Employee Rights: Nine Myths and Misconceptions

Many SMEs don't have the legal know-how of the largest firms, but failing to follow employment law can be a costly mistake that your business probably can't afford to make!

The average employment tribunal award for unfair dismissal stands at just over £12,000, and some awards can reach six figures.

It's definitely in an employer's interests to learn to navigate the ever-changing landscape of employment law, but if you can't afford an HR specialist on your team, it's unlikely you'll be able to draw on that kind of expertise.

As a result, many employers rely on their own basic knowledge that they've picked up through the media, a cursory Google search and conversations with friends or colleagues.

Unfortunately, there's a big chance that a good chunk of this knowledge is far from accurate - particularly given how quickly employment law changes.

Let's debunk some of the biggest myths and misconceptions that surround employee rights in the UK.

Myth:

If an employee has been at your company for less than two years, you can dismiss them at any time.

Reality:

Employees can't claim for unfair dismissal unless they've been working at the company for more than two years.

However, employees can claim for discrimination if they believe they've been sacked due to their race, age, sex or other factors. Check out this more complete list of exceptions to the two years' service rule.

Employees might also be able to claim for wrongful dismissal, which is usually where an employer fails to give the correct amount of statutory or contractual notice.

Myth:

During probationary periods, employees have reduced rights.

Reality:

The law doesn't recognise probationary periods. They have no legal basis, so an employee's start date is the same day as the start of their probationary period.

Also, when workers are on probation, you can't starve them of their statutory rights. In the eyes of a law, they're entitled to the same rights as a standard employee.

That means that once they've been working at your company for a month, you can't dismiss them on the spot - they must receive at least a week's notice.

However, employers can use probationary periods as an HR tool.

You're perfectly within your rights to reduce employee benefits during probation as long as you don't touch statutory rights. For example, you may withhold certain employee benefits until after probationary periods end.

Additionally, employers are able to extend probationary periods - but this option must be written into your contracts, and your employees should be notified of the extension before the original period ends.

Myth:

Parents have the right to flexible working hours.

Reality:

Under recent changes to employment law, all UK employees with at least 26 weeks' service have the right to request flexible working hours. Employers can only reject the request if there is a valid business reason for doing so.

Therefore, no employee has the right to work flexible hours - but they have the right for their request to be properly considered.

Myth:

Employers must give employees paid compassionate leave.

Reality:

UK employees are entitled to a 'reasonable' period of compassionate leave following the death of a 'dependant'. This leave is unpaid, unless otherwise specified in an employer's compassionate leave policy.

Employers don't have to give compassionate leave after the death of a non-dependant, such as a close friend, or a sibling who didn't live with the employee.

It's a good idea to have a compassionate leave policy in place to avoid disputes during these difficult periods.

Myth:

Employees must be provided with a written contract within their first two months of employment.

A verbal contract of employment is sufficient in the eyes of the law.

However, employers must provide employees with a written statement of their terms of employment within two months of their start date. This document includes the basic details of employment, including working hours, pay, holiday entitlement and a job title.

The written statement isn't a contract - it's evidence that there's an employment contract in place, whether verbal or written.

Again, it's advisable to use written contracts in all situations to lessen the chance of future disputes.

Myth:

Employees have no right to privacy in the workplace.

Reality:

Employers are perfectly within their rights to monitor communications in the workplace, whether it's checking up on how employees have been using your company email address or keeping track of which websites staff visit.

However, employers must inform staff about the nature and extent of communications monitoring. Also, only devices partly or fully paid for by the business can be checked.

Employees must also be made of the company's bag searching policy. Searches must be carried out by a member of the opposite sex, with a witness present, and in a way that respects the employee's privacy.

Myth:

Employers can't ask any questions about a candidate's personal life during interviews.

Reality:

This myth sort-of holds true - an employer can't straight-out ask if a candidate is married, has kids, or if they've taken any long term sick leave. However, employers can ask similar questions in ways that relate to the job.

For example, the interviewer might use a question such as: "Do you have any responsibilities which might interfere with regular and dependable attendance at work?" to find out if a candidate's family life might obstruct their ability to do the job.

However, asking these technically legal but potentially inappropriate questions may leave you open to facing discrimination disputes. Tread carefully.

Myth:

Pregnant employees, employees on maternity leave and staff on long term sick leave can't be dismissed.

Reality:

These groups of employees can be dismissed, but only under certain conditions.

For pregnant employees or those on maternity leave, there must be a valid reason for their dismissal that has nothing to do with their pregnancy.

For example, if the employee has consistently performed poorly or is guilty of gross misconduct, an employer can gather evidence to show that the dismissal is fair. This evidence may be in the form or previous formal warnings, attendance records, and historical performance ratings.

Employees on long term sick leave can also be dismissed - but only if the correct procedures are followed. Employers should learn about the employee's condition and speak to them about their recovery and treatment options.

Also, companies should explore all reasonable options to help the employee back into work - either through flexible working, making changes to the workplace, or a phased return to work.

Myth:

Employees guilty of gross misconduct can be sacked instantly.

Reality:

No dismissal should ever be truly 'instant', regardless of the severity of employee misconduct.

Under circumstances of gross misconduct, you'll still need to follow procedure if you don't want to get sued in an employment tribunal.

That means you need to properly investigate the incident, follow your disciplinary procedure, give the employee the chance to put their argument forward, and allow them the opportunity to appeal against your decision.

Of course, you may wish to suspend the employee while the investigation is taking place.

Summary

Once again, we'd like to say that we're not lawyers and this isn't legal advice - instead, this article is an effective starting point for employers and managers who are looking to improve their understanding of employee rights.

Also, this article only relates to UK law - things are probably a little different if you're in another country.

Employment tribunals are a cost many companies can't afford to bear - thankfully, they're almost entirely avoidable.

Brush up on your knowledge of employment law, follow the procedures outlined in your contracts and employee handbooks, and improve communication with your employees - and with a bit of luck, you'll never need to face an employment tribunal!

Want more HR tips? Take a tour through our blog archives for advice on improving staff engagement, tackling employee motivation and much more...