03 Sep 10 Myths of Employment Law
Sometimes it can feel as though employment law is out to get you. Not only is it baffling and complex, it’s also constantly evolving. So even if you think you’re on top of it, tomorrow you may be back to square one.
Which is why we’ve put together a simple myth-busting guide to 10 common employment law questions. So grab yourself a cuppa, allow yourself a biscuit, and enjoy these little eye-openers…
An employer can reject a candidate for a maternity leave cover role on the basis that she’s also pregnant and would not be able to work the full leave period.
Unless you want to be hauled over a barrel under the sex discrimination act, this is not a wise move. Rejecting a woman because she’s pregnant would constitute unlawful sex discrimination, even if the contract were for a fixed term only. The Sex Discrimination Act 1975 and more recently the Equality Act 2010 both make it clear that this would amount to unlawful sex discrimination. So if you don’t want to hire a pregnant woman, you’ll need to follow a clear recruitment plan and have clear rationale based on her skills/experience/scores etc.
It’s illegal to make someone on maternity leave redundant.
If there’s a genuine redundancy situation, you can make someone on maternity leave redundant. But you do need to ensure she’s involved in the consultation process. It is true, however, that women on maternity leave get extra protection in that if there’s a suitable alternative vacancy available, they’re entitled to be offered it – not just invited to apply. Of course, the alternative vacancy must be appropriate for the woman to do in the circumstances, and the terms and conditions must not be ‘substantially less favourable’ than her existing terms.
An employment contract exists even if there’s nothing in writing.
Even a verbal agreement is binding enough for someone to start employment. However, you’ll need to get a written contract of employment signed, sealed and delivered within two calendar months of their start date. If you don’t issue a contract of employment within this timeframe then you risk a penalty of 2-4 weeks’ pay at the statutory limit (at the Employment Tribunal’s discretion).
I have to give my staff a paid day off for an extra bank holiday.
If you’ve been crafty enough to specify in your contract of employment that your employees are entitled to 20 days plus 8 bank holidays, then you’re not obliged to give this extra day. You get a gold star from Streetwise if your contract of employment is in place and up-to-date on this front. It makes the job of an HR department a lot easier if issues arise!
I have to pay accrued annual leave to someone who is dismissed for Gross Misconduct.
An employee is always entitled to accrued annual leave even if they’re dismissed part way through a holiday year, and even if they’ve been instantly dismissed for Gross Misconduct. However, if the contract is cleverly written, it may specify that any contractual holiday over and above statutory entitlement will be forfeited if he or she is summarily dismissed. So, another reason to get crafty with your contract!
I can dismiss someone on the spot without notice if they’ve committed an act of Gross Misconduct.
It doesn’t matter how many films you’ve watched whereby a disgruntled employer dramatically fires a bewildered employee, it just doesn’t happen like that. There are processes to follow, boxes to tick. If the situation is serious enough, you can ‘instantly dismiss’ without notice if an employee has committed an act of Gross Misconduct. However, you must follow your usual disciplinary process, give the individual an opportunity to respond to the allegations, follow the process to disciplinary and then offer the right to appeal. Be aware that claims for unfair dismissal are more likely to be successful if a fair process wasn’t used. So however serious the misconduct, you mustn’t scrimp on a proper procedure!
I can sack anyone with less than two years’ service for any reason.
Surprise surprise, it’s not that straightforward. An employee who has less than two years’ service can’t claim for unfair dismissal, but they can claim for wrongful dismissal from day one. ‘Wrongful dismissal’ is where there’s been a breach of contract by the employer, such as failure to give the employee the correct length of contractual or statutory notice or not following your own disciplinary process.
I don’t have to give my employees paid time off for compassionate leave.
As mean as it sounds, you don’t have to give your employees paid time off for compassionate leave following bereavement. However, they are entitled to a ‘reasonable’ amount of unpaid time off so that they can take actions in relation to the death of a dependant (i.e. spouses, children and parents). To any person with an ounce of compassion, this will sound pretty cutthroat. If you’re a nice person, you can offer paid days at your own discretion. Good on ya!
Resignations need to be accepted by employers.
Welcome to the biggest misconception out there. In an employment relationship, there’s no need for a resignation to be accepted by the employer. Resignation is purely a decision made by the employee, in the same way dismissal is purely a decision made by the employer. Thus, just as an employee can’t refuse the sack, an employer can’t refuse a resignation.
The 10 keeping-in-touch days for employees on maternity, adoption or additional paternity leave are pro-rated for part-time employees.
The legislation does not make provision for the 10 keeping-in-touch days to be pro-rated for part-time employees. For example, an employee who normally works only a three-day week is still entitled to 10 keeping-in-touch days. Simples!
So there you have it – 10 myths blasted into oblivion. If you’re keen to avoid employment law potholes by creating a watertight employment contract, get in touch. We can ensure you’re in the very best position to tackle the difficult situations…and come out on top.