When dealing with the complex area of employment law, it’s important your organisation isn’t caught out by various myths.
Check out XpertHR’s exclusive myth-busting guide to some common employment law questions. Click on the links to be taken to XpertHR’s FAQs page for the answers.
1. Myth – An employer can reject a candidate for a maternity-leave-cover role on the basis that she is pregnant and would not be able to work the full cover period
Fact – European case law makes it clear that failing to recruit a woman on the grounds of pregnancy, even if the contract is for a fixed term only, constitutes unlawful sex discrimination and cannot be justified. The Equality Act 2010 also makes it clear that if an employer refuses to offer a woman employment because she is pregnant, this will amount to unlawful pregnancy and maternity discrimination.
More tricky maternity issues:
- Can an employer contact an employee on maternity leave to ask if and when she intends to return to work?
- If an employee does not return from maternity leave, does the employer have to pay her in lieu of the annual leave that she accrued during maternity leave?
- If an employee does not intend to return to work after maternity leave is she required to give notice?
2. Myth – There is a particular period of time after which it is safe for a transferee employer to vary the contracts of its transferred employees
Fact – It is not possible to give guidance about a period of time after a transfer when it will be safe for the transferee to vary the transferred employees’ contracts. Although there is likely to be a time when the link with the transfer can be treated as no longer effective, this will vary from case to case and has to be assessed in the light of all the relevant circumstances.
More tricky TUPE issues:
- Under the TUPE legislation, where an employee has a bad attendance or disciplinary record, is the transferee obliged to accept the employee?
- Where a transferee has no need for the employees transferred to it under TUPE, can the selection pool for redundancy include only the transferred employees, or must it also include the transferee’s existing workforce?
- Is a transferee able to rely on assurances from the transferor that it carried out the necessary checks on the transferred employees’ immigration status, or must it carry out its own checks?
3. Myth – An employee does not begin to accrue service for the purpose of statutory rights until completion of any probationary period
Fact – Probationary periods have no meaning in law, so the existence of a probationary period will not affect a new employee’s length of service or statutory employment rights. Statutory rights – including the right not to be unfairly dismissed – that are dependent on a minimum period of service will be based on length of service from the employee’s original start date, not from the date that marks the end of the probationary period.
More tricky probation issues:
- If an employee whose probation period has been extended due to poor performance announces that she is pregnant will the employer be obliged to confirm her in the post?
- Where an employer stipulates a probationary period for new employees must it wait until the end of this period before dismissing an unsatisfactory probationer?
4. Myth – No employment contract exists if there is nothing in writing
Fact – Even verbal agreements are binding. Obviously, where terms are agreed orally, the situation is ripe for dispute at a later date, and it therefore makes sense for employers to ensure that the terms agreed are put in writing.
More tricky contract issues:
- Where an individual has accepted an employment offer can the employer withdraw it where, for example, a freeze on recruitment has subsequently been put in place?
- Where an individual accepts a job offer but subsequently accepts another offer from a different company will the first employer have any form of redress?
5. Myth – Employees have the right to have bank holidays off work, or to be paid overtime for working them
Fact – Although they are widely observed throughout many parts of the UK, employees are not automatically entitled to a day off or extra pay on a bank holiday. Any such right depends on their contract of employment. When statutory minimum holiday rights were introduced, workers were entitled to only four weeks’ leave per year. With a view to making sure that all workers have four weeks’ holiday “plus bank holidays”, this was increased to 5.6 weeks – a rise from 20 days to 28 days for a standard five-day-a-week worker. However, there is no statutory right for paid holiday to be taken on bank holidays themselves.
More tricky bank holiday issues:
- Can Christian employees refuse to work on the bank holidays that are aligned to a Christian festival such as Easter?
- How should an employer deal with an employee who refuses to work on a bank holiday?
- If a part-time or shift-working employee is not scheduled to work on a bank holiday, is he or she entitled to an additional day’s holiday?
