Can you ask applicants about their health?

Until recently, you were allowed to ask candidates about their health before offering them a job. But now, these so-called "pre-employment medical questionnaires" could leave employers open to claims.

If a candidate doesn't get a job, and they think it is because of their ill-health, enforcement action could be taken or the individual could even claim discrimination. The employer may be able to show that the individual wouldn't be able to carry out an essential feature of the job because of their condition but, if not, the employer will have to prove there was another reason the candidate was unsuccessful.

This has been introduced to reduce the stigma and prejudice associated with some medical conditions such as depression and HIV. Once an offer has been made, a medical can still take place but if reasonable adjustments are needed, then the employer should take them.

For more help or advice on what you need to do, email me at jen@thehrexperts.co.uk

Harrassment & Victimisation

Harassment is described as unwanted conduct which has the effect or purpose of undermining a person’s dignity.

But what if the employee is saying they are being harassed, but you think they are making a mountain out of a mole hill?

In the event that differing perspectives are argued by the employer and employee, the tribunal would consider how a reasonable bystander would judge the situation and make a decision based on this.

Victimisation involves treating an employee less favourably. In a basic sense, this means being treated unfairly.

A tribunal would be likely to find in an employee's favour if victimisation is on the grounds of a 'protected characteristic' (sex, race, disability etc). But, victimisation could also arise from other issues. For example victimisation due to whistle blowing or supporting another employee who is making a complaint could also lead to a successful tribunal claim.

Shopping List approach to Tribunals

Employees placing claims at Employment Tribunal are increasingly adopting the ‘shopping list’ approach.

This means that a number of alternative claims are submitted. For example, an employee may contest that, in the event a tribunal finds they were not wrongfully dismissed an alternative claim that they were unfairly dismissed is proposed.

Claimants are hedging their bets by posing different scenarios to the tribunal. Similarly, the respondent can pose arguments for the different scenarios, however needs to be wary of not tripping themselves up by making contradictory statements.

Discrimination claims

Discrimination doesn't have to be nasty or intentional. Claims on grounds of a 'protected characteristic' can arise from either direct or indirect discrimination.

There is no defence for treating someone less favourably if the reason is because of their membership of a protected group.

A discrimination claim would be valid even if the employer thinks they are acting in the interest of the individual. An example of this would be where an employer may be concerned about the safety of an employee in a particular role because of their ethnic background. The protected characteristic is STILL the main reason for treating the individual differently.

Indirect discrimination could be where protected groups are detrimentally affected by a practice or a policy, even though there was no direct intention to do so. For example, expecting shift work as a condition of employment may indirectly discriminate against women who are more likely to have caring commitments.

For more help or advice, email me at jen@thehrexperts.co.uk