HR myths are some of our favourites. A little bit of knowledge on employment law can frequently become the stuff of urban legend.  Most HR myths tend to involve matters that an employer “can’t” do.  Let’s look at the Top 10:

1. You can’t dismiss an employee on maternity leave

My favourite all time HR myth.  No, no and thrice no.  It is unlawful discrimination to dismiss an employee because she is on maternity leave (you could still dismiss if you wanted to and had deep enough pockets).  However, it is perfectly legitimate to dismiss an employee on maternity leave if her role is redundant (although special rules apply) or she has committed an act of gross misconduct.    Employment legislation provides specific advice on how to deal with dismissals of employees on maternity leave – so this is definitely not prohibited.

2. You can’t dismiss an employee who is genuinely off sick

Again – the logical extreme helps here.  If the employee is never going to come back to work, of course you don’t have to keep their job open forever.  There is even a “fair reason” for dismissing in these circumstances – capability.  You would need to abide by a fair process and wait a reasonable period of time.  But it is frequently fair to dismiss employees who are too ill to do their job.

3. An employee who hasn’t signed his contract isn’t bound by its terms

Another interesting urban myth.  Where there is a signed contract – there can be no sensible argument that the terms have not been agreed.  However, where a contract is issued but unsigned, it is difficult for either party to try to argue that it doesn’t properly reflect the agreed terms.  There may be arguments about very restrictive clauses that haven’t yet taken effect, and best practice is always to have a signed contract.  However, the absence of a signature doesn’t make the contract void.

4. If an employee isn’t issued with a written contract – then there is no contract of employment

Again – sadly not. When you buy something in a shop – you don’t enter into a written contract, but it is clear that a contract has been entered into (and probably concluded).  It’s the same in the employment relationship.  There is an employment contract – but it might not be what you intended.  It would be up to a court to determine its terms.  The same court may also impose a financial penalty on the employer for failing to issue a contract within two months of employment starting.

5. You must follow the ACAS Code of Practice when dismissing an employee

You don’t have to. However, a failure to do so may lead to a Tribunal increasing awards for unfair dismissal by up to 25%.  There is not a need to follow the ACAS code for employees with under two years’ service (as generally speaking, they cannot claim unfair dismissal) – however it is good practice to do so.

6. You can’t give a “bad” reference

Firstly – save in limited sectors – there is no obligation to provide a reference.  If a reference is provided then it should be fair, accurate and not misleading.  So, if an employee’s performance was poor – you may make that clear.  Our advice would be to stick to the facts (rather than expressing an opinion).  To suggest that an employee performed well, when this was not the case, could lead to a potential claim from the recipient of the reference, that the content was misleading.

7. Employees with under two years’ service have no rights

No.  Employees with under two years’ service (well, usually one year and 51 weeks’ actually) can’t bring ordinary unfair dismissal claims.  They can bring claims for breach of contract, for holiday pay, discrimination, maternity rights, whistleblowing, protective awards and most other employment claims.  Some of these rights (such as discrimination) begin even before the employment relationship has started.

8. Agency workers can’t bring any claims against the client company that they work for

It is unlikely that an agency worker could bring an unfair dismissal or breach of contract claim against the ultimate client company (rather than their agency).  However, they could certainly bring claims for discrimination or whistleblowing against the ultimate client.

9. You can’t dismiss employees who have TUPE transferred

You can.  They have the same rights as they previously had.  So, employees with under two years’ service can be dismissed without them having unfair dismissal protection.  Additionally, if the dismissal is not related to the transfer or is related but is for an economic technical or organisational reason entailing changes in the workforce (and is otherwise fair) then their dismissal would not be unfair.

10. You have to postpone a disciplinary hearing if an employee’s rep can’t attend

Again – no.  There is a limited right to postpone a hearing for up to five working days but only in very limited circumstances, that representatives don’t tend to comply with.  Those are that they must be unable to attend and they must give an alternative date within five working days of the date of the hearing.  If they fail to do so – the right to postpone is not triggered.  Even if it is triggered – a breach should result (only) in an award of up to two weeks’ pay.

There are many other HR myths.  Our advice is to take specialist legal advice rather than accepting such myths as correct.  You may be pleasantly surprised. 

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