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Jane Hallas debunks some of the common misconceptions when it comes to the minefield of employment law... and clarifies the legal rights of both employer and employee

Employment law is an everchanging and complex field which is often misunderstood by employers and employees alike. 

Debunking some of the most common mistakes should avoid problems for employer and employees alike.

Employment contracts must always be in writing 

It surprises many that an employment contract can be verbal or implied as well as written; however, there is a legal requirement that employers provide certain written terms and conditions no later than the first day of employment.

Employees on probation can be dismissed without notice

While employees on probation may face easier dismissal compared to those who have been with a company longer, they are still entitled to receive notice pursuant to the terms of their contract of employment. However, the statutory minimum notice for employees who have less than one month’s service is currently nil. If contracts are drafted in line with statutory notice requirements then, technically, an employee in their probation period with under one month’s service can be dismissed without notice.

Employers must always give one month’s notice to terminate an employee 

The required notice period is determined by the contract or statutory law. While some contracts may stipulate a month, the minimum statutory period is based on length of service:

One week for employees who have been employed for less than two years but more than one month

One week for each year of service after two years, up to a maximum of 12 weeks for employees with 12 years’ service or more.

Employees with less than two years’ service have no unfair dismissal rights

While it’s generally true that employees with less than two years’ service typically do not have the right to claim unfair dismissal, there are exceptions.

Employees can claim automatic unfair dismissal if the reason for dismissal relates to pregnancy or childbirth, health and safety concerns, taking time off for dependants, whistleblowing, or asserting a statutory right. This list is not exhaustive.

However, it’s worth noting that under the Employment Rights Bill the government has proposed a significant change to make the right to claim unfair dismissal a day one right, meaning all employees would be able to claim unfair dismissal from the start of their employment.

Employees who resign voluntarily cannot claim unfair dismissal

Employees who resign may be able to claim constructive dismissal if they feel forced to leave their job due to their employer’s actions, such as a breach of contract or creating an intolerable work environment. 

Suspension is mandatory when investigating an allegation of gross misconduct

While suspension should be reserved for cases of gross misconduct, not every case of gross misconduct will call for suspension.

Suspension may be necessary if:

There is a genuine concern that the employee’s continued presence could pose a risk

There is a risk that the employee might hinder the investigation

There has been a significant breakdown in the working relationship.

Zero-hour employees have zero employment rights

Employees on zero-hour contracts still have a wide range of employment rights, including the right to receive the National Minimum Wage, protection against discrimination, sick pay and entitlement to annual leave. Their hours of work are not guaranteed which can affect their income and job security. 

Zero-hour employees are technically part-time employees. As such, they are afforded protection against discrimination on account of their part-time status; in other words, they have the right not to be treated less favourably than their full-time counterparts.

However, matters are slightly different regarding zero-hour workers rather than zero-hour employees as they are seen differently by the law. 

Employers can terminate employees if they've been off sick for an extended period

While it may be possible to dismiss an employee for long-term sickness, it must be handled carefully. There is no definitive timescale that triggers a dismissal, and these situations must be assessed on a case-by-case basis.

Employers can select part-time employees for redundancy before full-time

Employers cannot discriminate against part-time employees in redundancy situations. Redundancy must be based on objective criteria like skills, experience, or business needs, and part-time employees should be treated equally to full-time employees.

Employers should ensure that the redundancy process is fair and transparent, avoiding any discrimination based on part-time status.

All employees are entitled to a statutory redundancy payment

Only employees with at least two years of continuous service are entitled to statutory redundancy. If an employee unreasonably refuses suitable alternative employment offered, they may forfeit their right to statutory redundancy pay.

Jane Hallas is head of team and a solicitor at WorkNest.