10 Employment Law Myths
1. MYTH - No employment contract exists if there is nothing in writing or signed.
FACT - Even verbal agreements are binding. An employment contract exists from the moment a job offer is accepted. An employer should within four weeks of an employee starting work, issue a written statement of terms and conditions of employment. Even if this document has never been issued a binding employment contract still exists. The written statement does not have to be signed so if an employer issues one but the employee does not sign it, the employer and the employee are still be bound by the terms stated in it. If there is a disagreement about the terms an employee must protest, advisably in writing,directly to the employer.
2. MYTH - It is fair to reject a candidate for a maternity-leave-cover role on the basis that she is pregnant and would not be able to work the full cover period.
FACT - The Employment (Sex Discrimination) Act on the Isle of Man makes it unlawful to discriminate on the grounds of sex or marital status. Failing to offer a woman on the grounds of pregnancy, even if the contract is for a fixed term only, constitutes unlawful sex discrimination and cannot be justified.
3. MYTH - Holidays start to accrue once the probationary period is successfully completed.
FACT - Probationary periods have no meaning in law, so the existence of a probationary period will not affect a new employee's length of service or statutory employment rights. Statutory rights – including the right not to be unfairly dismissed – that are dependent on a minimum period of service will be based on length of service from the employee's original start date, not from the date that marks the end of the probationary period.
4. MYTH - Employees have the right to have bank holidays off work, or to be paid overtime for working them.
FACT - Although there are 10 bank holidays on the Isle of Man, employees are not automatically entitled to a day off or extra pay on a bank holiday. Any such right depends on their contract of employment. Similarly, there is no legal right to be paid any extra money for work done on a bank holiday unless the contract says so.
5. MYTH - Where an employee is dismissed for gross misconduct there is no need to pay in lieu of accrued holiday.
FACT - An employee who is dismissed part way through a holiday year is entitled to pay in lieu of untaken statutory holiday that has accrued up to the date of termination. This is the case even if the employee has been summarily dismissed for gross misconduct. The individual’s contract may, however, specify that any contractual holiday over and above statutory entitlement will be forfeited if he or she is summarily dismissed.
6. MYTH - The expression “summary dismissal” for gross misconduct can be taken literally.
FACT - The dismissal of an employee without notice on grounds of gross misconduct will ordinarily be held to be unfair if the evidence reveals that the employer did not first inform the employee of the allegations, thoroughly investigate them, give the employee an opportunity to refute them, and allow the employee to appeal. Employers should, therefore, follow their disciplinary procedure before summarily dismissing an employee for gross misconduct.
7. MYTH - A worker can be accompanied by a union official at a discipline or grievance hearing only if the employer recognises the relevant union.
FACT - The Employment Act 2006 gives employees a right to be accompanied at a disciplinary or grievance hearing by a companion of their choice who is a full-time trade union official, a lay trade union official or another of the employer’s workers. There is, however, no requirement for a trade union official accompanying a worker to be from a recognised trade union. If the employee is a member of a non-recognised trade union, he or she may be accompanied by an official from that trade union. Indeed, there is no necessity for the worker to be a member of any trade union to be accompanied by a trade union official, although, in practice, trade unions rarely support workers who are not their members
8. MYTH - An employer cannot give a "bad" reference.
FACT - An employer is not under any legal obligation to provide a reference. Where one is given, it must give a true, accurate and fair picture of what the employee was like. The reference must not give a misleading impression. However, as long as the reference is accurate and does not tend to mislead, there is no obligation to go into great detail or to be comprehensive. This means that all information given should be able to be substantiated with hard evidence. For example, the reference should not allude to an employee's misconduct if no investigation into that misconduct has been carried out and there are no reasonable grounds for believing in that misconduct.
9. MYTH - Employees with young children have a right to work part time.
FACT - Employees with young children do not have an automatic right to work part-time, but they have a right to ask to work flexibly (after six months' service), for example, working part-time. Employers do not have to agree to such requests, but they must consider them carefully by following a set procedure and only refusing them on specified grounds (these might cover additional costs or impact on performance). In addition, refusing a flexible working request from a female employee may amount to sex discrimination, on the basis that women are more likely to be primary carers. Refusal can be objectively justified, but the employer would need to have good reasons for this and, ideally, evidence to support it.
10. MYTH - Employees on long-term sick leave should be left well alone.
FACT - Although employers should not put undue pressure on employees who are on long-term sick leave, they are entitled to find out more information about the illness. This would include consultation with the employee and, with permission, writing to the employee's GP (and any specialist) to find out about the employee's condition, the prognosis and whether there is anything the employer can do to help facilitate their return (such as reduced hours). In addition, the employer might want to invite the employee to be examined by an independent specialist. Employers should not make any decision about dismissal until they have explored the situation fully.
To discuss any of these issues in more detail please contact us.
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