthly. This will save your employer costs on line rental and on purchasing the phone but you will still have work-related calls paid for. This is likely to be the best option.
2. Not accept the change. If you want to continue working for your current employer then you should make it clear that you do not accept the change in terms otherwise you may be taken to have agreed by implication. This could lead to tension and an unproductive working environment.

If you are not contractually entitled to a mobile phone then it is within your employer's rights to remove the benefit. However, I would suggest a negotiation as suggested in point one above.

A fee dispute has arisen over a candidate who's CV was introduced by us with candidate approval to company X. On hearing there were no live vacancies the candidate doubled up their application direct the next day with the same company, different department. The candidate did try to withdraw the direct application but the company would not accept the agency introduction. Please advise.

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Before answering the question, I am presuming that you do have a contract with Company X which deals with, among other things, your entitlement to charge when candidates introduced by you are employed. Turning to the question, it will depend on whether the agreed terms of your contract with Company X cover this situation. Your contract should include a provision that a client such as Company X would be liable to pay your fees if you introduced the candidate, who was subsequently employed, whether or not the candidate was employed as a direct result of your introduction. This covers situations where the candidate applies direct. Also, ideally, the contract will have a relatively wide definition of "introduction" which will again protect you - e.g. if you send a CV, that would be deemed to be an introduction. So, check you do have a binding contract with Company X and check that it contains the correct type of terms to provide that Company X are liable to pay you irrespective of the direct application.

Two of our recruitment consultants are in a relationship and have recently informed me that they are expecting a baby. Both the mother and the father would like to take the maximum time they can away from work to care for the baby when it arrives. We don't have any enhanced maternity or paternity provisions for staff. How long could they both be away from work under the statutory provisions?

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All female employees qualify for 52 weeks' statutory maternity leave, regardless of their length of service.This maternity leave is split into 26 weeks of ordinary maternity leave and 26 weeks of additional maternity leave. Following a recent change in the law, employees whose expected week of childbirth ("EWC") begins on or after 5 October 2008 will have the right to the same terms and conditions during additional maternity leave as they currently enjoy during ordinary maternity leave.However, in order to qualify for maternity leave, the employee must have notified you of her pregnancy no later than fifteen weeks before the EWC (or, if this was not practicable, as soon as possible before the EWC).

In order to be eligible for paternity leave, the father must have completed 26 weeks' continuous employment with you by the end of the 15th week before the EWC, and must also have notified you of the pregnancy no later than fifteen weeks before the EWC.He must be the father of the expected child, or alternatively he must be either married to, or the partner of, the mother.His planned absence must be for the purposes of caring for the child, or supporting the mother of the child in her caring for the child.If these eligibility criteria are met, your recruitment consultant is entitled to take either one or two weeks' paternity leave (the choice is his).If, as you say, he wishes to take his full paternity leave entitlement, those two weeks must be taken together rather than as two separate periods of one week.

Subject to various conditions and any postponement by you in accordance with the statutory procedure, employees may also wish to exercise their right to request a four-week period of unpaid parental leave to care for their child at some point following their maternity/paternity leave, and possibly immediately thereafter.

In addition, both the mother and father may well wish to take a period of annual leave at either end of the above leave. Unless their contracts limit the amount of annual leave which may be taken at once, and subject to your approval and to any remaining entitlement in the holiday year in question, you should be aware that they might wish to take their full annual leave entitlement before and/or at the end of their maternity/paternity or parental leave.This could mean that they are away from work for significantly longer than the relevant statutory periods described above.

Can I stop an employee from using their personal mobile to store my client contact numbers?

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The short answer is yes. The client contact details may amount to confidential information which belongs to the company and which the company is entitled to protect. If you provide your employee with a company mobile phone, then you can expect them to use that mobile phone to conduct company business. You are entitled to restrict them from using their personal mobile phone to store client details. You should make sure that your contracts of employment are properly drafted to allow for this and for the return of it and other property on termination of employment.

How often will an employer have to check an employee's right to work in the UK after 29 February 2008 to avoid a civil and/or criminal penalty?

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Employers will be required to check the right to work of all employee's before their employment commences.

If an employee provides a document that indicates he/she has a continued right to work in the UK (such as a British passport) then the employer will not be required to make further checks during the course of employment.

If an employee provides a document which indicates he/she has a restriction on his/her stay in the UK (such as a Work Permit along with an endorsed Passport), then in addition to checking this document before the commencement of employment the employer must also continually check the employee's right to work during the course of employment (at the very least once a year). Employers should also diarise when an employee's leave is due to expire to avoid employing that person illegally before the next scheduled check.

The immigration team can offer further guidance about these changes, and the variety of acceptable documents to benefit from the statutory defence.