Avoiding Scary Discrimination Lawsuits

We’ve managed to make it through Halloween this year, but there can be some really scary situations that HR professionals and their organizations have to face all year long.

According to a recent article by Alexandra Bonner and Emily Kearsey that appeared on the Personnel Today website, some theoretical situations could end up being a real horror in a discrimination lawsuit if not handled correctly.

Can Depression Delay a Disciplinary Hearing?  What if you were to find out one of your workers had been cooking the books? In this situation, Bonner and Kearsey set up the what if the employee manages to produce a fit note for depression just prior to the disciplinary hearing that has been scheduled to address the matter. It becomes a situation where there are two separate considerations to weigh.  Do you call off the meeting altogether in order to address the welfare of your worker, or do you go ahead as planned?

Bonner and Kearsey suggest writing to the employee in question to see if they are willing to attend the meeting.  A sign off from work does not necessarily mean that the worker is unable or unfit to engage in the process. If the worker refuses it is advised that management wait until the period of the fit note expires.

If the worker continues to produce similarly written excuses or fit notes, it is possible that the worker is asked to submit to a medical examination by an occupational health specialist, for example. Because of HIPAA laws, the company would need the worker’s consent. If it comes out that the worker is unfit, then the organization may not be able to do anything about it.

Holding a disciplinary proceeding without the employee present may be the last resort. However, in doing so, the door has been opened to the possibility that the worker in question could lead to a legal claim of unfair dismissal. This should only be done as a last resort and if there is no other way to resolve the situation.

Pregnancy and Poor Performance – Similarly, if you have a worker, for example, even if she has not made it past her probationary period and her performance is far below par, and she informs you that she is pregnant during her exit interview, she could have a very solid case for unfair dismissal or even a discrimination lawsuit, in spite of her poor performance on the job.

Even without having been on the job for a full two years, unless there is solid evidence of her poor performance, the conclusion could be made that the reason for her dismissal was because of her pregnancy. For an employer to be able to make a case against allegations of discrimination or unfair dismissal there needs to have been documentation that clearly demonstrates her poor performance was the root cause of her dismissal and not her pregnancy.

Other Business Concerns – Of course, these are not the only situations that can cause hair-raising problems in terms of human resource concerns. If for example, the person you hired to be your front office representative suddenly begins coming to work in an unkempt and less-than-professional state, you as the employer are well within your rights to subtly pull them aside and request that they pull themselves together. Dress codes are in place for a reason. Companies should always be mindful about not making any discriminatory types of requirements regarding a dress code. Requiring your receptionist to wear a skirt, heels, and makeup, for instance, might be considered crossing the line into an area of discrimination.

What if you suspect your employee might be poaching your clients and contacts and diverting them to their business? Would suspension be an option to take in order to protect your business? It might not be the best of ideas in the long run. There are just a handful of situations where a suspension is necessary and in the case of sales personnel, for example, if they are paid on commission, have an implied right to work without necessarily having breached the trust and confidence of you the employer.

If, however, there is a real concern that having the suspected worker on the premise risks clients, fellow employees or if there is a genuine concern that they will attempt to destroy evidence or ultimately undermine your business, a suspension may appropriate.

Of course, whenever a company is facing any such instances, leaders are encouraged to seek the advice of their legal counsel in order to avoid making a problem an even larger one that ends up in court.

NetPEO along with our professional partners will be there to help you in addressing your company’s personnel needs. We offer a wide range of services which include payroll services, managing employee benefits, liability management for employers, brokerage services, and employee leasing.

Contact us today to discuss your company’s current needs and to schedule a free assessment.