EMPLOYMENT LAW MYTHS – FACT OR FICTION

As an employment law solicitor, I regularly hear the same myths regarding employment law and employee rights. In this article, I will dispel some of the more common myths and explain the risks of getting it wrong.

Fact or Fiction – applicants for a job and current employees are under a duty to inform their employer that they are pregnant.

Applicants and employees are actually under no obligation to let their employer know that they are pregnant.

It is understandable that there are circumstances where an employer would want to know that someone was pregnant. For example, they may be looking for someone to cover maternity leave or they want the continuity in the business for their clients. However, pregnancy is not something that an employer can take into account when deciding to recruit an applicant or promote a current employee.

Asking an applicant or employee if they are pregnant or if they think they may have children is very risky and could lead to a discrimination claim. Such a claim is completely uncapped and can be brought by a job applicant – they don’t even need to be employed by you.

You can’t even ask if you think it is obvious – although that is always dangerous in case they are not!

Fact or Fiction – an employment contract has to be in writing for it to be legally valid.

This is not true and a verbal contract can be enforceable. There are also several implied terms that can apply whether or not they are written down.

There is a legal obligation to provide employees with a written statement of certain terms of their contract (including pay, hours, holiday entitlement, place of work). This applies to any employee who will be or is employed for more than one month.

An employee who is not provided with a compliant written statement (which would all be covered in an employment contract) would have a potential claim.

Fact or Fiction – rights in relation to holiday entitlement and notice periods do not apply until after the probationary period has been passed.

Holiday entitlement is a day one right and a claim can be brought for failing to be allowed to take holiday or not being paid correctly for the period of holiday. Employees and workers are entitled to 5.6 weeks of holiday per year.

Regarding notice, there is a statutory minimum notice that must be given. This right applies after one month of employment and starts at 1 week’s notice. This goes up to 12 weeks’ notice for someone with more than 12 years’ service.

A contract of employment may set out the notice period or holiday rights that apply. However, these must be at least the statutory minimum or the written contract terms would be overridden.

Fact or Fiction – “last in, first out” is a fair way to select for redundancy.

Using this method for selection could lead to the risk of a claim for age discrimination as younger employees are likely to have less service than older employees. Selection criteria used in a redundancy process should be as fair, reasonable and objective as possible. It should also be measurable where possible rather than just based on opinion. It could include things like disciplinary record, time-keeping or qualifications. We suggest advice is taken on these criteria as it is easy to accidentally discriminate.

Fact or Fiction – All employees are entitled to redundancy pay

A lot of people also assume that anyone who has been made redundant is entitled to redundancy pay. In fact, unless agreed differently in a contract, employees must have been employed for more than 2 years before they are entitled to redundancy pay.

Fact or Fiction – All employees are entitled to take Bank Holidays off or must be paid at a higher rate

Employees often believe that they are entitled to have bank holidays off from work or that, if they have to work them, they are entitled to be paid extra. Employees do not automatically have the right to take a bank holiday off or to be paid more for working the bank holiday. Employees can be required to work bank holidays and many businesses are open on bank holidays and need staff. It is important that a contract of employment is clear regarding which days are worked and that the pay terms are also clear. There is also a risk that there is a custom and practice of paying additional pay which could become an implied term of an employee’s contract. This should be considered too before making a final decision on pay.

Fact or Fiction – You should always suspend an employee when investigating misconduct

Some employers always suspend an employee when investigating an offence that may amount to gross misconduct. Employers should carefully consider whether they should suspend (which would usually be on full pay) and it is not a step to be taken automatically. Suspension should be seen as a last resort and an employer should be able to justify it.

Reasons for suspension may include a risk of tampering with evidence or their attendance at work having a serious impact on the business. A suspended employee may resign and have a claim for constructive dismissal if the suspension can be shown to breach trust and confidence.  Advice should be taken before suspending someone to avoid the risks associated with suspending someone without justification.

Fact or Fiction – There is no risk in dismissing short-service employees

Many employers think it is really easy to dismiss an employee with less than 2 years’ service and that they cannot bring an employment tribunal claim. Short-service employees do have limited rights to bring unfair dismissal claims and it often is easier to dismiss them but there are certain claims that an employee can still bring, including claims for automatic unfair dismissal. Automatic unfair dismissal claims include dismissal for taking maternity leave or being pregnant, being dismissed for whistleblowing or for asserting a statutory right such as taking holidays. These claims are uncapped in value too. In addition, they would have the right to bring a discrimination claim. It is therefore important to take advice before dismissing and to consider the wider risks.

Our team at Evans Lamsley can advise you on all aspects of employment law . We offer fixed fee unlimited support to businesses so our clients can call us whenever they want without the worry of another bill. There are so many more employment law myths that it’s important to get advice before ending up in the employment tribunal. Call us today for a free consultation to find out how Evans Lamsley can support you or your business on 01244 980680.

Nick