'Small mistakes can be costly, especially in human rights scenarios': lawyer
One thing that all employers have in common - regardless of their industry, size, and even their level of automation – is that they have people working for them. As HR professionals know, the “human” part of “human resources” is an important element to keep in mind every day – particularly the fact that the “human” part has rights.
Unfortunately, many employers don’t pay enough attention to workplace human rights, with one of the biggest problems being a lack of training for HR people and management on how to handle sensitive issues, according to Christopher Achkar, an employment lawyer and principal of Achkar Law in Ottawa and Toronto.
“Too many employers just read information online and assume that they can execute on that information without paying attention to certain issues,” he says.
A lack of proper knowledge on handling difficult and sensitive circumstances can be exacerbated by a lack of documentation, something Achkar says he sees too frequently in his practice.
A lack of training and knowledge on human rights issues often leads to key mistakes that can land an employer in hot water. For example, employee rights around probationary periods is a big issue that employers often stumble over, says Achkar.
“Many employers and HR folks wrongly assume that these employees don't have similar rights,” he says. “But even during a probationary period, employees are owed a proper chance of succeeding at their position - they can't just have the rug pulled from under them without the proper chance to succeed.”
Human rights during probationary period
Where this misconception can add to liability is if human rights issues come into play for a probationary employee.
“They assume that because employees are on a probationary period, if HR issues come up, they can still justify a termination without proper attention being paid to issues such as accommodation and poor performance,” says Achkar. “If someone has some issues and needs accommodation during a probationary period, an examination of accommodation options would be needed - sometimes employers assume that as long as the employee is on probation, they have blanket immunity to do whatever they want with that employee.”
The duty to accommodate overall, whether for probationary or regular employees, is an area where employers often make missteps and it accounts for the majority of workplace human rights cases, according to Achkar.
“Accommodation for disability, pregnancy, or family status – such as needing to take time off to care for your kids or your parents who are ailing – those are requests that employers many times feel that they do not have to accommodate or entertain because their business is too small, or they're understaffed, or the budget doesn't allow for it. There are varying justifications that actually are not real justifications in the eyes of the [human rights] tribunal,” he says. “It's not just any hardship, it's undue hardship [to justify no accommodation] and every employer has to provide something before it becomes too much.”
‘Proceed with caution’ with human rights
Workplace human rights has its challenges for employers and it doesn’t take much for a discrimination complaint to be filed. HR can play an important role to ensure that their organizations are taking the right approach when human rights issues come up in the workplace, and to put the organization in a strong position before something even comes up.
“Always proceed with caution, as opposed to proceeding with speed, and approach every scenario with caution – that’s the safer approach,” says Achkar. “Do your due diligence, and more due diligence rather than less, and document what happens.”
It’s also a good idea to speak with an expert on human rights issues, whether they’re outside or inside the organization.
“Small mistakes can be costly, especially in human rights scenarios, because they could lead to general damages and also lost wages,” he says. “Those add up quite quickly if someone can't get another job after being discriminated against, so it’s always worth spending time and money on prevention and doing things carefully before executing, rather than costing the company an arm and a leg due to discriminatory actions.”
The role of HR is an interesting one and is somewhat unique in each organization, but cautious action and reaction can help HR professionals protect their organizations from potentially significant legal and reputation trouble that can come with a discrimination complaint, says Achkar.
“Many see HR as the face of management, but I think HR isn’t just about following rules or putting together numbers - it has an element of communication and engagement with all the stakeholders of the company,” he says. “That potentially avoids a lot of liability from employees misconstruing something and feeling like they don't have a recourse to help them.”
