HR professionals frequently advise on the risks of dismissing an employee. Where the employee has less than two years’ service, and therefore no “ordinary” unfair dismissal rights, HR advisers will often explore whether the employee has any protected characteristics (see text boxes) that could have influenced the decision to dismiss. An employee who can show they have been dismissed because of a protected characteristic will not require two years’ service to bring a claim, and their compensation is uncapped.
However, as the boundaries of discrimination protection widen in the courts, it is getting harder for HR to advise without probing more deeply.
Set out below are four additional questions for HR to ask before they advise it is safe to dismiss, along with rationale on ‘why should you ask’, and some practical examples.
- Does the employee have a “hidden” disability?
|Why should you ask?||Many conditions, particularly mental health conditions may not be obvious to an employer, but could still amount to a disability. Examples include Asperger’s Syndrome and dyslexia. Employers can inadvertently breach an employee’s rights if they don’t realise that their duties have been triggered.|
|For example…||An employee is dismissed for repeatedly missing deadlines. They have told their line manager they are dyslexic, but the manager doesn’t realise this could be a disability and no reasonable adjustments are made.|
|Practical tips||Employers cannot ignore indications that disability might be an issue. An organisation will be liable if there were clues which ought reasonably to have put them on notice of the disability or reasonably required further investigation – or if they were actually told about the disability but failed to appreciate the significance of the information.|
- Is the employee associated with someone who has a protected characteristic, for example in their family?
|Why should you ask?||There are scenarios where an employee can bring a claim based on the protected characteristic of someone they are associated with, for example, a family member. This is known as “associative discrimination”.|
|For example…||An employee is dismissed because their child is disabled and their line manager thinks it is affecting their performance – but has no real evidence to base this on. The employee could argue this is discrimination based on their association with a disabled person (their child).|
|Practical tips||Clearly it is not practical for employers to know about everyone an employee is associated with, but HR should ask decision makers, such as line managers or those dealing with disciplinary processes, whether they are aware of any such issues, or whether an employee has explained the issues by reference to a third party.|
- Do your policies create unconscious bias, or inadvertently target a protected group?
|Why should you ask?||Where a policy, procedure or requirement adversely affects a group that shares a protected characteristic then a claim of indirect discrimination may succeed if the employer cannot show a good business reason for it: even if it’s unclear what causes the adverse effect.|
|For example…||An employer imposes a written test on employees, who will be dismissed if they fail. Certain groups sharing protected characteristics have a track record of doing worse than average in the test. But no one knows why so there’s no clear link to the protected characteristic.
Nevertheless a dismissal on this basis could be indirect discrimination provided the employee can show they are part of a group sharing a protected characteristic (for example, a particular ethnicity) that is adversely affected in comparison to a group without that characteristic, and the employer cannot objectively justify the practice.
|Other things to note||This occurred in the Essop v Home Office case, in which the claimants were able to show that older black and minority ethnic (“BME”) candidates, on average, scored lower on a promotion assessment than candidates without those protected characteristics. They could not show the exact reason for this, but nevertheless the courts ruled this was no barrier to them bringing a claim for indirect discrimination.|
- Is the employee perceived to have a protected characteristic?
|Why should you ask?||Claims for discrimination can arise even where the employee does not actually have the protected characteristic they say was the reason for their treatment – but they are perceived to have it.|
|For example…||An employee is the subject of homophobic bullying at work on the (incorrect) assumption they are gay. They resign and claim constructive unfair dismissal and discrimination on grounds of sexual orientation.|
|Practical tips||It can be tempting to assume that because the protected characteristic in question doesn’t actually apply, there is no risk of a claim on that basis, but this is wrong.|
What does this mean for employers?
The four questions above should help to flush out some of the hidden risks of dismissals where discrimination claims may be lurking under the surface.
But HR also need to know what not to ask. For example, where there is no indication at all that an employee may have a disability, HR should avoid actively inviting new information from the employee that might subsequently put the employer on notice of a disability.
There will be occasions where this is a tricky balancing act. We can assist you with scripting a discussion when you are unsure of whether to get everything out in the open, or whether to let sleeping dogs lie.
In the UK, the Equality Act 2010 (the “Act”) sets out nine “protected characteristics”. It is unlawful to discriminate against an individual because of a protected characteristic: