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Gemma Cook, head of Glanvilles Employment Team dispels some of the most common employment law myths.
1. No written employment contract means there is no employment contract
Employers are obliged to provide a written statement of employment particulars within 4 weeks of an employee commencing employment. Failure to do so can result in the employee being entitled to bring a claim for up to £1,800. If there is no written contract the terms of the employee's contract will be governed by any terms offered verbally or in correspondence. Terms can also be implied in to the contract based on your conduct.
2. Gross misconduct means that you can sack an employee on the spot without following any procedure
Very rarely would it ever be appropriate to dismiss an employee on the spot. The safest course of action when an employee is suspected of gross misconduct is to suspend the employee immediately, carry out an investigation and then invite the employee to a disciplinary meeting so that they can put forward their side of the story. If you do not follow a fair procedure the dismissal may be found to be 'unfair' by a Tribunal despite the reason for the dismissal.
3. You can sack anyone with less than 2 years service for any reason
The general rule is that an employee cannot claim unfair dismissal if they have been employed for less than 2 years (1 year if commenced employment prior to April 2012). There are however 20 specific reasons (such a dismissal for raising health and safety concerns) for which unfair dismissal can be claimed as soon as the employee starts work. There is no qualifying period for discrimination claims and it is always advisable to follow a fair procedure when dismissing any employee (regardless of length of service) in order that the reason for the dismissal can be explained to the employee.
4. Payment of own tax and NI means that someone is self-employed
Whether someone is employed or self-employed depends on the relationship between the parties and is not determined solely by reference to the method by which tax is paid. If the employer has a high level of control over the worker they may in fact be an employee.
5. You cannot give a bad reference
Employers are under an obligation to give an accurate and truthful reference. If for example an employee has a disciplinary record that that has been fully recorded and documented this could be mentioned. However most employers decide, to avoid any problems, that they will only give a basic factual reference.
Making mistakes when it comes to employment law and following incorrect procedures can be costly. You may find yourself in the Employment Tribunal having to pay legal fees to defend a claim that could have been prevented. Most employers act in good faith when making decision relating to employees and do not always realise the procedural 'hoops' that you need to jump through. If in doubt you should obtain advice prior to making a decision as it is much easier to try and prevent a claim.