The mythology of employment law

July 28 2008, 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 there were many in the channel who commented they would never have dared do the same.


July 28 2008


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 there were many in the channel who commented 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 industry.



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.



Anna West and Adam Rice  are specialists in employment law at solicitor firm Travers Smith LLP




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