Ninety Day Grievance Free Period: Is it going to be that simple?

The government has delivered on its election promise to give employers the right to terminate an employee undergoing a trial period with notice but without the risk of personal grievance action: But is it going to be that simple? The short answer is a definite No.

The one thing employers can rely on is that discrimination claims will become the flavour of  the month where dismissals occur during the trial period.

According to the Hon Kate Wilkinson, Minister of Labour, this change will allow "people at the margins of the labour market, the long-term unemployed people, young people, people returning after absences for childrearing or sickness, people with disabilities or mental illness, migrants, people with overseas qualifications, and people with convictions” a better opportunity of getting “their foot in the door”.

Putting to one-side people with criminal convictions, the rest will retain during the trial period protections against the frequent discrimination they face in employment.

What the Minister of Labour forgot to explain or did not know was up until now discrimination law is the most under-used area of employment law. The reason for this is simply that it has been easier to argue unjustifiable dismissal or disadvantagement than discrimination on prohibited grounds.

The list of prohibited grounds presents a minefield for the unsuspecting employer. All up there are 14 including sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation. Therefore where the employer, by reason directly or indirectly of any of the prohibited grounds, dismisses the employee, the employee can challenge it. Similarly if the employer subjects the employee to any detriment in circumstances in which other employees, employed by that employer, are not or would not be subjected to that detriment, then the employer may have a case to answer.

You may ask what a detriment is: It includes anything that has a detrimental effect on the employee’s employment, job performance or job satisfaction.

But there is more: If for the same reason, you require the employee to retire or cause that employee to retire or resign, then “yep, that is discrimination”. And there is more: If you don’t offer the employee the same terms and conditions, fringe benefits, opportunities for training, promotion, etc as other employees of the same or substantially similar qualifications in the same or substantially similar circumstances then again “it is discrimination”.

It takes little imagination to realise that lawyers and advocates will be looking for facts that allow discrimination claims to proceed and by-pass the ninety grievance free rule. Therefore, the one thing employers can rely on is that discrimination claims will become the flavour of month during the trial period.

Consequently, the Minister of Labour is wrong when she says there will be a “lowering” of the “legal risks employers face”. And, while she maybe right in saying employers “will be more confident in giving people the opportunity to prove themselves” such confidence will have been more to do with what they heard the Minister and the supporters of the law change say about the law than an understanding of the law itself.