6. Myth – Where an employee is dismissed for gross misconduct there is no need to pay in lieu of accrued holiday
Fact – An employee who is dismissed part way through a holiday year is entitled to pay in lieu of untaken statutory holiday that has accrued up to the date of termination, under the formula set out in reg.14(3) of the Working Time Regulations 1998 (which applies unless a relevant agreement specifies the sum that will be paid). This is the case even if he or she has been summarily dismissed for gross misconduct. The individual’s contract may, however, specify that any contractual holiday over and above statutory entitlement will be forfeited if he or she is summarily dismissed.
More tricky termination issues:
- Will an employee accrue holiday during his or her notice period?
- If an employee receives a payment in lieu of notice, will his or her annual leave entitlement accrue up to the termination date, or the end of the notice period?
7. Myth – The expression “summary dismissal” for gross misconduct can be taken literally
Fact – The dismissal of an employee without notice on grounds of gross misconduct will ordinarily be held to be unfair if the evidence reveals that the employer did not first inform the employee of the allegations, thoroughly investigate them, give the employee an opportunity to refute them, and allow the employee to appeal. Employers should, therefore, follow their disciplinary procedure before summarily dismissing an employee for gross misconduct.
More tricky gross misconduct issues:
- If an employer dismisses a pregnant woman for gross misconduct must it still pay her maternity pay?
- What can an employer do where it suspects that an employee has committed an act of gross misconduct, but has no concrete proof?
8. Myth – A worker can be accompanied by a union official at a discipline or grievance hearing only if the employer recognises the relevant union
Fact – Under s.10 of the Employment Relations Act 1999, workers have the right to be accompanied at a disciplinary or grievance hearing by a companion of their choice who is a full-time trade union official, a lay trade union official or another of the employer’s workers. There is, however, no requirement for a trade union official accompanying a worker to be from a recognised trade union. If the worker is a member of a non-recognised trade union, he or she may be accompanied by an official from that trade union. Indeed, there is no necessity for the worker to be a member of any trade union to be accompanied by a trade union official, although, in practice, trade unions rarely support workers who are not their members.
More tricky right to be accompanied issues:
- What is a “reasonable” request by a worker to be accompanied at a disciplinary or grievance hearing?
- Can a worker and union representative agree that the representative will answer all questions put to the worker at a disciplinary hearing?
9. Myth – An employee whose fixed-term contract comes to an end cannot bring a claim for unfair dismissal
Fact – A fixed-term contract will terminate automatically at the end of the fixed term, and at common law there will be no dismissal and no cause of action for breach of contract. However, for the purposes of a claim for redundancy pay or unfair dismissal, the expiry of the term will constitute a dismissal. In the event of a claim for unfair dismissal, the employer would have to be able to demonstrate what the reason for the dismissal was, that it was substantial, and that it acted reasonably in dismissing the employee for the reason given.
More tricky fixed-term contract issues:
- Can an underperforming employee on a fixed-term contract be dismissed before the end of the fixed term?
- Where an individual has been employed on a 12-month fixed-term contract to cover maternity leave, can the employer terminate the contract early if the woman on maternity leave decides to return early?
10. Myth – The 10 keeping-in-touch days for employees on maternity, adoption or additional paternity leave and 20 shared-parental-leave-in-touch days for employees on shared parental leave are pro rated for part-time employees
Fact – The legislation does not make provision for the 10 keeping-in-touch days or 20 shared-parental-leave-in-touch days to be pro-rated for part-time employees. For example, an employee on maternity leave who normally works only a three-day week is still entitled to 10 keeping-in-touch days.
More tricky keeping-in-touch days issues:
- Can an employee work from home on his or her keeping-in-touch days?
- Must keeping-in-touch days be taken after the child’s birth, or can they be taken prior to the birth?
For the answer to hundreds of employment law questions, visit the XpertHR FAQs page.