Employment Law MythsWith regular changes to legislation employers often get confused about what they can and can’t do. With that in mind, here are my Top Ten common myths about employment law.

1. It’s illegal to give a ‘bad’ reference

As an employer your obligations are to be accurate and truthful in a reference, not giving an overall misleading impression. So you can’t make unsubstantiated negative claims, but if the individual has a disciplinary warning on their record, or has performance concerns which are fully documented then it’s fine to mention those.

To avoid problems many employers prefer to have a policy of only giving basic factual references. I think that’s a shame, as these aren’t really useful, and the policy may penalise staff who deserve a glowing reference. You could consider providing very basic references in cases where you don’t feel able to give a good one but giving more information if you feel you can.

2. It’s illegal to ask about childcare arrangements when recruiting

Well it’s not a good idea, but it’s not specifically illegal. What you mustn’t do is discriminate, and asking about childcare is likely to be seen as discriminatory, because it’s very unusual to ask men.

You should instead get into the habit of identifying what you really need to know to find the best candidate and working out appropriate ways of asking for that information. For example, if it’s a job that involves overnight travel, you don’t need to know who would look after the children. You just need the candidate’s confirmation that they are available on the terms you require. Phrase the questions right and you can usually find out what you need to know.

3. If you make someone redundant and you are in a position to recruit again within two years, you must offer them the job

You do need to be careful about claims for unfair dismissal if employees have any reason to think their redundancy isn’t genuine. There is a time limit of only three months to claim though, so as long as it’s clearly a genuine redundancy at the time, if things change later, you can safely recruit. If the individual was selected for redundancy on the basis of poor performance or sickness record, you may prefer not to re-employ them and are safe not to do so.

4. It’s illegal to make someone on maternity leave redundant

If there is a genuine redundancy situation when someone is on maternity leave, you do not have to wait until she returns, or exclude her. You should involve her in consultation, keeping her fully informed, but you can proceed with your redundancies as long as you are careful and ideally take advice.

Women on maternity leave do get some extra protection in that if there is a suitable alternative vacancy available, they must be offered it directly. This is a rare ‘positive discrimination’ element of employment law that catches lots of people out.

5. No contract in writing means no contract

Employers are obliged to provide a written statement of particulars of an individual’s employment within two months of starting employment. But not issuing them with a contract doesn’t make any difference to their employment rights, and terms and conditions verbally offered or detailed in other correspondence may be enforceable.

6. Gross misconduct means you can sack on the spot

Gross misconduct usually results in ‘summary dismissal’ without notice. That’s fine, if the offence is serious enough, but what isn’t fine is making that decision on the spot and not giving the individual any opportunity to respond to allegations.

Instead you should suspend the employee immediately, then write inviting them to a disciplinary hearing, setting out the allegations and giving them an opportunity to respond and be accompanied by a colleague or trade union official. Claims for unfair dismissal are more likely to be successful if a fair process wasn’t used, so however serious the misconduct, you shouldn’t skimp on a proper procedure.

7. You can sack anyone with less than a year’s service for any reason

It’s true that employees who have less than a year’s service in most cases can’t claim for unfair dismissal. However, there are more than 20 specific reasons for which unfair dismissal can be claimed from day one, mostly involving discrimination or asserting a statutory right.

8. Once someone’s probationary period is over they are ‘safe’ and you can’t sack them without a lengthy procedure

Probationary periods really mean absolutely nothing in law. They are really just a useful mechanism to prompt the employer into reviewing performance and making a decision about the employee’s future. In fact if someone isn’t working out in the job, you can dismiss them during the first year just as easily as during a probationary period. The only thing that often changes after probation is the notice period.

9. Employees have the right to bank holidays off

Although bank holidays are often referred to as ‘statutory’ holidays, there’s in fact no obligation to grant them. Your staff must get the basic minimum holiday entitlement of 5.6 weeks each year, but how and when holiday is taken is between you and your employees.

10. As long as you get someone to do their own tax, they are ‘self-employed’ and you don’t have to worry about employment rights

Employment status is defined by the nature of the relationship between the two parties and isn’t something you choose. So even if you call it ‘self-employment’ and don’t deduct tax through a PAYE system, you may still find the employee is entitled to full employment rights including holiday, protection from unfair dismissal and so on.

So how many did you get right? Employers usually act in good faith, but making assumptions as to what the law is can be costly. If in doubt, take some decent advice before acting. You need to protect yourself and may find it’s easier to get it right than you think.