Guides & Advice

A note from the experts: navigating employment law

Published: 30th April 2021
Area: Corporate & Commercial

Increasing regulation has made it easier than ever for dissatisfied employees to successfully make a claim to an employment tribunal.  In order to understand and overcome potential difficulties, it is helpful for employers to have a detailed understanding of their legal obligations.

The following provides guidance on what an employer’s rights are in some of the most common disputes arising and what action can be taken.

Disciplining a contractor

Some businesses may choose to outsource maintenance to a contractor, but what would happen if one of the contracted staff was in breach of your code of conduct?

When you enter into an agreement with a third-party contractor, there are several contractual obligations that can be included within your agreement – requiring contractors to follow health and safety rules or a specific code of conduct may be one option.

In the event those rules or your code of conduct breached, it is strongly advised that you do not discipline the contractor yourself to avoid running the risk that they could be considered as your employee

Instead, you should put pressure on the company that supplied the contractor to take appropriate action. If they refuse to do so, you may be left with no choice other than to cancel the contract (in accordance with its terms) and find a new contractor.

Ensuring staff follow Covid-19 regulations

As an employer, you are unable to police what your employees do in their own free time, despite the fact it could lead to reputational damage for your business, and misconduct issues for the employees involved on occasions.

If rumours were to surface that staff were planning to break the rules, it is important you handle it sensitively. Failure to do so could lead to employees arguing that you have broken their trust and confidence.

Rather than directly intervening, a good alternative would be to issue an email to all staff urging them to follow the rules, with a reminder of the potential consequences on their employment if they don’t. If there is a policy on managing Covid-19, then staff should be reminded of it.

Disciplinary action should only be taken if you have proof that regulations are being breached and your company’s reputation is damaged as a result of that your own policy has been breached, otherwise you risk a constructive dismissal scenario.

Enforcing diversity training

Although not always popular with employees, making diversity and inclusion training compulsory is a form of best practice and also has the potential to limit the legal liability of you as an employer, should a discrimination claim be made.

Implementing the training sooner rather than later and ensuring the entire workforce is involved, can prevent incidents from happening. Refresher courses should be undertaken regularly, ensuring new and existing employees alike are aware of how they should behave in the workplace, and outside of it. To improve engagement, sessions should be carried out both in person and online, giving staff a choice as to how and when they take part.

By introducing compulsory training, you can also protect your business against discrimination claims. In the event a claim is raised, you can rely on a ‘statutory defence’, whereby if you can prove that you have taken reasonable steps to stop discrimination in the workplace, then your legal liability may become limited or removed altogether. Disciplinary action should only be taken if people still refuse to attend the sessions once they are made mandatory.

Setting up regular training and monitoring attendance can help safeguard your business against potential employment tribunal claims.

We’re here to support you, whatever approach you decide to take.

Contact a member of our employment team to see how we can help you to unlock your potential.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience covers everything you need to navigate your business out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.  

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