I often come across myths or misconceptions about employment law in the early years. In this second instalment, I will set out some of these and explain the correct legal positions.
1 An appeal against termination of employment will extend the employment until the appeal is concluded.
Unless it has been expressly agreed that the termination of employment will be postponed until the outcome of the appeal, an appeal does not usually delay the termination of employment. The dismissal may, however, later be rescinded if an employee’s appeal is successful.
2 There is no written employment contract in place and therefore the nursery can terminate the employment or change arrangements with the employee as it wishes.
Despite there being no written contract, the courts and tribunals will imply a contract of employment. Therefore, employees without written contracts will have the same minimum employment rights, including rights regarding changes to terms and conditions of employment and termination, as any other employee. Any uncertainty in relation to contractual terms will usually be interpreted in an employee’s favour.
3 A nursery worker cannot be accompanied by a trade union representative at a disciplinary meeting because the nursery does not recognise a union.
This is not correct. Workers have a statutory right to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing. The worker who is subject to the disciplinary hearing does not have to be a member of the trade union to which the official belongs and the trade union in question does not need to be one that is recognised by the nursery for the right to apply.
4 Employees have the automatic right to receive paid bank holidays off and/or paid a higher rate if worked.
Employees have no statutory right to take bank holidays off. The position regarding bank holidays is usually addressed in the contract of employment, with employees often being granted holidays during bank holidays in addition to their annual leave. Where bank holidays are worked, there is no statutory entitlement to any higher rate of pay, but one may be agreed under the contract.
- To ask Caroline a question, email hannah.crown@markallengroup.com
