Could Recruitment Agencies become Employment Law Advisors?
Written by Brian Rogers Brian Rogers FCMI - Regulatory Director at The Access Group
Covid-19 has created all sorts of problems for employees, and some of these are likely to lead to some form of litigation against their ex-employers in the future.
With so many employees having lost their jobs, or at risk of losing them once the furlough scheme comes to an end, recruitment agencies will be faced with many candidates not only looking for a new job, but also advice on how they can seek recompense from their previous employers for various actual or perceived breaches of employment law and other legislation.
It has become apparent that some employers have claimed furlough payments from the government but have then asked (forced) furloughed employees to work in breach of the rules; with HMRC on the warpath looking to prosecute those involved in this type of fraud, many employees who were forced to work may want to cover their backs by whistleblowing on their employers so they don’t get prosecuted.
Many employers will not have wanted or been able to access legal advice on redundancy handling, and may therefore have acted without appropriate advice, leading to employees being selected for redundancy for the wrong reasons, for example, mothers on maternity leave, disabled staff being unable to work from home.
Health & Safety
All employees are entitled to work in a safe environment, and if they believe their employer has not taken reasonable steps to protect them from Covid-19 can refuse to return to work until such times as it is safe; some employers may decide to dismiss staff for such a refusal but could as a consequence find themselves in real trouble, not only for unfair dismissal but also for whistleblowing breaches.
Poor redundancy selection
In times of crisis some employers decide to bring up previous issues they have had with employees as a justification for their selection for redundancy, however this is a very risky strategy. Some employers have “problem” employees (deadwood) but choose to bide their time before getting rid of them, however, if they don’t address such issues through their disciplinary procedures at the time they can’t them raise these issues later to try and justify their selection.
Pay & benefits
Some employers as a way to reduce their costs, have put pressure on employees to opt of their workplace pension schemes in breach of pension legislation; the Pensions Regulator has already identified this issue and has said it will take appropriate action against offenders.
Other employers have refused to pay staff who are coronavirus patients experiencing long term health problems their entitlement to sick pay due to them not having been tested and therefore having no proof of having had the virus; some employers are not accepting notes from GPs that state ‘not fit for work due to suspected post Covid recovery’ or ‘long tail Covid recovery.’
It is clear that the after-effects of Covid-19 are going to be with us for sometime to come, so it is key that recruitment agencies and their staff don’t advise on topics they are not qualified or experienced to advice on; they should either refer candidates to suitable lawyers, or even use this as a business opportunity to expand into the provision of employment advice to candidates.
With individual solicitors now able to operate through unregulated businesses it may be worth recruitment agencies considering taking on an employment solicitor who can advice candidates on their employment rights, with agencies retaining the fees charged; in the face of adversity there are always new business opportunities!
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