Employment law myths: who are you gonna call? – part two

Written by: Adam Bernstein
Published on: 28 May 2021
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Phone Image: BrAt82 / Adobe Stock

Image: © BrAt82 / Adobe Stock

The thorny matter of employment contracts – in particular, the view that if no written contract exists between the employer and employee, there is no contract at all – is top of her most troublesome myths.

She said: “This myth may have sprung out of the misconception that the only contracts that are valid are written contracts.

“The contractual relationship can be based on what the employer and employee have said to each other, and their subsequent course of conduct.”

Worryingly for employers, where they have failed to provide clear terms when they were able and obliged by law to do so, employment tribunals often find in favour of the employee.

So, in Ms Themistocleous’ opinion, “employers should be careful to provide a written contract, signed by both the employee and a representative of the employer, when each new employee starts work”.

Not having a contract can not only lead to a dispute about the terms, but also a claim for up to four weeks’ pay for failure to provide written terms.

Next comes the understanding that employees have a right to have the day off on a public holiday and, if they do work, they must be paid more for it.

This misconception, in Ms Themistocleous’ mind, comes from the term “public holiday”.

Experience has taught her that employers assume, as these days are generally considered to be days off, employees have the right to them.

She said: “There is actually no statutory right to time off, paid or otherwise, on any public holiday. Employees are entitled to the basic minimum holiday entitlement of 5.6 weeks each year, but how and when this is taken is up to the employer and employee.”

That said, an employee’s contract may specify he or she is entitled to take public holidays off, or to extra pay for working those days – and if the employer breaches the contract with regards to public holidays, Ms Themistocleous warned an employee could bring a claim against them.

Only one solution exists in her mind: “Ensure the employer’s position on public holidays is consistent between employees and, where possible, see that the position is set out in the employment contract.”

With workers having families, it’s not unreasonable for some employers to think employees with children have the right to work part-time or on a flexible basis. The actuality is quite different, according to Ms Themistocleous.

She said: “Employers can think that because employees with 26 weeks’ service have the statutory right to request flexible or part-time working, the employer must accept requests. However, no employee has the right to flexible or part-time working, regardless of their status as a parent.”

As a result, she said an employer can reject the request for certain defined reasons, including “the burden of additional costs, detrimental impact on the quality or performance of the business, or the inability to recruit additional staff or reorganise work”.

Nevertheless, she would advise employers to carefully consider any request for flexible or part-time working and “if they must deny the request, ensure it can be justified by one of the prescribed reasons”.

Her logic is based on the right of an employee who is wrongly denied flexible or part-time working to bring a claim to make the employer reconsider the request and/or pay up to eight weeks’ wages in compensation.

The fourth myth is the view that an employer is not allowed to give an employee a bad reference.

While it’s possible that employers believe this myth to be true because it can seem easier and less risky than giving a bad reference, nothing in law states an employer must give a reference for an employee.

However, as Ms Themistocleous advised: “Where the employer does give a reference, it should not be untrue or inaccurate. That said, there is no law preventing an employer from giving a negative, but factually faithful, reference in appropriate circumstances.”

But employers must tread carefully, she said: “If an employer gives a misleadingly positive reference, the recipient of the reference can bring a claim against the employer for negligent misstatement.

“Alternatively, if an employer gives a misleadingly negative reference, the ex-employee may bring a claim for defamation.”

To reduce risks, some employers have a policy of only confirming the employee’s dates of employment and position with the company, which sidesteps the issue altogether. But this can also have a negative impact on those employees who deserve a glowing reference.

The final myth is the belief that employees who are pregnant or on maternity leave cannot be dismissed.

The root of this particular myth may lie in the stance that some employers take as they are conscious of not discriminating against pregnant employees or employees on maternity leave.

Critically for Ms Themistocleous, no employee is immune from dismissal.

However, she said: “Employers must be careful not to dismiss employees because of their pregnancy, pregnancy-related illness or maternity leave. Such dismissals and redundancies are likely to be automatically unfair and discriminatory, which may lead to high compensation for loss of earnings and injury to feelings.”

The only path open to employers is to follow their disciplinary process for these employees in the same way as for any other employee, but with consideration as to whether – and to what extent – the pregnancy has impacted the conduct or performance.

Summary

The fact employment lawyers invariably have long and storied careers indicates one thing – employers and employees often fall foul of some often-complex rules and procedures.

While workplaces disputes will never be eradicated, a proper understanding of the law will be of greater help than an understanding of myths.

This article first appeared in Vet Times Volume 51, Issue 20.