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Employment Law Myths: Part Two

January 14, 2020

A few more commonly-held beliefs that can get employers into trouble. If you missed part one and would like to take a look, you can find it here

#6 If one of my employees threatens another, I should issue them with a final written warning.

You can’t issue a formal disciplinary sanction (whether that’s a verbal or written warning) without following a proper disciplinary procedure. Depending on how serious the situation is, it may be appropriate to suspend them on full pay while you conduct an investigation – this is easier if your contracts contain a suspension clause. If you find that it warrants disciplinary action, you must invite the person to a hearing, at which they have a right to be accompanied, and provide them with your evidence in advance of the hearing. If you do impose a sanction, they must be given the right to appeal. Your disciplinary policy should state how long the warning remains active, though it’s good practice to keep them on record even once they are spent.

#7 Only parents of children under the age of 18 have the right to request flexible working.

No – as we discussed in ‘myth #3’ anyone who has been continuously 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. No longer the preserve of working mothers, an increasing number of men are requesting more flexible patterns of work, either because of caring responsibilities, for health reasons, or to improve their work-life balance. All must be treated fairly, though you should remember that granting one request does not set a precedent – each must be evaluated on the circumstances in the business at the time of the request.

#8 You are discriminating against a person if you refuse to employ them because they have a visible tattoo.

Discrimination only applies to a situation where someone is treated less favourably because of a protected characteristic, as defined by the Equality Act 2010. These are: 

Age
Disability
Gender reassignment
Marriage and Civil Partnership
Pregnancy and Maternity
Race
Religion and Belief
Sex
Sexual orientation

If you do have a ‘no visible tattoos’ policy, this should be clearly stated in a written policy and communicated to all members of staff. Many workplaces have started to relax codes about tattoos and piercings as they become more commonplace, and in the face of media attention and on-line petitions. Some have questioned the wisdom of excluding a pool of potential talent purely on the basis of a tattoo; the police, for example, allow visible tattoos, provided that they aren’t offensive, violent or potentially discriminatory in nature.

#9 If an employee has a disability, you cannot dismiss them because of it.

As an employer you have a legal duty to make reasonable adjustments to enable an employee with a disability to continue working. This can include specialist equipment, a change in hours or an alteration in the duties they perform. Many of these can be relatively simple and inexpensive to implement; sometimes assistance is available to employees via the Government’s Access to Work scheme.

However, there may be situations where it is just not possible to make the required adjustments to allow someone to continue to be employed. The decision to let go of an employee in these circumstances must be taken extremely carefully, and only after evaluating all the options and obtaining specialist medical advice. You should always seek expert guidance when trying to accommodate an employee who may have a disability, both to protect yourself and to be fair to them. And do remember – not all disabilities are visible or obvious.

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 me for a confidential, free, initial conversation, with no obligation. 

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