We may all believe that we are legal experts after watching countless hours of Ally McBeal or Law & Order, but Employment Law doesn’t always say what you would expect, doesn’t follow the most logical path and constantly changes. 

How many of the following can you identify as myths or misconceptions?

1  During the recruitment process, women have a legal duty to reveal they are pregnant. 

You may be surprised to know that women are under no legal obligation to reveal that they are pregnant. If you want to avoid getting yourself in trouble, you should refrain from asking questions about whether they are married, have children or plan to have children.

2  A Contract of Employment must be in written form to be legally valid.

This is also not true. It may be a written and signed document, but equally, it may be a verbal agreement. If you entered into an employment relationship verbally, you are still required to provide each employee whose employment is to continue for more than one month with a ‘statement of written particulars of employment’. This must be provided within two months of the employee’s start of employment.

3  Employees with less than two years’ service do not have the right to make a claim for unfair dismissal.

This is where many employers trip up. Irrespective of service, an employee can make a claim for unfair dismissal if the principal reason is, for example, health and safety concerns, whistleblowing, or for exercising certain statutory rights.

4  “Last in first out” is a fair way to select employees for redundancy.

Again, the answer is No. This used to be a common way to select employees for redundancy, but it is not advised to use this as the only selection criteria because it may give rise to age discrimination issues. It is more likely that younger employees will be at a particular disadvantage because they are more likely to have the least amount of service.

You should use a range of criteria, which must all be fair, objective and non-discriminatory. Examples of such criteria are attendance records, disciplinary records, skills, experience and work performance.

5  All employees are entitled to a statutory redundancy payment.

No, only employees with at least two years of continuous service are entitled to receive statutory redundancy pay. If an employee unreasonably refuses to accept the suitable alternative employment you offer, they will lose their right to statutory redundancy pay.

6  You must always suspend an employee if they are being investigated for an allegation of misconduct.

You should consider whether the employee should be suspended on full pay whilst the investigation is being completed. However, this should only be taken in certain cases, for example, if there is a risk that the employee could tamper with evidence or continue to pose a risk to your business.

7  Employees are entitled to have bank holidays off work or to be paid extra for working them.

Employees do not automatically have the right to have the day off on a bank holiday. Equally, there is no obligation on employers to pay the employee time and a half or double time for working on a bank holiday. It may be the case if it is clearly specified in the employee’s Contract of Employment.

8  Employees can book time off for dependants in advance.

The right to take time off for dependants is to deal with emergencies and unforeseen matters involving a dependant. Therefore, employees are not permitted to take time off for dependants to attend an event that they already knew about.

Never underestimate the value of expert legal advice. Call Ellis Whittam today for all the guidance and support you need on HR and Employment Law issues.