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Employment law: Examining the 10 most common myths

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Employment Law is a constantly evolving and changing area of law, with enough complexities and challenges posed on a day to day basis, without needing any further confusion in the form of the many myths that surround its common areas. We take a look at what we believe are the 10 most common myths surrounding the various facets of Employment Law and attempt to ‘clear up’ some of the ambiguity they create.

An Employee with children has the right to work flexibly, and all applications for such must be accepted.

From 30 June 2014, any employee with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason; they do not have to have children in order to do so. However, the fact of entitlement to make an application does not mean that there is an obligation on the employer to accept the application.

The employer has a three-month time-scale in which to consider the application and inform the employee of the outcome. The employer must deal with such an application in a reasonable manner and may only refuse the request on one (or more) of the 8 statutory reasons for the refusal of the request.

At first glance, the process may appear to some to be designed to make it extremely difficult for an employer to refuse an application, possibly giving rise to the myth that there is a right to work flexibly in all circumstances. However, a thorough and even-handed process, in conjunction with a reasonable and well thought out case for refusal, will enable an employer to legitimately refuse to grant the employee flexible working, should this not suit the needs of the school at the time.

No employment contract exists if there is either no contract or the contract has not been signed by one or both of the parties.

This is usually a common misconception on the part of the employee. Many times an employee will seek to rely on the fact that ‘I haven’t signed my employment contract’ as a way of trying to assert that the provisions of it which are perhaps unfavourable to them are therefore unenforceable. Of course, in the majority of cases, this is a complete nonsense.

Even an oral agreement can be binding, and should an employee regularly come to work, perform the obligations they are required to perform, and in return be paid by the employer, then it is highly unlikely that the employee would be able to successfully assert that they do not have a contract of employment.

Employers should, however, note that there is an obligation under Section 1 of the Employment Rights Act 1996 to provide a statement of the terms of employment.

You have to wait until an employee has exhausted their sick pay before you can start to tackle their absences

Most employee absences issues can be managed informally without the need to escalate matters so that formal procedures and warnings become necessary. However, employers can deal with employees formally when their absence levels are at such an unacceptable level that they disrupt the school.

Employers that have sickness absence policies which provide a trigger point, after which absences, or series of absences, will be dealt with formally in accordance with their procedures should use these mechanisms to their advantage.

In a meeting with an absent employee, an employer should try to establish the reason for the absence, in cases of long-term absences when the employee is likely to return to work and in the cases of short-term or intermittent absences when the employee is likely to show improvement in attendance.

This process can be undertaken even though an employee is still in receipt of either Statutory Sick Pay or any relevant Occupational Sick Pay that they may be entitled to.

Employees who are pregnant or on maternity leave cannot be dismissed

An employee who is pregnant or on maternity leave is not exempt from dismissal. However, it is important that an employer goes about this in the correct manner to show that there was a genuine reason for the dismissal, and the dismissal was not because the employee was pregnant or on maternity leave.

It would be automatically unfair to dismiss an employee or to select her for redundancy when the reason, or principal reason for the dismissal, or selection for redundancy, is connected to her pregnancy or maternity leave. If an employer did this, the employee may have a claim for pregnancy and maternity discrimination as the employee may be able to show that she has been treated unfavourably because of her maternity leave.

A pregnant woman is also protected from being subjected to a detriment for a reason connected to her pregnancy or maternity leave. Again, if an employer does this, the employee would have a claim for pregnancy and maternity discrimination.

It is also important to note that, in the event of redundancy, an employee on maternity leave should be given ‘first refusal’ of any alternative jobs in the event that her job is made redundant.

An employer who is contemplating dismissing an employee who is pregnant or on maternity leave must ensure that the reason for dismissal is unconnected to the employee’s pregnancy or maternity leave. Employers should ensure that the reasons for dismissal are fair and well documented; otherwise, they may be a risk for claims of discrimination and automatic unfair dismissal.

You have to undertake DBS checks every 3 years

A DBS certificate is only truly accurate on the day it was issued as it shows a snapshot in time. As such, a DBS check has no official expiry or renewal date.

Having said this, it is recommended that DBS checks are renewed every 3 years unless the employee is signed up to the DBS update service. Since June 2013, employers carrying out criminal record checks have been able to subscribe to the online update service provided by the DBS. This update service enables employers to check that DBS certificates of employees are up-to-date. An employer can now (with the employee’s consent) check that the information on their DBS certificate remains valid. It is up to an employer to decide if and when a new check is required; usually, this will be when employees are applying for a new position.

