Top ten myths of employment law

HR and employment law specialists are constantly challenged by changing employment law and investigationsbest practice so it’s no surprise that keeping abreast of new regulations can be difficult. Whether it’s Chinese whispers or a simple misinterpretation, there are still numerous employment law untruths that continue to circulate despite being incorrect. To help you determine fact from fiction, here are the top 10 most common employment law myths.

1. Suspension is a neutral act. False. When suspending someone it must be justified and kept under review. Failure to adhere to this can lead to a fundamental breach of trust and confidence; and could give rise to a claim for constructive dismissal.

2. If an employee is dismissed for a reason, other than gross misconduct, they’re always entitled to their notice period at full pay. Not necessarily. While no notice is payable when dismissal is for gross misconduct, in all other cases, the employer is entitled to ask the employee to work the notice period as laid out in their contract. If the employer decides to breach the employment contract and not give notice, the employee is under a duty to mitigate their loss. This often means taking on a new job during the notice period. However the employee would have to credit back any earnings from new employment that take place during the notice period.

3. There’s no contract of employment if there’s nothing in writing. False. A contract can be verbally binding; however employers are required by law to issue a written statement with the main terms and conditions within two months of employment.

4. Employees with less than two years’ service cannot raise an unfair dismissal claim. False. In certain situations employees with less than the 103 weeks statutory employment length can raise a claim. These can include dismissals for health and safety issues, whistle blowing, exercising certain statutory rights and discrimination.

5. An employee returning from maternity leave has an automatic right to work part-time. False. An employee has the right to request to work flexibly but an employer is only under a duty to consider the request. However, employers should be careful as a sex discrimination claim can be raised by the employee if the reason given for refusing part-time employment is not legally justifiable. Fair reasons for refusal include: burden of additional costs, inability to recruit additional staff and detrimental impact on performance.

6. You can’t dismiss an employee when they are signed off sick. False. Depending on the circumstances, it may be possible to dismiss employees either because they’re off on long

term sick leave or repeatedly taking days off sick, even if the sickness is genuine. However, it is essential that a fair procedure, including appropriate consultation and, certainly in the case of long term absence, obtaining medical reports follows in each case. Full consideration must also be given to the employer’s obligations in terms of the Equality Act if the employee has or may have a disability.

7. You can’t contact an employee if they are off sick with stress related illness. False. In fact the exact opposite is true. An employer is under a duty to manage sickness absence appropriately. This starts by finding out full details relating to the absence and contacting the employee to discuss how it will be managed.

8. The first £30,000 of severance payment can always be made tax-free. False. Unfortunately it’s not as simple as that. There’s a statutory exemption that allows the first £30,000 of a genuine ex-gratia payment to be paid tax-free. However, there are many circumstances where payments made on termination are taxable; pay in lieu of notice in particular can cause confusion and will very often be taxable.

9. An employee must be suspended if the allegation is gross misconduct. False. As stated at point 1 above, suspension is not a neutral act. This means that even in cases of gross misconduct an employer must have justification for deciding that the employee needs to be suspended whilst the allegation is investigated rather than being allowed to remain at work.

10. You can’t dismiss an employee in their absence. False. There may be occasions when an employee is repeatedly unable or unwilling to attend a disciplinary meeting, but employers must consider all the facts and come to a reasonable decision on how to proceed. Considerations may include reasons why the employee has failed to attend, such as genuine illness or a refusal to face up to the disciplinary issue they currently face, as well as medical opinion on whether the employee is fit to attend the meeting. Companies should also take into account any rules it has in place for dealing with failure to attend disciplinary meetings or the seriousness of the disciplinary issue under consideration. The employer may conclude that a decision will be made on the evidence available without the employee being present; if so then the employee should be informed.

It’s essential that you’re kept aware of any new laws, however if something doesn’t sound quite right be sure to get legal advice. This may curb any potential claims that could be brought against you and your company.

About Rachel Yorke

Rachel Yorke is a solicitor within the employment law and HR team at law firm SAS Daniels. She advises employers on a range of aspects of UK employment law, and specialises in drafting and negotiating settlement agreements for both employers and employees.

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