Glenn Hayes is an Employment Partner at national top 20 law firm Irwin Mitchell. The firm has expanded its business legal services rapidly in recent years and offers a wide range of business and commercial services. The company recently conducted a study looking at today’s most prevalent employment law myths. The five myths were identified as:
Myth 1 – In order to avoid claims when dismissing an employee you must follow a particular procedure and are safe from claims as long as you do so.
Myth 2 – Parents have the right to work part time.
Myth 3 – You can’t make a woman on maternity leave redundant.
Myth 4 – Employers must provide a reference to employees who are leaving.
Myth 5 – It is not possible to retire employees anymore.
In our latest interview, we discuss with Glenn Hayes what may be causing these common misconceptions, which myth was most surprising to appear on the list, and what steps businesses could take to clarify their understanding of these key pieces of legislation.
Tell us more about this study looking these common employment law myths.
We have long been aware that there is a great deal of confusion in relation to employment laws and wanted to help ‘bust’ some of the most common employment law myths.
In order to uncover the top five, we analysed the feedback which the firm has received over the past 12 months from the hundreds of businesses using our fixed cost employment law service, IMHRplus.
What do you think has led to the current confusion or lack of awareness in many businesses with regard to employment law?
We think there are a number of reasons for this.
One of the key ones is that employment laws are complex and constantly changing. Added to this, we find that policy statements issued by the Government often appear to lend credence to misleading information about employment rights. In any event, there is insufficient clear guidance on basic existing law available to employers who are struggling with regular change.
Of the five myths which do you think is the most important that employers better their understanding of?
They are all important but I think the most dangerous one is the assumption that in order to avoid claims when dismissing an employee, a business must follow a particular procedure and as long as they stick to it, they will be safe from claims.
We explain to businesses that in order to dismiss someone fairly, a business needs to follow a procedure that is fair and reasonable but also that it bases its decision on one of the five potentially fair statutory reasons – conduct, capability, redundancy, breach of a statutory restriction (such as employing someone illegally) or some other substantial reason (such as a restructure that is not a redundancy).
If a business does not have one of these reasons to dismiss, then the dismissal will be unfair, even if it follows what would otherwise be a fair procedure.
Organisations often get this wrong and repercussions can be costly.
Of the five myths, were there any that you found surprising to have made it onto the list?
Perhaps the most surprising employment myth was the belief that all parents have the right to work flexibly. Whilst recent changes to the law have extended the right to employees with 26 week’s service to request to change their working arrangements beyond parents, including allowing the individual to work part time, the law only allows the parent the right to request this, rather than obtain it.
What steps do you think government could take to reduce the confusion around key employment legislation?
There is insufficient clear guidance on basic existing law available to employers who are struggling with regular change. We believe that what businesses really want, and need, is not more and constantly changing employment laws, but clear information and guidance on managing existing ones. This is not easy however, as in some areas, the guidance simply confuses matters even further.
The law recently changed with regard to employers being able to request flexible working. Do you think this change was effectively communicated to businesses or do you think this is a new area on confusion for businesses?
Hopefully businesses will be aware of the changes by now as there was certainly a great deal of publicity about it.
It is too early to tell how well understood the new rules are, but I’m concerned that there has been a lot of discussion about the benefits for employees and little about how it will work in practice.
If businesses are not familiar for example with the eight reasons for rejecting a request for flexible working, they will need to be if they intend to turn down individual requests, because there have been several surveys which have been done in this area and it is anticipated that the number of requests to work flexibly will be high.
It is important to remember that the recent changes will not alter the basic premise that the right is to request a different working pattern, not a right to obtain it. The application can be rejected.
Organisations should have adjusted their policy documentation in this area and if they haven’t, it is vital that they take legal advice.
What do you think the first steps could be for a business looking to improve its understanding of these key areas of employment law?
Knowing when and where to seek help is crucial. There is a significant amount of information that is inaccurate and misleading and therefore reliance upon can be dangerous. Attend seminars, sign up for bulletins and sense check matters – if it isn’t really common sense, it is probably wrong. Finally, if the situation looks like it may be serious, seek professional help.