9 June 2008

The longest day of the year, and the start of summer, is on 21st June. Thousands are expected to descend once more on Stonehenge to celebrate the Summer Solstice. A place steeped in mystery and enshrined in the legends of King Arthur. It is said that Merlin used his powers to transport the giant stones from Ireland and re-erected the monument as a memorial to 3000 nobles who had died in battle. Less magical though the workplace is, it is not without its own fair share of myths.

Employment law is not always fully understood. Both employers and employees can sometimes misinterpret legislation. Here’s the underlying truth of some common misconceptions that have come about over the years.

You can’t dismiss an employee who is pregnant
It is correct, that if you dismiss a woman because she is pregnant or on grounds of maternity, it will be automatically unfair and an act of direct sex discrimination. However, this does not mean that you can’t terminate her employment on other grounds during her pregnancy, or whilst she is on maternity leave, although care will need to be taken to avoid the risk of claims. In particular, if an employee is on maternity leave when a redundancy situation arises, she must be given priority over other employees in respect of an offer of suitable alternative employment.

“I don’t have a contract”
This is isn’t exactly the case. A contract of employment consists of terms from a number of sources, one of which will usually be a written statement or “contract”. However, there does not need to be a written contract for there to be an employment relationship. Even if nothing has been confirmed in writing, an oral agreement can form a legally binding contract. Alternatively, one can be implied through the conduct of the parties. Nonetheless, employers are required to provide a written statement of main terms, in accordance with Section 1 of the Employment Rights Act 1996, within 2 months of the employee’s date of joining. Those who don’t, face an additional claim for compensation of up to 4 weeks’ pay in the event that the employee is successful in bringing another claim.

The employee must sign the contract for it to be legally binding 
This is another common fallacy. Generally speaking, an employee who is working and getting paid will be deemed to have accepted the terms of the contract, irrespective of whether or not the contract has been signed. This fact is especially significant when an employer is seeking consent to a contract variation. If an employee objects to the new terms, a failure to sign the contract will not, on its own, suffice. One possible option for an employee in this scenario is to make  their objection clear and “work under protest”, whilst pursuing a claim for breach of contract. 

You have to be in a minority to bring a discrimination claim
Not true. Individuals are protected from discrimination on grounds of sex or race. Sex discrimination covers both males and females. Race discrimination includes colour and nationality. Therefore, white males are afforded the same protection as all other employees and can bring a claim if, for these reasons, they have been treated less favourably. The Equal Pay Act also applies to both sexes, so a man  has just as much of a right to bring an equal pay claim if he is on less pay, or reduced benefits, compared to a woman doing the same job or work of equal value.

Employees have a right to see their personnel file
This may be the case but it is not necessarily so all of the time. Under the Data Protection Act 1998 an employee has a right to access their personal data. However, in order for a manual personnel file to fall within the scope of the Act it must be structured in such a way that specific information relating to that individual is readily accessible. Personnel files where documents are collated in no particular order, for example chronologically, will not be covered. In these circumstances access to the information held on the file is a matter of discretion for the employer.

An employee on a fixed term contract has no right to redundancy pay or protection from unfair dismissal
False. The non-renewal of a fixed term contract constitutes a dismissal for employment law purposes. The employee will be able to bring a claim for unfair dismissal if he/she has one or more year’s continuous service. To defend a claim, the employer must be able to show that it had a fair reason to dismiss, and that it had acted reasonably in dismissing the employee. This will involve following a fair procedure and complying with the statutory dismissal procedure. If the contract is not renewed on grounds that constitute a redundancy situation, the employee will be entitled to a statutory redundancy payment, provided they have been employed for at least two years. Historically it was possible to include waiver clauses to contract the employee out of these rights, but not any more.

These are just a few of the myths surrounding HR that a Buddy subscription can help you to dispel. As a full member you will get access to a wide range of resources, including easy to read guidance notes so you can uncover the truth. If you want to check the legal status of any your legendary practices you can post a question in the Discussion Zone or, if you have a myth that you want to share, email buddy@clarkslegal.com.