When it comes to people management you have more power as a business owner than you might think. Yes, employment law protects individuals, that’s its role, but know what you can do and you’re in the right place to protect your business.
Myth 1: There is no contract, that means we can change what we want
FACT: The employment contract is formed the moment you offer a job and they accept, it doesn’t have to be in writing.
If there isn’t a written contract, we would look at what happens on a day to day basis known as “custom and practice” to understand what the contract looks like. As you can imagine, this quickly gets messy and might not be the contractual terms you really want in place.
In reality, it can make it harder to change things when the contract isn’t in writing. An employment contract can include a range of flexibility clauses, giving the business the ability to make reasonable changes.
Should the business have solid business reasons for needing to make changes, there is always a process we can follow to do what you need. When the right foundations are in place, including a written employment contract, those processes are much easier.
Myth 2: The contract should be given out after the probationary period
FACT: It is a requirement of the Employment Rights Act 1996 (amended in 2020) that all workers are entitled to receive a statement of particulars by the end of day 1 of employment.
The statement of particulars is about ensuring employees have information they need, the list of exactly what must be included comes from section 1 of the Employment Rights Act, hence it is occasionally referred to as a Section 1 statement. We recommend you go further than these requirements and include the contractual terms that you need to protect your business.
As with myth 1, if you don’t issue this document the contract is formed verbally on implied terms. It’s much better to set out your terms for the employment relationship right from the beginning. In fact, we recommend you issue terms at the point of offer, if you’re expecting someone to sign up to your terms it’s only right they know what the terms are.
Myth 3: The contract isn’t signed therefore it doesn’t count
FACT: The simple act of provision of service in exchange for pay means there is a contract. It doesn’t matter if it’s been signed. If they continue to work and you pay them, there is a contract in place.
Unless they are working under duress and actively complaining about a contractual clause you can assume that a contract issued but not signed operates as if it has been signed.
Myth 4: You can’t contact someone who is off sick
FACT: You can and should remain in contact with someone who is off sick.
This is one of the really problematic myths we come across. I have had to deal with someone who has been off sick for 4 years with no contact because the employer believed this. Imagine having to contact someone after 4 years to discuss their absence and attempt to manage them back into the business? Not forgetting they continue to accrue employment rights including holiday during this time.
It is right and reasonable for an employer to expect to keep in contact with an employee off sick. In short term cases, everyday contact is not unreasonable, if you know the absence will last a week or two you could agree to have contact every few days or every week. Crucially you want to be kept up to date with progress and a potential to return to work. If the absence goes beyond 4 weeks or looks like it may be indefinite you will want to arrange meetings, the purpose of which are to support the individual back to work. If their health means they can’t return to work, you may need to dismiss for incapability, in which case you need a fair process which can only be done if you’re in contact.
Myth 5: You can’t do anything about genuine sickness
FACT: You can manage even genuine sickness. You can and should manage it with empathy and support, however, the question remains are they capable of the role they are employed to do.
If sickness is excessive, whether that’s through regular short term absence or a long period of absence you can dismiss. This won’t be the first action you take, you should look at how you can support them to return to and stay at work. You should consider flexible working and reasonable adjustment options to minimise the effects of ill health on work.
If reasonable adjustments and support doesn’t work and the business cannot accommodate the level of absence then dismissal may be appropriate. We strongly recommend you take advice if you are looking to dismiss based on ill health, it is crucial you take the right steps to avoid a claim of disability discrimination.
Myth 6: Employees are entitled to bank holidays off or to be paid more
FACT: There is no statutory right to time off or additional pay for working on a bank holiday.
There is a statutory minimum holiday entitlement of 5.6 weeks (28 days for someone working a 5 day week). As a business you can choose to require people to take their holiday on a bank holiday.
When additional bank holidays are announced such as for a royal wedding or jubilee, an employee may be entitled to paid time off under the contract of employment. However, if the contract is worded “you are entitled to 8 bank holidays” or specifically lists the bank holidays, they will not be entitled to paid time off when an additional bank holiday is announced. In this case, you could:
- serve notice (double the holiday required) and make them take the day out of their holiday entitlement
- make the bank holiday a normal working day
- give the extra day as a goodwill gesture
Myth 7: You can’t give a bad reference
FACT: A reference must be accurate, if accurate is effectively “bad” e.g. confirming they were dismissed then it is legally acceptable to include this in a reference.
Fewer and fewer employers even request references these days because of the trend towards only giving very basic factual references. It is however a myth that you cannot give a bad reference. Having said this, any reference must be factual, based on information you can evidence. You can for example say that someone has been dismissed, it would be harder to defend giving an opinion on whether they have sufficient experience for the new role.
You cannot write a reference that is:
In most cases a reference should only be given where you have consent to do so (there are some exceptions which should only be used as a last resort and are more likely to apply in regulated industries). The reality is that an employee who believes they will get a bad reference is unlikely to give that name as a referee or give you consent to write that reference.
Don’t lose control of your business with misinformation. When you know what you can do, you’re able to solve problems as they occur and even prevent them.
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