Some Employment Issues to consider
In the area of legal hazards in HR, Newman HR doesn’t always claim to be original in everything we write. Here is a list we came across recently which you may find useful.
Most employers realize that employment law really is a minefield. Do something wrong and it blows up in your face and it can be costly and time consuming to put right. We have listed below 10 areas where you might want to think about minesweeping any potential legal hazards – just in case!
1. Providing Particulars
At one time this was an administrative error. Now it’s a legal hazard as if an employee brings a tribunal claim and is successful further compensation of between 2 and 4 weeks may be payable where if the employer has failed to provide written particulars.
2. Vicarious Liability
Employers are liable for their employee’s discriminatory acts even if they did not know about them. Discrimination legislation is a major legal hazard as it says anything done by a person in the course of their employment shall also be treated as done by their employer even if it was done without the employer’s knowledge or approval.
There is a defence; if the employer can prove that reasonably practicable steps were taken to prevent the discrimination taking place e.g. a comprehensive diversity policy was in place alongside regular diversity training.
3. Vicarious Harassment
The House of Lords recently confirmed that employers can be vicariously liable under the Protection from Harassment Act 1997 if employers are subject to unacceptable behaviour on at least 2 occasions which equates to harassment.
The harassment is not necessarily based on unlawful discrimination and the limitation for bringing an action is 6 years. Making people aware of this could prevent your organisation falling foul of the law.
4. Third Party Harassment
It is not just employees harassing each other but if say customers harass your employees and you do nothing about it then again you could be liable. See 2 above for an outline defence.
5. Redundancy & Maternity Leave
You can’t can you?
But sometimes, due to events beyond your control, you may have to, above all, remember out of sight is not out of mind. Funnily enough it is mandatory to discriminate in favour of the pregnant woman in these circumstances and she has the priority right to be offered any suitable vacancy otherwise it is an automatic unfair dismissal and could also be sex discrimination. Be sure also to issue written reasons to any pregnant woman being made redundant.
6. Information Requests
Another legal hazard is that employees have the right to request all sorts of information from their employers through questionnaires freedom of information requests etc.
One of the more obscure areas is the right to written statements under the part time worker and fixed term employee regulations. Failure to comply within 14 days can result in the employer being asked to pay up to 80 times the relevant minimum wage. Keep records and respond promptly.
7. Redundancy Calculations
If you make someone redundant always provide a written statement showing how the redundancy pay was otherwise you could be liable for a £200 fine and potentially a criminal record.
8. Time Off During Redundancy
Don’t forget you are required to allow your employees facing redundancy paid time off during their notice period to look for another job. If you don’t you may be faced with paying the employee up to 40% of an employees weekly pay. For large scale redundancy programmes it will be prudent to set out a policy laying out the scope of such time.
9. Changing Terms & Conditions
TUPE is its own minefield, beneficial changes to the transferee are acceptable detrimental ones are not. You can try to minimise the risk by establishing terms are granted in such a way to minimise the risk of cherry picking or being more extreme – sack the lot and then rehire on new terms, then of course you risk unfair dismissal claims.
Be careful of the legal hazards and use the right words otherwise you will be in front of a tribunal trying to justify your actions. The tribunal would consider the surrounding circumstances alongside how the words would be understood by a reasonable listener. Approach these matters carefully and avoid ambiguity.