Continuing with the theme of all things ‘10’ – we’re taking on our favourite ‘top 10’ employment law myths.
1. “Post-termination restrictions aren’t enforceable” – if we had a pound for every time we’ve heard that! They most definitely are if they protect only legitimate business interests.
2. “If an employee doesn’t turn up for work, I can assume they’ve resigned” – resignations should always be unambiguous and clear to both you and the employee – otherwise your assumption could amount to you dismissing them (unfairly)!
3. “I can dismiss on the spot because it’s gross misconduct” – you can dismiss fairly without notice (assuming you’ve followed a fair process). That isn’t the same as ending someone’s employment ‘on the spot’ (which is likely to be unfair!).
4. “You can’t dismiss anyone with a protected characteristic” – this isn’t true. The law around discrimination and protected characteristics is there to protect individuals from being treated unfavourably or dismissed because of a protected characteristic. It’s not immunity from dismissal entirely.
5. “Phew, the claim has been struck out. That’s the end of that!” – not always the case. Applications can be made for reconsideration or appeal.
6. “Garden leave is basically the same thing as payment in lieu of notice” – not true. During garden leave an employee is still employed by you, even if you might not need them to carry out any work. PILON means you’re ending their employment and paying up the notice that is owed to them.
7. “They can’t pass their probation without us telling them” – not the case, if you fail to identify the employee has passed or failed probation then they will automatically have their employment affirmed (unless you have some clever drafting in their employment contract!).
8. “We have to suspend the employee during their disciplinary process” – no, knee-jerk suspensions have the potential to land you in hot water! Suspension should be to protect your business or your people, not a given in every scenario.
9. “All their terms and conditions are in their employment contract” – quite often this isn’t accurate. Terms are frequently agreed verbally, through custom and practice, or in other documents (such as your handbook and policies). Hunt around to see what else is agreed before you assume it’s only contractual terms which matter.
10. “We can’t dismiss during a disciplinary unless we’ve got proof” – not necessarily the case. You just need to show that you’ve got an honest and reasonable belief (based on a reasonable investigation) that they’ve done what they’re accused of. Although, proof is obviously helpful!
