Can an employer…

Here are a selection of the most commonly asked HR questions we receive and our responses*.

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A: You can, if it is for the purposes of determining whether the candidate is disabled and would require any adjustments to the workplace environment or working practices, such as working hours.

If “blanket” questions are asked about health related issues without any foundation, and recruitment decision are made as a result, there is a risk that a candidate could have grounds for a claim of disability discrimination.

A: You can, as long as a fair and non-discriminatory process has been followed.

There is a common misconception that employees who are pregnant or on maternity leave (or absent from the workplace having exercised another family leave entitlement) are protected against being selected for redundancy. That is not correct. If they are unfairly selected on discriminatory grounds, or the process is tainted with discrimination, there could be grounds to claim pregnancy-related or sex discrimination.

Special care does have to be taken to protect against such employees being automatically selected because they are absent from employment, or that their work/performance is assessed less favourably based on results covering the period when they were/ are absent. Likewise, periods of pregnancy-related illness should be discounted.

Employers can and, in certain cases which could lead to complaint from other employers, should include employees on maternity leave in redundancy consultations to ensure that they are as well informed as their colleagues about the redundancy exercises.

A: You can, although it is advisable to follow a sickness absence process before doing so.

If you have fully explored the diagnosis and prognosis of the employee’s health and determined whether or not they are disabled within the meaning of the Equality Act 2010, including obtaining medical evidence, consideration can be given to terminating employment. These steps will assist in defending a claim that the termination was an act of disability discrimination.

A: Yes, if there are genuine grounds for doing so and it is not purely for the basis of blanket monitoring of personal use of the IT system, although employees are entitled to a reasonable expectation of privacy.

Case law examples of fair access by an employer include:

– Access to an employee’s personal emails are where the personal emails had impacted on work matters and the emails were sent to the work addresses of the recipients, having a resultant effect of distressing colleagues and affecting their work.

– Access to chat software used during working hours, where the employee has engaged in lengthy communications with friends and family members, and was not therefore carrying out their duties during working hours.

Ensuring that employees are informed of what is deemed as acceptable usage and that their communications could be monitored under Data Protection Policies is key to mitigate against the risk of claims for illegal or onerous monitoring of IT systems.

A: Yes, depending on the reason the employment was terminated.

If it was a gross misconduct dismissal, then there is no entitlement to notice or a payment in lieu of notice (PILON). Outstanding expenses payments, accrued salary to the termination date and accrued by untaken annual leave are payable.

In all other termination situation, notice pay or a PILON will usually apply.

If you have the contractual right to do so, you can withhold pay or make a deduction from final pay in respect of company property which has not been returned or in cases where an employee has taken more holiday than what they are entitled upon the date of termination.

A: When faced with the difficult decision about making redundancies, employers often know who they want to retain, and which employees are not performing as well. Alternatively, they want to keep longer serving staff members in recognition of their contributions and knowledge of the business.

However, making pre-determined decisions about redundancies can lead to claims for unfair selection for redundancy (which is an unfair dismissal claim).

The best way to minimise the risk of claims is to carry out a fair and transparent redundancy and consultation process, which includes an assessment of employees both “on paper” and, commonly, by way of an interview process.

It is often the case that the initial thoughts on which employee will be made redundant prove to be accurate, as employers have formed their preliminary views based on facts over performance and skills, but failing to follow a proper process can lead to costly outcomes.

A: For employees with less than 2 years’ service, there is no ability to claim unfair dismissal or to criticise the lack of any formal disciplinary process. For employees who have accrued two years’ service or more, failing to follow a process can give them grounds to claim unfair dismissal, even if the dismissal itself is considered fair.

Where there are concerns that the employee may have grounds to claim discrimination if the dismissal isn’t carried out fairly, it is usually sensible to take a more cautious approach and follow a formal disciplinary process.

* The comments given above are based on generic observations to hypothetical questions and do not relate to specific factual situations. In no way should the comments be relied upon and separate advice should be taken.