10 news/legal expert Employment myths exposed


Employment law is shrouded in myth. Johnathan Arman, senior associate at Glanvilles LLP, dispels some of the most common misconceptions


No written employment contract means there is no employment contract


Employers are obliged to provide a written statement of employment particulars within four weeks of an employee commencing employment. Failure to do so can result in the employee being entitled to bring a claim. If there is no written contract the terms of the employee’s contract will be governed by any terms offered verbally or in correspondence. In addition, terms can also be implied into the contract based on your conduct. Providing a comprehensive and clear written statement of employment particulars can ensure that both parties are clear on exactly what terms govern their relationship and these particulars can therefore protect against future claims and disputes.


Gross misconduct means that you can sack an employee on the spot without following any procedure


Even in the most serious of circumstances it is not appropriate to dismiss an employee on the spot. The safest course of action when an employee is suspected of gross misconduct is to suspend the employee immediately, carry out a full and thorough investigation


and then invite the employee to a disciplinary meeting so that they can put forward their side of the story. If you do not follow a fair procedure the dismissal may be found to be ’unfair’ by a tribunal despite their being a genuine reason for the dismissal. It is crucial to follow a full and fair procedure even in what appears to be the most clear case of gross misconduct.


You can sack anyone with less than two years’ service for any reason


The general rule is that an employee cannot claim unfair dismissal if they have been employed for less than two years (one year if commenced employment prior to April 2012). There are, however, many specific reasons (such as dismissal for raising health and safety concerns) for which unfair dismissal can be claimed as soon as the employee starts work. In addition, there is no qualifying period for discrimination claims and it is always advisable to follow a fair procedure when dismissing any employee (regardless of length of service) in order to ensure that the reason for the dismissal can be explained to the employee and the tribunal if the employee is able to allege some form of claim in the future.


Payment of own tax and NI means that someone is self- employed


Whether someone is employed or self-employed depends on the exact relationship between the parties and is not determined solely by reference to the method by which tax is paid. There are a wide number of factors which the tribunal will consider in determining an employee’s status and this decision is not solely limited to the payment of tax, although this is an important factor. If the employer has a high level of control over the worker they may in fact be an employee.


You cannot give a bad reference


Employers are under an obligation to give an accurate and truthful reference. If for example an employee has a disciplinary record that has been fully and fairly recorded and documented this could be mentioned. Employers must however ensure that any reference is not misleading or incorrect as this could give rise to the employee being able to pursue a claim. However most employers decide, to avoid any problems, that they will only give a basic factual reference.


Making mistakes when it comes to employment law and following


National firm opens doors in Southampton


National law firm Irwin Mitchell has announced plans to open an office in Southampton – its ninth in the UK – as the latest stage in its strategic plan to expand the business.


The south coast launch, to take place in April, will be the second new Irwin Mitchell office in four years and comes after a year in which the firm recorded income of more than £200 million for the first time, completed its fourth acquisition since becoming an ABS, and attracted 29 partner-level recruits.


Court of Protection and personal injury teams will be in place


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from day one but the firm also confirmed plans to add other private client services including family, public law and private wealth expertise in the near future.


Irwin Mitchell also intends to develop its business legal services division in the region, focusing on corporate, commercial litigation and real estate as well as other commercial services, as part of plans to develop a full offering from the new office.


A number of the firm’s existing lawyers will relocate as part of the launch team, led by the new regional managing partner for Southampton Guy Darlaston, who


will move from his current role as a partner in the London office to lead a team who will seek to build on a substantial base of existing clients and contacts in the region.


Irwin Mitchell also outlined plans to continue its recent recruitment drive in the Southampton legal market as it looks to repeat the success of its Bristol office, which opened in 2010 and has grown significantly since.


John Pickering, group chief executive, said: “This is another statement of our intention to grow our business even further. It again demonstrates the strong position we are in at a time when


incorrect procedures can be costly. You may find yourself in the employment tribunal having to pay legal fees to defend a claim that could have been readily prevented. Most employers act in good faith when making decisions relating to employees and do not always realise the procedural ’hoops’ that you need to jump through. It is usually the case that these ’hoops’ can be readily undertaken in a cost-effective manner. If in doubt you should obtain advice prior to making a decision as it is much easier to try and prevent a claim.


Details: Johnathan Arman 01329-282841 johnathan.arman@glanvilles.co.uk www.glanvilles.co.uk


many other legal businesses face difficulties.


“We have a strong track record of opening new offices when the time is right. We already do a significant amount of legal work in the Southampton and south coast area and we have now reached a level where having a local office will enable us to grow our presence still further.


“Our intention is to expand our offering in Southampton, not just in personal legal services. We believe there are significant opportunities to develop our growing business legal services division and build on our existing client base, and we will be following those up to expand our presence in the business community.


THE BUSINESS MAGAZINE – SOLENT & SOUTH CENTRAL – MARCH 2014


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