When Alan Sugar quizzed a potential winner of The Apprentice
about the arrangements she was making for her childcare there was
uproar. Some people thought what he had done was illegal and many
commented that they would never have dared do the same. But he was
within his rights and the fact that some in the industry thought
otherwise highlights the number of employment myths that abound in
the IT industry. Here Anna West and Adam Rice, employment law
specialists at solicitors
Travers Smith LLP, put
us straight.
Family plans
Myth: Asking about family plans at a job
interview is illegal
Reality: It is not illegal to ask about a
candidate's family, or plans for one, at a job interview. However,
recruiters should tread carefully. If an employer refuses to employ
someone because of their family duties, this would be sex
discrimination, and the candidate could use the interview questions
as evidence to support their case. Instead, questions should
objectively relate to the job requirements and should be asked of
all candidates. For example, if they would be OK with travelling
away from home or performing regular overtime.
Cost: A sex discrimination claim can be quite
costly with compensation uncapped and including a component for
injury to feelings of between £500 and £25,000. Aside from the
financial costs, a claim involving sex discrimination could be
damaging to an employer's reputation.
Written contract
Myth: Employees have no rights without a
written employment contract.
Reality: Even without a written contract,
employees have certain legal rights including:
• Minimum notice (after one month's employment - see below)
• The right to claim unfair dismissal (after one year's
employment)
• Protection from discrimination or harassment on grounds of sex,
race, disability, religion, sexual orientation or age.
Cost: An employee who is dismissed without
notice can claim pay and benefits for the notice period. If the
dismissal was unfair, the employee can claim further compensation
of up to £70,000. Damages for discrimination or harassment are
uncapped, and include an award of £500 to £25,000 for injury to
feelings.
Probationary period
Myth: Employees have no right to notice during
their probationary period.
Reality: After one month's employment, all
employees are entitled to at least one week's notice (even if the
contract provides for less). This minimum notice period increases
by one week for each full year of service, to a maximum of 12
weeks. However, if the contract provides for more than the minimum
notice then the longer contractual period will apply.
Cost: Employees who are dismissed without
notice can claim pay and benefits for the notice period (except in
cases of gross misconduct).
Sick leave
Myth: Employees on long-term sick leave should
be left well alone.
Reality: Although employers should not put
undue pressure on employees who are on long-term sick leave, they
are entitled to find out more information about the illness. This
would include consultation with the employee and, with permission,
writing to the employee's GP (and any specialist) to find out about
the employee's condition, the prognosis and whether there is
anything the employer can do to help facilitate their return (such
as reduced hours). In addition, the employer might want to invite
the employee to be examined by an independent specialist. Employers
should not make any decision about dismissal until they have
explored the situation fully.
Cost: An employee who is on long-term sickness
absence may be protected under employment laws as a disabled person
(whether the illness is physical or mental - for example,
depression). A disabled employee who is unjustifiably dismissed, or
otherwise unfavourably treated, can claim unlimited compensation,
including a component for injury to feelings of £500 to £25,000.
The employee may also have an unfair dismissal claim (with
compensation of up to £70,000).
Offensive jokes
Myth: Employees can only claim harassment if
offensive jokes are directed specifically at them.
Reality: An employee who is offended by jokes
or office banter about sex, race, sexuality, religion or age can
claim harassment, even if the jokes or banter were not directed at
them. It is irrelevant whether or not the perpetrator meant to
cause offence - it is the employee's individual perspective that
matters. Employers are liable for harassment by their employees at
work and at work-related events off site (eg an office party or
team building event). However, employers can defend claims if they
did all they reasonably could to prevent employees from harassing
their colleagues, for example by having an effective equal
opportunities policy that is consistently enforced and in which all
employees are trained.
Cost: Employees who suffer harassment at work
can claim unlimited compensation, including an award for injury to
feelings from £500 to £25,000.
Personal privacy
Myth: Employees have no right to privacy in the
workplace
Reality: Employees do have a right to privacy
in the workplace. This means there is a limit to how far employers
can go to keep tabs on their staff. Although some level of
monitoring is reasonable, perhaps to ensure the quality of work,
employers must strike a balance between the needs of the business
and employees' rights to protect their private lives. In general,
any interference with privacy must be no more than is reasonably
necessary, and the employer should have good reasons for doing so.
Employers should also make sure employees are aware of any
workplace monitoring, by having a clear policy on when this will
occur that is clearly communicated to all staff.
Cost: Employers who engage in unlawful
monitoring could face claims of unfair dismissal (with compensation
of up to £70,000), plus unlimited damages (and potential fines)
under data protection laws.
Child care and part-time
work
Myth: Employees with young children have the
right to work part-time.
Reality: Employees with young children do not
have an automatic right to work part-time, but they have a right to
ask to work flexibly (after six months' service), for example,
working part-time. Employers do not have to agree to such requests,
but they must consider them carefully by following a set procedure
and only refusing them on specified grounds (these might cover
additional costs or impact on performance). In addition, refusing a
flexible working request from a female employee may amount to sex
discrimination, on the basis that women are more likely to be
primary carers. Refusal can be objectively justified, but the
employer would need to have good reasons for this and, ideally,
evidence to support it.
Cost: Failing to follow the set procedure could
cost the employer up to £2,640 in compensation, but a sex
discrimination claim for refusing a flexible working request could
cost a lot more, as compensation is unlimited.
Maternity leave
Myth: Employees who are pregnant or on
maternity leave cannot be dismissed.
Reality: They can, but if the reason for the
dismissal is related to their pregnancy or maternity leave this
amounts to sex discrimination and unfair dismissal. Sometimes an
employee is dismissed for a fair and non-discriminatory reason, but
a lack of evidence to back this up leads an employment tribunal to
believe the pregnancy/maternity leave was the real reason for
dismissal. Employers should document clearly the reason for
dismissal (such as poor performance) and ensure that other
paperwork (appraisals, warning letters and the like) supports
this.
Cost: Employees who are dismissed unfairly can
claim compensation of up to £70,000. Compensation for sex
discrimination is unlimited, and includes an award for injury to
feelings from £500 to £25,000.
Gross misconduct
Myth: You can sack an employee on the spot for
gross misconduct
Reality: Employers planning to dismiss an
employee, for whatever reason, must follow a set statutory
procedure. This applies to all dismissals, including dismissals for
serious misconduct, such as theft or fighting. Broadly, the
employer must set out the alleged misconduct in writing, invite the
employee to a meeting to discuss it and give the employee the
chance to appeal. This statutory procedure is a minimum, so the
employer should also ensure that it has fully investigated the
situation and allowed the employee the opportunity to respond to
the allegations.
Cost: Failure to follow the statutory dismissal
procedure makes dismissal automatically unfair (for an employee
with at least one year's service), and the employee can seek
compensation of up to £70,000.
Dismissing over 65s
Myth: You can dismiss an employee who is 65
without claims.
Reality: Employers are allowed to retire an
employee at or above 65 (or the employer's normal retirement age if
this is later). But to avoid claims, employers must follow a
statutory retirement procedure. This means they should notify the
employee in writing six to 12 months in advance of their retirement
and tell them they can ask to work for longer. If the employee does
ask to work beyond the retirement date, the employee has to
consider the request seriously and meet with the employee to
discuss it.
Cost: If the employer does not go through all
these steps, the employee will have an age discrimination claim
where the compensation could be unlimited and an unfair dismissal
claim with compensation of up to £70,000.
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