Myth 1: You cannot ask about domestic arrangements and family plans at a job interview.
Reality: It is not illegal to ask about an applicant’s family, or plans for one, at a job interview. However, if you decided not to employ a woman because you suspected she was about to start a family, this would be sex discrimination and the applicant might be able to use your questions and her replies as evidence to support her case. The safest approach is to align your questions to specific job requirements and then put those questions to each applicant.
You could, for example, ask each applicant if they would be able to work regular overtime if it was required. If the job involves overseas travel, you do not need to know who would look after the applicant’s children whilst she was away. You just need her to confirm she can travel abroad as you require.
Myth 2: You can be fined for not giving a new employee a written contract of employment within the first two months.
Reality: An employee who is not given a written contract of employment within the first two months can complain to an Employment Tribunal. However, the only power the Tribunal has is to order you to provide a written contract. The Tribunal has no power in that situation to award compensation.
However, if an employee brings some other successful complaint against you (for example, unfair dismissal or discrimination), the Tribunal has the power to award them extra compensation (between two and four weeks’ gross pay) if you had failed to provide a written contract of employment by the time that complaint was made.
Myth 3: Employees with children have the right to work part-time.
Reality: Employees with children under the age of 17 do not have an automatic right to work part-time but, once they have completed six months’ service with you, they have the right to ask to work flexibly – for example, working part-time. You do not have to agree to such a request but you must consider it carefully by following a set procedure and only refusing it on one or more of the available business-related grounds.
However, even if you follow the procedure to the letter, turning down a flexible working request from a female employee may amount to indirect sex discrimination. If, for example, you insisted on full-time working, this would adversely affect your female employees more than your male employees because women are more likely than men to be the primary carers of children. An insistence on full-time working could be objectively justified, but you would need to have good reasons for it and evidence to support those reasons.
Myth 4: Staff have no right to privacy at work.
Reality: Employees do have a right to privacy in the workplace. You are therefore limited in what you can do to check up on your staff. The key thing is to limit your employees’ expectations of privacy by publishing policies saying what they are and are not allowed to do whilst at work.
These should be backed up by a monitoring policy spelling out what forms of monitoring will occur and for what purposes. Although some level of monitoring is reasonable – for example, to check the quality of work and compliance with workplace rules – employers must strike a balance between their business needs and their employees’ right to privacy.
Myth 5: You cannot take, or continue, disciplinary action against an employee who is off sick.
Reality: There is no law which says that an employer cannot pursue a disciplinary process against an employee who has been signed off work due to sickness. However, in practice it is likely to be difficult and you have to tread carefully. An employee who is off sick clearly cannot be forced to come to work to attend a disciplinary meeting. They might, though, agree to come in or to the meeting being held at their home or at some convenient neutral venue.
Other possible alternatives are to hold the meeting by Skype or telephone. If the employee is unable or unwilling to agree to any of these, the meeting can be held in the employee’s absence with the employee having first been sent as much information as possible and given the opportunity to submit written evidence and representations. The important thing is to treat the employee as fairly as reasonably possible whilst at the same time having a firm determination to get the process completed.
Myth 6: You cannot make a woman redundant while on maternity leave.
Reality: If there is a genuine redundancy situation when someone is on maternity leave, you do not have to wait until she returns to address the situation. You should inform and consult with her exactly as you would if she was at work. You need to use common sense and discretion and you may need to be flexible over where and how meetings take place. However, you should not go overboard and give the employee an unfair advantage over other employees, particularly where a selection exercise has to be carried out.
Myth 7: You can dismiss an employee who is 65 or over without the risk of claims.
Reality: Prior to October 2011 it was possible to compulsorily retire employees at the age of 65, against their will, without facing claims for unfair dismissal or age discrimination. You just had to follow a special statutory procedure. That is no longer the case. An employee aged 65 or over should now be treated exactly the same as any other employee is treated.
Are you a small business with employees? Do any of these myths surprise you?
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