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Adverse Action - what you need to know

May 1, 2018

 

For most managers, Adverse Action is something that doesn't really impact on them, as long as they get on with managing staff, however, many of your daily actions could constitute an Adverse Action, if you are not clear about the reasons for the decision making behind them and an employee considers that you have denied them some entitlement or benefits, because of a particular protected reason, such as discrimination, the employee has made a complaint, or they are a member of a union.

 

An adverse action is a negative action, which results in a denial of benefits, and everyday management actions could end up being challenged as adverse action if they meet these criteria.

 

As well as termination of employment, an adverse action could be considered in relation to 

 

- Altering their role negatively (e.g. reducing their responsibilities),

- Not recruiting someone,

- Injury (including psychological),

- Providing staff with training,

- Promotion or higher duty opportunities.

 

... and anything else that could be related to the workplace.

 

Employer provides the evidence

Unlike most other claims, the onus of proof is on the employer (you need to prove that the reason for your decision or action, was because of a factor which was not discriminatory or did not relate to their protected reason), and the fines are uncapped.

 

So what can you do to make sure that you are not inadvertently taking adverse action on your team members?

 

 

Be clear about your decision making

Both to yourself and your team, make sure there are specific reasons behind your decisions. For example ,did you give everyone in the team the opportunity to express and interest in higher duties and then select based on a transparent criteria, or did you give it to the person who you have the best relationship with?  Even if you are making a quick decision, for example, who gets to take leave when, if you decline one person, and accept another, make your decisions on the business needs and consideration of any personal circumstances and document it, so that it is on record.

 

Communicate your decision making

Make sure that those who are impacted are aware of how the decision was made.  This also extends to candidates who did not get the job.  Without communicating anything to them, they will make assumptions that they didn't get the job because they have parental responsibilities or they are too old etc, and although it they may not take it further, it has the potential to create reputational damage, which can easily be avoided with a simple email to explain the reason and invite them to apply for future roles.

 

Examine your assumptions about what discrimination is

This sounds obvious at first, but discrimination is not just about ethnicity, gender, age and sexual orientation, but can be more subtle based on assumptions about for example, someone's availability if they have children (see some of the comments made in the media about New Zealand Prime Minister, Jacinda Ardern), whether someone young can lead a team, or if and older person is "probably thinking about retirement soon" (yes, I have heard that comment, but fortunately we hired and this theory was proved wrong).

 

Document and follow your policies and procedures

If you have policies and procedures in place, the best way to ensure that you don't treat staff adversely, is to follow the documentation you have in place.  Ensure that you have a schedule for regularly reviewing your policies and procedures and that staff have received training.  This way everyone will be clear about how decision are made and the documentation will be in place if follow up is needed.

 

If you have any questions, or you would like HR support for your team, please contact me.

 

 

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