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Employment law myths | 10 common misconceptions that could put your business at risk
Written Charlotte Beedles on 30 October 2024
Employment law is an everchanging and complex field, often misunderstood by employers and employees alike. From misconceptions about employee rights to confusion over proper procedures, these can lead to costly legal disputes and workplace tensions. This blog aims to debunk some of the most common misunderstandings.
1. An employment contract must always be in writing to be legally binding
An employment contract can be verbal or implied as well as written; however, there is a legal requirement that employers provide certain written terms and conditions no later than the first day of employment.
Employers often fulfil this obligation by providing a written employment contract which can include the necessary details, such as hours of work, pay, benefits, and obligatory training.
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2. If an employee is under probation, they can be dismissed without notice
While employees on probation may face easier dismissal compared to those who have been with a company longer, they are still entitled to receive notice pursuant the terms of their contract of employment. However, the statutory minimum notice for employees who have less than one month’s service is nil.
Therefore, if your contracts are drafted in line with statutory notice requirements then, technically, an employee in their probation period with less than one month’s service can be dismissed without notice.
3. Employers must always give one month’s notice to terminate an employee’s contract
The required notice period is determined by the employment contract or statutory law. While some contracts may stipulate a month’s notice, the minimum statutory notice period is based on the length of service and is as follows:
- One week’s notice for employees who have been employed for less than two years but more than one month.
- One week for each year of service after two years, up to a maximum of 12 weeks for employees with 12 years’ service or more.
4. Employees who have been employed for less than two years cannot claim unfair dismissal
While it’s generally true that employees with less than two years’ service typically do not have the right to claim unfair dismissal, there are important exceptions. Employees can claim automatic unfair dismissal if the reason for dismissal relates to pregnancy, health and safety concerns, taking time off for dependants, or being a part-time employee. This list is not exhaustive.
However, it’s worth noting that the government has proposed a significant change to make the right to claim unfair dismissal a day one right, meaning all employees would be able to claim unfair dismissal from the start of their employment, regardless of length of service. This change is not yet in effect, but it would mark a major shift in employee protections, making it essential for employers to stay informed about any updates.
5. Employees who resign voluntarily are not entitled to claim unfair dismissal
Employees who resign may be able to claim constructive dismissal if they feel forced to leave their job due to their employer’s actions, such as a breach of contract or creating an intolerable work environment. In such cases, resignation is seen as a form of dismissal initiated by the employer’s conduct and, as such, the employee can look to bring a claim of constructive unfair dismissal.
Ordinarily, an employee will need to have more than two years’ service to bring a claim; however, please note the comment above about claims that those with less than two years’ service can bring.
6. Suspension is mandatory when investigating an allegation of gross misconduct
Whilst suspension should be reserved for cases of gross misconduct or very serious disciplinary issues, not every case of gross misconduct will call for suspension.
Suspension may be necessary if:
- There is a genuine concern that the employee’s continued presence could pose a risk to the organisation, other employees, or clients;
- There is a risk that the employee might hinder the investigation by tampering with evidence or intimidating witnesses; or
- There has been a significant breakdown in the working relationship between the employee and their manager or team. There are sometimes alternatives to suspension that can be considered that will not necessarily prevent a dismissal on grounds of gross misconduct.
7. Zero-hour contract employees have no employment rights
Employees on zero-hour contracts still have a wide range of employment rights, including the right to receive the National Minimum Wage, protection against discrimination, sick pay (if they qualify) and entitlement to annual leave. However, their hours of work are not guaranteed, which can affect their income and job security.
Zero-hour employees are still technically part-time employees. As such, they are afforded protection against discrimination on account of their part-time status; in other words, they have the right not to be treated less favourably than their full-time counterparts. However, matters are slightly different regarding zero-hour workers rather than zero-hour employees, and advice should be sought to establish their employment status if you’re unsure.
8. Employers can terminate an employee’s contract if they’ve been off sick for an extended period
While it may be possible to dismiss an employee for long-term sickness, it must be handled carefully. There is no definitive timescale that triggers a dismissal and these situations must be assessed on a case-by-case basis.
Dismissing an employee due to illness can lead to claims of unfair dismissal and discrimination if the employee is protected under the Equality Act 2010 (e.g. if the illness constitutes a disability). Employers should consider alternative options, such as adjustments or redeployment, before pursuing dismissal.
9. Employers can select part-time employees for redundancy before full-time employees
Employers cannot discriminate against part-time employees in redundancy situations. Redundancy must be based on objective criteria like skills, experience, or business needs, and part-time employees should be treated equally to full-time employees.
Employers should ensure that the redundancy process is fair and transparent, avoiding any discrimination based on part-time status.
10. All employees are entitled to a statutory redundancy payment
Only employees with at least two years of continuous service are entitled to statutory redundancy pay. If an employee unreasonably refuses suitable alternative employment offered to them, they may forfeit their right to statutory redundancy pay.
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