Employment Law Myths

Employment Law Myths – there are common misunderstandings about what an employer can and can’t do…

Q: Are probationary periods useful?

A: Sometimes….

As an employee has limited protection for unfair dismissal during the first 2 years of employment, probation periods are not required in order to dismiss early.

They were used commonly to delay access to the pension plan but this is no longer possible with auto enrolment. However, some companies continue to use the probation period to restrict access to other company benefits.

The best use of a probation period is to actively review performance, to give and seek feedback – this will make the employee feel valued and discover any potential issues early on.

Q: Can I make an employee on maternity leave or who is pregnant redundant?

A: Yes… but…

You can make an employee who is pregnant or on maternity leave redundant.

However… the employee on maternity leave has the right to be offered a suitable alternative vacancy and that employee will need to be given priority.

Be careful about pooling in this situation though, the pregnant employee still must be included in the pool.

This protection only applies to employees on maternity leave and not pregnant employees. However, this could change under new government proposals to give greater protection from redundancy to pregnant women and parents returning to work.


Q: Can I dismiss a disabled employee?

A: Yes

There is no automatic protection for a disable employee but make sure that the disability is not the reason for the dismissal.

Make reasonable adjustments and considerations of their disability for every type of dismissal.

In capability dismissals, where the employee is unable to return to work, medical evidence will be key, so it is important to get Occupational Health involved early, if you have it.

There is definitely more risk involved in dismissing any one is a protected category,  so make sure a transparent process is followed and that everything is properly documented and minutes are taken in every meeting.

Q: If an employee has exhausted their sick pay and is then dismissed, are they paid their notice?

A: It depends!

This is based on the contractual notice period. If the contractual notice period is greater than their statutory notice period by at least one week, there is no entitlement to notice pay.

Where the notice pay is equivalent to statutory notice, the employee is entitled to full pay even if there are on sick leave.

Be careful not to fall into the trap of thinking that 3 months is the same as 12 weeks, it isn’t and I have seen many difficult situations arise because of this and how it affects final payments.

Q: Does TUPE only protect employees for 2 years?

A: No

A change to an employee’s terms and conditions is always unfair if it is connected to the transfer and the sole principal reason for the change was the transfer.

Unless the reason is an economic, technical or organisational reason resulting in a change of the workforce.

The longer the time between transfer and change, the less likely that the change is connected to the transfer, but there is no time limit.

Q: Am I allowed to say anything in a reference?

A: Yes

To be clear, there is no legal obligation to provide a reference.

You do not have to be glowingly positive in a reference, but there is always risk of a claim.

If you do say anything negative, make sure you can support the claim with evidence.

My advice would be to offer a standard reference  that confirms employment facts only, i.e. When the employee was employed from and to and what their job title was upon leaving.

Leaving out anything that could be seen as subjective will reduce the likelihood of a claim.

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