When someone suffers from a disability and they are off sick they are ‘untouchable’

Employers are often wary when tackling absences with employees who suffer from a disability, partly because of fears about a potential discrimination claim being made against them. However, whilst it is advisable to be tactful and sensitive about the way an employer approaches such a situation, these employees are certainly not ‘untouchable’.

Discrimination legislation makes it clear that those who suffer from a disability should not be treated less favourably because they are disabled, or because of something arising from their disability (i.e. taking more days off sick). In addition, a particular practice that an employer puts in place should not put a person with a disability at a particular disadvantage when compared to others. Where an employee is disabled, there is also a duty on employers to consider ‘reasonable adjustments’ to enable that disabled person to work or continue to work.

An employer could deal with such employees by making a concerted effort to identify disability-related absences. Once this has been established, it is often a good idea to obtain medical advice, possibly from an occupational health provider, about an employee’s disability and any impact it may have on their sickness absence record. Such an expert will often also provide recommendations for adjustments that the employer could make to help that person back to work. It will then be for the employer to look at the recommendations and decide, by looking at its resources, for example, whether they are able to make that adjustment (i.e. whether it’s proportionate, and whether they can afford to do so).

Once an employer has considered all the possible reasonable adjustments, if they have not been successful in enabling the employee to resume working, the employer is entitled to dismiss the employee.

Where an employee is dismissed for gross misconduct there is no need to pay in lieu of accrued holiday

There is a lot of scope for confusion when considering what an employee should be paid when they are dismissed, especially when they are dismissed for something so serious as to constitute gross misconduct.

An employee is entitled to be paid for accrued but unused annual leave to the date that they are dismissed. This is even the case where they are dismissed for gross misconduct. The reason behind this is that the employee who has been dismissed has ‘built up’ they’re entitled to these days, and so they must be paid for them.

It is important not to confuse this with notice pay. If you dismiss for gross misconduct, an employer is entitled not be pay the employee for their notice period on the basis that they have done something so serious that the employment relationship can come to an end immediately.

The expression “summary dismissal” for gross misconduct can be taken literally

Even in situations where an employee does something so serious as to warrant dismissal without notice, on the grounds of gross misconduct, it is vital that an employer still follows a ‘fair process’ before dismissing that employee. Do not be fooled by the words ‘summary dismissal’ into thinking that an employer is able to perform a shortened dismissal process, as the dismissal may be deemed as being unfair, even where the employer has a potentially fair reason to dismiss.

An employer should always follow their own disciplinary procedure before dismissing an employee. This should detail all the necessary steps for informing the employee of the allegations, investigating the allegations, giving the employee an opportunity to contest them, and allowing the employee to appeal against any sanction imposed.

It may be that this process can be done quite quickly, but it’s important that every step is done correctly. It is also good practice to ensure that everything is recorded in writing (i.e. the invitation letters, decision letters and minutes of the meetings).

A worker can be accompanied by a union official at a disciplinary or grievance hearing only if the employer recognises the relevant union

Employers can be forgiven for thinking that, if they do not recognise a particular trade union, then a worker cannot be represented at a disciplinary or grievance hearing by someone from that union. However, this is not the case.

A worker has the statutory right to be accompanied at a disciplinary or grievance hearing by a companion of their choice. This can be a colleague, a trade union representative or an official employed by a trade union.

Therefore, there is no requirement that an employer recognises the trade union that represents the employee.

An employee whose fixed-term contract comes to an end cannot bring a claim for unfair dismissal

For the purposes of unfair dismissal and redundancy, the expiry of a fixed term will count as a dismissal, and subject to the employee having the qualifying service needed for an unfair dismissal claim, they will be eligible to make a claim.

If an employee were to make a claim, it is not enough for the employer to simply say that they were a fixed term employee and their contract came to an end. An employer would have to be able to show that the dismissal falls within one of the 5 potentially fair reasons (i.e. conduct, capability, redundancy, illegality and some other substantial reason), it acted reasonably in dismissing the employee for the reason given and it followed a fair process in dismissing the employee.

It is therefore important that employers look carefully at how they use fixed-term contracts as they will not necessarily protect them from unfair dismissal claims.

For more information, please contact our Employment & HR team.

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