Business Expert: The top pitfalls in employment and anti-discrimination law and how to avoid them
9th January 2019
Remember the one million pound damage award against an employer in 2018 for discrimination and unfair dismissal? (Click here if you missed it). Keep reading to learn how to reduce the risk of facing a claim.
Perhaps the most obvious example of rights applying from day one of employment (and indeed before) is anti-discrimination law and the Equality Act 2010. There is no qualifying time period that must be served for someone to bring a discrimination claim. A claim of course can be made even prior to employment beginning, for example at the interview stage.
Two-year rule exemptions
Remember that although most of the time employees cannot bring an Unfair Dismissal claim until they have two years continuous service, there are many exemptions to this including :
Health and safety - and raising a concern regarding health and safety
Dismissal for exercising a statutory right - for example the right to paid holiday.
Whistleblowing - Public Interest Disclosure Act. This allows an employee or worker who is dismissed for making a protected disclosure to claim automatic unfair dismissal. This also applies to protect any worker from suffering any detriment by employers on the ground that they have made a protected disclosure:
• if an employee is dismissed because s/he has made a protected disclosure that will be treated as unfair dismissal
• in any event workers are given a new right not to be subjected to any 'detriment' by their employers on the ground that they have made a protected disclosure, and to present a complaint to an employment tribunal if they suffer detriment as a result of making a protected disclosure
Click here for more detail of exceptions to the two year rule including automatically unfair dismissals
Breach of contract claims
Remember it is perfectly possible to face a claim for breach of contract. It will not protect you if the person has been working for under two years. In the last few days we have been advising a business on a breach of contract claim that has been rumbling on since 2016!
So how can you minimise the risk of facing an Employment Tribunal action in 2019?
Obviously take advice - as our clients frequently point out, they don't always know when they are navigating a minefield and when they are on safe ground.
Ensure that the people who manage your HR and employment law are aware of the laws surrounding the area. A good HR person can save you a fortune! They will understand the need for full and fair investigations and correct rules of natural justice when managing a disciplinary or grievance hearing, or deciding on dismissal.
Please note, the information in this article is provided for guidance only, and is not intended as a substitute for specific legal advice in any given situation.
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