In a follow-up to last month's article on the recent Pimlico Plumbers employment case, Chloe Themistocleous, an Associate at Eversheds Sutherland (International), dispels a few myths around employment law.
Management mistakes in the workplace can lead to costly litigation, loss of management time, and negative publicity. Often, mistakes are made when management assume they know the answer to a problem or rely upon longstanding practices taken by the company that do not stand up to scrutiny. Here some answers to a few myths that may save you from a messy legal incident in the future.
Not written, not real
A contractual relationship can be based on what two parties have said to one another, and what they do. In the absence of a written contract, when a dispute arises, an Employment Tribunal will consider what the parties say was agreed, what they actually did, and any supporting evidence. Employment Tribunals often find in favour of an employee when an employer has failed to provide clear terms when they were able and obliged by law to do so. Furthermore, failure to provide a contract of employment can result in the Tribunal ordering the employer to pay the employee up to four weeks’ wages in compensation.
Instant dismissal within two years
Employees who have been dismissed with less than two years’ service cannot bring claims of ordinary unfair dismissal. However, they can bring other claims, such as automatic unfair dismissal (say if the reason for their dismissal was due to their whistleblowing, or them taking family-related leave), and discrimination. Employers should therefore take care when dismissing employees to ensure the reason for dismissal is not discriminatory or due to an automatically unfair reason.
Flexibility for parents
No employee has a right to work part time, or on a flexible basis, irrespective of whether they have a child. However, any employee with 26 weeks’ service can make a flexible working request for any reason at all. That said, the employer does not have to accept it and can reject the request if it could have a detrimental impact on the quality or performance of the business, or the inability to recruit additional staff or reorganise work. Failure to deal with requests properly may lead to an Employment Tribunal, making the employer reconsider the request, and/or ordering it to pay up to eight weeks’ wages in compensation.
Protection for the pregnant
No employee is immune from dismissal. Employers must not, however, dismiss employees because of their pregnancy, a pregnancy-related illness, or maternity leave. Such dismissals are likely to be automatically unfair and/or discriminatory, and may lead to high compensation awards for loss of earnings and injury to feelings at the Tribunal.
No procedure needed?
Irrespective of the reason for dismissal, employers must always follow a fair procedure when proposing to dismiss an employee, even when potential gross misconduct is involved. As part of the investigation, things may come to light which means the employer cannot conclude the employee was guilty of gross misconduct or that mitigating factors mean dismissal is not a suitable penalty. Where a fair procedure is not followed, the dismissal will be unfair and the employer can be ordered to pay compensation to the employee.
Continuity of service
How long an employee has worked for an employer (continuous service) is important because an employee gains certain rights over time. If there are no breaks in an employee’s employment, continuous service carries on from one role to the next within the same organisation.
When employees are transferred from one company to another under the TUPE regulations, employees also maintain continuous service from the date they were employed by the original company and not the date of the transfer.
Minimum notice pay
When an employee is dismissed and is not being required to work their notice, you must pay at least the minimum amount of notice required by law. The statutory minimum is one week’s pay, before an employee has two years’ service, and one week for every continuous year thereafter, capped at twelve weeks. However, if the employee’s contract stipulates a longer notice period, that must be paid instead. Failure to pay the proper notice may result in claims of wrongful dismissal for unpaid notice pay.
At the end of the day, an employer can act in any way it likes. However, should it be caught breaking the law, the consequences can be both severe and expensive.