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Employment Law Myths: Part one

November 25, 2019

Many people running a business struggle to keep on top of employment law – after all, it’s complex and ever-changing. It’s maybe not surprising that there are some very common misconceptions – all of the ‘myths’ here are ones we regularly hear, so I’d like to take a few minutes to debunk them!

#1 If I dismiss someone during their probationary period, they can’t take me to a tribunal. 

Many people believe this and it can lead to some very risky behaviour. Probationary periods can be a useful management tool, but they don’t provide any protection in employment law – a dismissal is still a dismissal! In MOST cases, the employee won’t be able to bring a claim for unfair dismissal, since they won’t have two years’ continuous service. However, there are several important exceptions, for example if the dismissal is for a reason connected with maternity or whistleblowing. And, don’t forget, protection from discrimination starts even before employment begins. 

#2 If someone doesn’t sign their contract, but they continue to work for me, it means they’ve accepted the terms and are bound by them. 

Not necessarily – while there is an assumption that if someone hasn’t raised an objection and has worked under the terms of the contract for a period, then they have accepted those terms, it’s really not wise to rely on this as an employer. In particular, terms such as restrictive covenants or making deductions from wages will be more difficult (or even impossible) to enforce if the contract isn’t signed. If an employee hasn’t signed their contract, you need to meet with them and discuss why not. Seek help if they still refuse.

#3 – A woman returning from maternity leave has the right to work part-time if she wants to. 

Returning to work from maternity leave can be a challenging time and many women may want to change their work pattern. They may wish to reduce their hours, work from home or have more flexibility as to when they work. Most employers will do their best to make adjustments to enable valuable members of the team to continue to work while looking after children. Anyone who has been employed for 26 weeks has the right to formally request a change to their work pattern under the flexible working request (FWR) scheme, and the employer must follow a proper, fair process to consider the request. However, there are several specified business reasons why a request may be refused, so it’s NOT an automatic right. This can be a complex area and emotions can run high – make sure you have an up to date FWR policy in place and that you follow it fairly.

Read more about handling FWR

#4 – I have CCTV evidence of an employee stealing from me and dismissed them on the spot – that’s OK, isn’t it? 

No! You CAN suspend them on full pay with immediate effect (it’s helpful to have a specific suspension clause in your contracts of employment). You must then conduct an investigation before deciding on what, if any, disciplinary action is appropriate. Summary dismissal without a proper process could well be found to be unfair, however strong you believe the evidence of gross misconduct to be. The position may be different if the employee hasn’t worked for you for two years and is therefore not entitled to claim unfair dismissal, but this will depend on what it says in your handbook and contracts as well as the specific circumstances. As always, be aware of the possibility of a discrimination claim. If in ANY doubt, seek professional advice BEFORE you act.

#5 – If you want to get rid of someone who is underperforming, making them redundant is a safe option.

This myth is quite pervasive! If you are truly making somebody redundant, there is a proper process to follow. If you claim someone is redundant as a reason for dismissing them, when they are not, in fact, redundant, the dismissal would be likely to be considered unfair. In the worst cases, we have heard of businesses advertising a role as soon as someone has been made redundant from it – not an easy thing to defend in a tribunal!

If the issue is underperformance, then this is what needs to be tackled. Is it a capability issue which training or mentoring might resolve, or more a case of poor attitude? Could there be any medical problems (including mental health) which could be impacting performance? How long has the person worked for you? Each of these scenarios would require quite different management, so do think carefully before you act.

Please note: This article is intended for general guidance only and is not a substitute for specific legal advice in any particular situation.

Need help with any aspect of employment law or managing your team? Contact us for a confidential, free, initial conversation, with no obligation. 

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