Rachel Mills, Managing Associate in the Rothera Bray Employment Law Team, clears up ten common myths to help you stay informed and compliant.
1. An employment contract must be signed for it to be legally binding
In an ideal world, a contract of employment should always be signed but if it isn’t and the employee has not raised any concern on a particular clause, it is still a binding document that the employer can rely upon.
2. An employee must complete a probationary period
It’s not a mandatory requirement, but it is helpful for the employer to have a probationary period in place. So they can review matters early on and allow an opportunity for reflection/assessment.
3. Unless the company has confirmed in writing that the probationary period has passed, it hasn’t been passed successfully
No, this is the opposite in that unless the company specifically say that it has not been passed, the employment will be taken as being affirmed.
4. If a company dismisses someone during a probationary period, this can be done without paying any notice pay
It depends on when in the probationary period the employment comes to an end. If the employee is dismissed within the first month, there is no notice pay. However, after that statutory notice will apply which is one week for employment between one month and two years.
5. Employees who have been employed for less than 2 years cannot make any legal claims
Incorrect. Employees require a qualifying service of two years for claims of unfair or constructive dismissal but different heads of claim, for example discrimination, don’t have the same length of service requirement. Always check before any dismissal.
6. Dismissal on the spot is allowed in cases of gross misconduct
Whilst this can occur, this may be high risk decision to take as it is likely to be considered unfair if an employee takes a case to Tribunal. An employer can dismiss without notice in a case of gross misconduct, but we always recommend that procedure is followed.
7. Employees with protected characteristics can’t be dismissed
This is not true. There are protections under the law for those employees with protected characteristics so that for example, they cannot be dismissed or discriminated against due to their disability, but this does not give full immunity from dismissal.
8. If an employee doesn’t turn up to work, the employer can assume the individual has resigned
No. An investigation should be made as to why the employee is absent in the initial instance before any assumptions are made and then the position confirmed in writing. Some employees may have taken leave for absence for a medical emergency and have not been able to call in.
9. During any disciplinary process, the employee has to be suspended
Again, this is not the case. In fact, the employee shouldn’t be suspended as an immediate reaction. This ‘knee jerk’ reaction is not favoured by the Employment Tribunal. Suspension should only occur where the needs of the business or other employees require it.
10. Pay in lieu of notice (PILON) and garden leave are essentially the same thing
No, these are very different things. In both scenarios, it means the employee’s employment is coming to an end. Paying the individual in lieu means their employment ends immediately. Whereas putting the employee on garden leave, means the individual remains an employee and bound by the contractual clauses until the termination date.
Contact our Employment Law team on 03456 465 465 or email enquiries@rotherabray.co.uk if you require legal services as an employer or employee.
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Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers.
