With regular changes to legislation employers often get confused about what they can and can’t do. With that in mind, here are the Top Ten most common myths about employment law.

1. It’s illegal to give a ‘bad’ reference
As an employer your obligations are to be accurate and truthful in a reference, not giving an overall misleading impression. So you can’t make unsubstantiated negative claims, but if the individual has a disciplinary warning on their record, or has performance concerns which are fully documented then it’s fine to mention those.
To avoid problems many employers prefer to have a policy of only giving basic factual references.  This type of reference is not really very useful and could penalise staff who deserve a glowing reference. You could consider providing very basic references in cases where you don’t feel able to give a good one but giving more information if you feel you can.

2. It’s illegal to ask about childcare arrangements when recruiting
It’s not specifically illegal but it not a very good idea.  The problem is justifying why you are asking the question if it is not to discriminate.  It is unusual to ask men this question so asking about childcare is likely to be seen as discriminatory. 
You should instead get into the habit of identifying what you really need to know to find the best candidate for the job and working out appropriate ways of asking for that information. For example, if it’s a job that involves overnight travel, you don’t need to know who would look after the children. You just need the candidate’s confirmation that they are available on the terms you require. Phrase the questions right and you can usually find out what you need to know.

3. If you make someone redundant and you are in a position to recruit again within a year, you must offer them the job
You do need to be careful about claims for unfair dismissal if employees have any reason to think their redundancy isn’t genuine. There is a time limit to make a claim for unfair dismissal of three months.   So, as long as it’s clearly a genuine redundancy at the time, if things change later, you can safely recruit whoever you want and are not obliged to look at the people you made redundant.

4. It’s illegal to make someone on maternity leave redundant
If there is a genuine redundancy situation when someone is on maternity leave, you do not have to wait until she returns to work, or exclude her. You should involve her in consultation, keeping her fully informed, but you can proceed with your redundancies as long as you are careful and ideally take advice.
Women on maternity leave do get some extra protection in that if there is a suitable alternative vacancy available, they must be offered it directly. This is a rare ‘positive discrimination’ element of employment law that catches lots of people out.

5. No written contract of employment means no contract
Employers are obliged to provide a written statement of main terms and conditions of employment within eight weeks of starting employment. However, not issuing them with this statement or a contract of employment doesn’t mean there is not one.  There is a contract in place from the moment you offer someone a job and they accept it.  The contract is just not in writing and is based on the facts of the situation. 

6. Gross misconduct means you can sack on the spot
Gross misconduct usually results in ‘summary dismissal’ without notice. That’s fine, if the offence is serious enough, but what isn’t fine is making that decision on the spot and not giving the individual an opportunity to put their side of the story.
You should always investigate the facts of the matter and then invite them to a disciplinary hearing, setting out the allegations and giving them an opportunity to respond and be accompanied by a colleague or trade union official. Claims for unfair dismissal are more likely to be successful if a fair process wasn’t used, so however serious the misconduct, you shouldn’t skimp on a proper procedure.

7. You can sack anyone with less than a year’s service for any reason
It’s true that employees who have less than a year’s service in most cases can’t claim for unfair dismissal. However, there are more than 20 specific reasons for which unfair dismissal can be claimed from day one, mostly involving discrimination or asserting a statutory right.

8. Once someone’s probationary period is over they are ‘safe’ and you can’t sack them without a lengthy procedure
Probationary periods really mean absolutely nothing in law. They are really just a useful mechanism to prompt the employer into reviewing performance and making a decision about the employee’s future. In fact if someone isn’t working out in the job, you can dismiss them during the first year just as easily as during a probationary period. The only thing that often changes after probation is the notice period.

9. Employees have the right to bank holidays off
Although bank holidays are often referred to as ‘statutory’ holidays, there’s in fact no obligation to grant them. Your staff must get the basic minimum holiday entitlement of 5.6 weeks each year, but those weeks may or may not include bank holidays. 

10. As long as you get someone to do their own tax, they are ‘self-employed’ and you don’t have to worry about employment rights
Employment status is defined by the nature of the relationship between the two parties and isn’t something you choose. So even if you call it ‘self-employment’ and don’t deduct tax through a PAYE system, you may still find the employee is entitled to full employment rights including holiday, protection from unfair dismissal and so on.

So, did you get 10 out of 10?  Please don’t make assumptions about what you think is right – take advice.