What can and can’t an employer do?

7th January 2022

This article takes a look through some of our frequently asked questions.

Can I ask a health-related question during a job interview?

Only for the purposes of determining if any adjustments need to be made to the workplace or working practices, such as working hours. Blanket questions about health issues which are asked without any basis and which result in recruitment decisions being made could give rise to claims of disability discrimination.

Can I dismiss an employee on long-term sick leave?

You can, however it is advisable to follow a sickness absence process before doing so. If you have fully explored the diagnosis and prognosis of the employee’s health and determined whether or not they are disabled within the meaning of the Equality Act 2010, including obtaining medical evidence, consideration can be given to terminating employment. The above steps will help defend a claim of disability discrimination.

Can I view and use an employee’s personal communications as a reason for taking disciplinary action?

Yes, if there are genuine grounds for doing so and it is not purely to monitor personal use of your IT system. However, employees are entitled to a reasonable expectation of privacy.

Examples of fair access to an employees communications include:

  • Access to personal emails where the emails had impacted on work matters and the emails were sent to the work addresses of the recipients – having a consequential effect of distressing colleagues and affecting their work
  • Access to chat software used during working hours where the employee has engaged in lengthy communications with friends and family

Can I choose which employee to make redundant?

When faced with the difficult decision about making redundancies, employers often know who they want to retain, and which employees are not performing as well. Alternatively, they want to keep longer serving staff members in recognition of their contributions and knowledge of the business.

However, making pre-determined decisions about redundancies can lead to claims for unfair selection for redundancy – an unfair dismissal claim. The best way to minimise the risk of claims is to carry out a fair and transparent redundancy and consultation process, which includes an assessment of employees both “on paper” and, commonly, by way of an interview process.

It is often the case that the initial thoughts on which employee will be made redundant prove to be accurate, as employers have formed their preliminary views based on facts over performance and skills, but failing to follow a proper process can lead to costly outcomes.