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Here are the top ten employment myths we've come across while advising small businesses on human resources issues.
Myth one: Employers can retract a job offer unconditionally if the employee has not started working for them yet
Fact: A contract of employment may be formed between the parties even if the individual has not yet actually started work. If the employer wants to rescind the job offer before employment has started he will have to end it by giving notice to the individual.
Myth two: Until the probation period is successfully completed, the person is not a proper employee
Fact: It is not the passing of a probation period which confirms the individual as an employee. Continuous service begins from day one of employment (or day one of previous employment if employment was transferred) and so an individual could have thee or six months’ service by the time they complete their probation period, which obviously matters for employment rights, which carry a length of service requirement.
Myth three: If an employee has not signed their contract, employers can vary the terms as he wishes
Fact: Where an employee hasn’t signed their contract of employment they may have agreed to the terms and conditions in a different way, such as starting to carry out the work identified in it. In these circumstances it would be a breach of contract if the employer varied the terms, for example, if the employer does not let them have company sick pay.
Myth four: An employee’s continuous service resets after moving roles within a company
Fact: Moving roles within the same company does not ‘reset’ an employee’s continuous service. Although after the move the employee may be in probation, this does not mean that their previous service for the same employer can be discounted.
Employers should be careful when dismissing if the employee already has two years’ continuous service, as even though the employee may be in probation they can still make an unfair dismissal claim which requires at least two years’ service.
Myth five: Employees have the automatic right to receive bank holidays off
Fact: Employees have no statutory right to take bank holidays off – their specific rights to taking holidays including bank holidays should be set out in their contract of employment. Similarly, there are no requirements that pay for working a bank holiday is any greater than working a normal day unless outlined in the contract.
Myth six: Employees can book time off for dependants in advance
Fact: Employees cannot plan and book time off for dependants, as it can only be taken in cases of unforeseen emergencies involving a dependant. If the employee knows about the event in advance, it is not an emergency and they should arrange alternatives eg. annual leave or taking time off in lieu.
Myth seven: Employers cannot vary any contractual terms of new staff acquired through TUPE
Fact: Although The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) offers employees a lot of protection, once they transfer over to the new employer that does not mean that their contracts cannot be changed. In order to vary a contract, the new employer must have an 'economic, technical or organisational reason’ which entails changes in the workforce.
Myth eight: A worker cannot be accompanied by a trade union representative at formal meetings unless the employer recognises the union
Fact: Workers have a statutory right to be accompanied at formal discipline and grievance hearings by a trade union official, and there are no requirements regarding whether the specific union has been recognised by the employer or not. Alternatively, a worker can be accompanied by a colleague.
Myth nine: When an employee is dismissed for gross misconduct they are owed notice pay
Fact: As a general rule all employees with at least one month’s continuous service are entitled to a notice period or a payment in lieu of notice (PILON) if there is a contractual clause to that effect. However, gross misconduct dismissals do not attract a notice period, nor pay in lieu, so notice pay is due.
Myth 10: Employees are always due a redundancy payment
Fact: Only employees with at least two years of continuous service are due a statutory redundancy payment if their post is made redundant. If the employer offers a suitable alternative job on the same or suitable terms and conditions, and the employee unreasonably refuses to accept it, then they may lose the right to redundancy pay even if they have the necessary service.