FIVE EMPLOYMENT LAW RISKS EMPLOYERS MAY NOT HAVE SPOTTED

There is so much employment law change taking place that some of the less obvious risks can easily disappear beneath the headline reforms.

Here are five which I think are worth checking.

1 A substitution clause may create a right-to-work problem

If you engage individuals through subcontracting arrangements which allow them to provide a substitute, don't assume right-to-work responsibility necessarily sits somewhere else in the contractual chain. The changes taking effect in October make this an issue worth examining now.

2 Third-party harassment isn't just about sexual harassment

Much of the discussion about the 30 October changes has concentrated on sexual harassment. But the restored third-party harassment liability extends more widely across the Equality Act harassment regime. Customers, clients, contractors and members of the public can therefore create exposure involving race, disability, religion or belief, age and other protected characteristics as well.

3 Outsourcing may create an automatic unfair dismissal problem from January

From 1 January 2027, dismissing employees and replacing them with contractors or agency workers carrying out substantially the same activities will generally be automatically unfair. That is different from a genuine redundancy where the activity disappears, and different again where TUPE transfers the employees with outsourced work. There is a limited financial-difficulties exception.

4 A whistleblowing dismissal can require a defence almost immediately

Interim relief applications have a seven-day time limit. An employer can therefore find itself needing witness evidence, investigation material, internal communications and a coherent response within days of dismissal. AI may make these applications easier for employees to identify and pursue.

5 Having Employment Practices Liability Insurance doesn't necessarily mean you're covered

EPLI may cover defence costs, settlements, damages or Tribunal awards, depending upon the policy. But policies may require early notification and insurer involvement in the handling of an emerging dispute. An employer which manages the problem itself and tells the insurer later may find that it has prejudiced its cover.

None of these is particularly obscure once you know about it.

The problem is knowing about it before the event that creates the liability.