Here Anna West and Adam Rice highlight ten common employment myths and look the reality behind each myth and the potential cost of getting it wrong.

The Myth: Asking about family plans at a job interview is illegal
The Reality: It is not illegal to ask about a candidate’s family, or plans for one, at a job interview. However, recruiters should tread carefully. If an employer refuses to employ someone because of their family duties, this would be sex discrimination, and the candidate could use the interview questions as evidence to support their case. Instead, questions should objectively relate to the job requirements and should be asked of all candidates, for example, if they would be okay with travelling away from home or performing regular overtime.
The Cost: A sex discrimination claim could be quite costly with compensation being uncapped and including a component for injury to feelings of between £500 and £25,000. Aside from the financial costs, any claim involving sex discrimination is potentially damaging to an employer’s reputation.

The Myth: Employees have no rights without a written employment contract
The Reality: Even without a written contract, employees have certain legal rights including:
• Minimum notice (after one month’s employment – see below);
• The right to claim unfair dismissal (after one year’s employment);
• Protection from discrimination or harassment on grounds of sex, race, disability, religion, sexual orientation or age.
The Cost: An employee who is dismissed without notice can claim pay and benefits for the notice period. If the dismissal was unfair, the employee can claim further compensation of up to around £70,000. Damages for discrimination or harassment are uncapped and include an award of £500 to £25,000 for injury to feelings.

The Myth: Employees have no right to notice during their probationary period
The Reality: After one month’s employment, all employees are entitled to at least one week’s notice (even if the contract provides for less). This minimum notice period increases by one week for each full year of service, to a maximum of 12 weeks. However, if the contract provides for more than the minimum notice then the longer contractual period will apply.
The Cost: Employees who are dismissed without notice can claim pay and benefits for the notice period (except in cases of gross misconduct).

The Myth: Employees on long-term sick leave should be left well alone
The Reality: 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 that the employer can do to help facilitate their return (eg reduced hours). In addition, the employer may 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.
The Cost: An employee who is on longterm sickness absence may be protected under employment laws as a disabled person (whether the illness is physical or mental, eg depression). A disabled employee who is unjustifiably dismissed, or otherwise unfavourably treated, can claim unlimited compensation, including a component for injury to feelings of £500 to £25,000. The employee may also have an unfair dismissal claim (with compensation of up to around £70,000).

The Myth: Employees can only claim harassment if offensive jokes are directed specifically at them.
The Reality: An employee who is offended by jokes or office banter about sex, race, sexuality, religion, or age, can claim harassment, even if the jokes or banter were not directed at them. It is irrelevant whether or not the perpetrator meant to cause offence – it is the employee’s individual perspective that matters. Employers are liable for harassment by their employees at work and at work-related events off site (e.g. an office party or team building event). However, employers can defend claims if they did all they reasonably could to prevent employees from harassing their colleagues, for example by having an effective equal opportunities policy that is consistently enforced and in which all employees are trained.
The Cost: Employees who suffer harassment at work can claim unlimited compensation, including an award for injury to feelings from £500 to £25,000.

The Myth: Employees have no right to privacy in the workplace
The Reality: Employees do have a right to privacy in the workplace. This means there is a limit to how far employers can go to keep tabs on their staff. While some level of monitoring is reasonable, eg to ensure the quality of work, employers must strike a balance between the needs of the business and employees’ rights to protect their private lives. In general, any interference with privacy must be no more than is reasonably necessary and the employer should have good reasons for doing so. Employers should also make sure employees are aware of any workplace monitoring.
The Cost: Employers who engage in unlawful monitoring could face claims of unfair dismissal (with compensation of up to around £70,000), plus unlimited damages (and potential fines) under data protection laws.

The Myth: Those with children have the right to work part-time
The Reality: 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), eg working part-time. Employers do not have to agree to such requests, but must consider them carefully by following a set procedure and only refusing them on specified grounds (eg 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.
The Cost: Failing to follow the set procedure could cost the employer up to £2800 in compensation, but a sex discrimination claim, for unjustifiably refusing a flexible working request, could cost a lot more; compensation is unlimited.

The Myth: You can’t be dismissed if pregnant or on maternity leave
The Reality: You can, but if the reason for the dismissal is related to their pregnancy or maternity leave this amounts to sex discrimination and unfair dismissal. Sometimes an employee is dismissed for a fair and non-discriminatory reason, but a lack of evidence to back this up leads an Employment Tribunal to believe that the pregnancy/maternity leave was the real reason for dismissal.
The Cost: Employees who are dismissed unfairly can claim compensation of up to around £70,000. Compensation for sex discrimination is unlimited, and includes an award for injury to feelings from £500 to £25,000.

The Myth: You can sack someone on the spot for gross misconduct
The Reality: Employers planning to dismiss an employee for misconduct should always follow a fair procedure, even if serious misconduct like theft or fighting is suspected. This broadly involves investigating the situation fully, giving the employee a chance to respond to any allegations and allowing them to appeal the dismissal. In addition, if any aspect of the dismissal process began before 6 April 2009, the employer must follow a set statutory minimum procedure, which broadly requires the employer to set out the alleged misconduct in writing, invite the employee to a meeting to discuss it and give the employee a chance to appeal. Failure to follow the statutory dismissal procedure (where it applies) makes the dismissal automatically unfair.
The Cost: Employees with at least a year’s service who are dismissed without a fair procedure being followed could claim unfair dismissal and seek compensation of up to around £70,000.

The Myth: You can dismiss an employee who is 65 without claims
The Reality: Employers are allowed to retire an employee at or above 65 (or the employer’s normal retirement age if this is later). But to avoid claims, employers must follow a statutory retirement procedure. This means they should notify the employee in writing six to 12 months in advance of their retirement and tell them that they can ask to work for longer. If the employee does ask to work beyond the retirement date, the employee has to consider the request seriously and meet with the employee to discuss it.
The Cost: If the employer does not go through all these steps, the employee will have an age discrimination claim where the compensation could be unlimited and an unfair dismissal claim with compensation of up to around £70,000.


Anna West and Adam Rice are specialists in employment law at solicitors, Travers Smith

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