“I have a business to run.”
“I need to be able to rely on someone.”
“I put a lot of effort into this work, my friends are also making a lot of effort. If we’re going to continue to be ‘on-and-off’, maybe let’s talk about charting a different path.”
I can hear some of our previous clients making the comments above. These are comments by an employer who has just lost a discrimination case at a recent Employment Tribunal.
The short version is, the ET found that the employer failed to make an ‘effort’ to put measures in place to enable a disabled employee to work. The employee won claims of direct discrimination and discrimination arising out of disability. The employee was employed from 1st September 2021 until the end of November 2021. The employer applied no sickness policy or attendance management procedures, provided no written terms and conditions and made no effort to stop the employee from resigning.
The employee’s lawyer stated that the claim was a ‘useful reminder’ for employers to be mindful of their communication and understand that employees with under two years’ service can bring such claims regardless of length of service.
Whilst this isn’t a very common issue for our clients, thankfully, it is useful to consider the rules around dismissal and constructive dismissal for those employees who have under two years’ service.
There is a real belief from some employers who think that just because an employee doesn’t have two years’ service, then they can be treated however the employer likes.
This isn’t necessarily true. The average employee with under two years’ service DOES have less employment rights than the average employee with longer than two years’ service. However, a word of caution… when said employee meets one of the protected characteristics then the employment rights change.
We know we aren’t exercising good practice if we are simply dismissing someone because they have less rights due to their service but we do need to be aware of the protected characteristics that have been shown in the case above.
The employee (in the ET case above) had under three months’ service. If they were one of our clients’ employees they would still be within their probationary period, so we would be monitoring their suitability anyway. We would certainly be considering any reasonable adjustments we may require to consider relating to their disability. Not just because the award is uncapped for disability discrimination alone, but because it is also good practice and the right thing to do to look after your workforce regardless of the duration of their service.
Check out the case of Mr D Barrow v Kellog Brown & Root (UK) where the ET awarded Mr Barrow £2,567,831.97 for unfair dismissal and disability discrimination – the second largest disability discrimination award.
So to keep us right we need to remember that The Equality Act (2010) states age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation are all characteristics that are protected. We also need to consider the different types of discrimination of ‘direct, indirect, harassment and victimisation’. It’s a real complex world!
Be careful folks. Do your best and keep your moral compass pointing to honesty.
I hope you find these articles informative and interesting. I’d love to know what you would like to hear about next. Just drop me an email at email@example.com. In the meantime, enjoy the rest of the magazine and keep #doingHRright