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Tuesday, 07 May 2013 15:48

Top Employment Law Myths

Written by  Innes Clark
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I recently posted a blog on Employers' Perceptions of Employment Law which made reference to the need to dispel some of the myths which surround employment law. With this mind I thought it would be a good opportunity to re-examine what employment law myths do exist.

There is no contract of employment if there's nothing in writing.

False: Even a verbal contract is a binding agreement and a contract of employment will be implied from the dealings between employer and employee. Employers are required by law though to issue a written contract of employment within 2 months of an employee commencing employment with them.

Employees with less than two year's service cannot raise an unfair dismissal claim.

False: There are a good number of situations (for example dismissal for certain health and safety related reasons, dismissal for whistleblowing, dismissal for exercising certain statutory rights) where an unfair dismissal complaint can come from an employee with under two year's service. In addition, no qualifying service is required to raise discrimination claims and very often such claim will be raised by unsuccessful candidates for a job who have never worked for the organisation they are raising a claim against. Also, bear in mind that the two year's service is misleading and it is actually at the 103 week point that, in most cases, an employee will qualify for the right not to be unfairly dismissed. This is because of the operation of the statutory one week notice period which will take the employee over the two year threshold. In addition, remember that anyone that was employed by an organisation on or before 5 April 2012 only needs one years' service to raise a Tribunal claim against that organisation.

You can sack someone on the spot for gross misconduct without following any form of procedure.

False: I think most employers now know that you can't do this but we do still see it happening from time to time. Where an employee has over two years' service (or over one year where the employee was employed before 6 April 2012) this will result in the dismissal being unfair. Employers should always follow a fair procedure which is compliant with the ACAS Code and even if an employee is caught red handed the employee should be suspended and a fair procedure followed.

If an employee's fixed term contract expires then they cannot raise a claim for unfair dismissal.

False: The expiry of a fixed term contract is actually a dismissal, and is subject to the same test as any other dismissal. An employer should follow a fair procedure before allowing a fixed term contract to expire. This should involve considering employee for any other suitable vacancies within the organisation. Any failure to follow these steps may result in an unfair dismissal claim. In the event that there was no good reason for the fixed term contract in the first place and the role (or a similar one) still exists then it is also likely that any dismissal will be unfair.

An employee returning from maternity leave has an automatic right to work part-time.

False: Such an employee has the right to request to work flexibly but an employer is only under a duty to consider this. However, employers should be careful as a sex discrimination claim can be raised by the employee if the reason given for refusing is not legally justifiable.

Restrictive covenants aren't worth the paper they're written on.

False: Provided restrictive covenants are drafted in such a way that they go no further than is necessary to protect a company's legitimate business interests then they are likely to be enforceable.

You can't dismiss employees when they are signed off sick.

False:Depending on the circumstances it may be possible to dismiss employees either because they are off on long term sick leave or because they are repeatedly taking intermittent days off sick. This is the case even if the sickness is genuine or certified by a doctor. However, it is essential that a fair procedure, including appropriate consultation and, certainly in the case of long term absence, the obtaining of medical reports, is followed 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.

Employees have the right to be accompanied by someone of their choosing at a disciplinary meeting.

False: Employees only have the statutory right to be accompanied by a fellow employee or a Trade Union Representative at a disciplinary meeting. Bear in mind though that:-

1. some employees have a right in terms of their contract to a broader right of accompaniment which could, depending on the wording of the contract include the right to be accompanied by a lawyer.

2. if an employee is disabled it may be a reasonable adjustment to allow them to be accompanied by someone other than a fellow employee or a trade union representative.

3. there is an argument that where the outcome of disciplinary proceedings would have a "substantial influence" on a decision of a regulatory body (or similar) that has the power to bar someone from their profession that Article 6 of the European Convention on Human Rights (the right to a fair trail) could allow someone to establish a right to legal representation. This is likely to be in extremely limited circumstances only.

The first 30,000 of a severance payment can always be made tax free.

False: Unfortunately it is not as simple as that. There is a statutory exemption which allows the first 30,000 of a genuine ex-gratia payment made on termination of employment to be paid tax free. However, there are many circumstances where payments made on termination are properly taxable. Pay in lieu of notice payments in particular can cause confusion and will very often be properly taxable. Payments close to retirement may also be taxable in certain circumstances.

Last modified on Wednesday, 08 May 2013 21:02
Innes Clark

Innes Clark

Employment Lawyer
Morton Fraser Solicitors 

Website: www.morton-fraser.com/blog/employment E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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