Table of Contents
- Who Can Bring a General Protections Claim?
- What Are the General Protections?
- What Constitutes Adverse Action?
- Can Small Businesses Be Subject to General Protections Claims?
- What Should I Do if I Receive a General Protections Claim?
- What Are the Consequences for Breaching the General Protections?
- Key Takeaways
What Are General Protections Claims?
General protection claims protect employees from unfair treatment by your business. Notably, the person making a general protections claim does not have to be an employee. Understanding your legal duties is critical as an employer. This article will explain what:
- a general protections claim is;
- the general protections are; and
- the consequences of a successful claim against your business.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Who Can Bring a General Protections Claim?
Anyone who is part of the employment relationship can bring a general protections claim against your business. This includes:
- employees;
- prospective employees; and
- independent contractors.
Any of these individuals can bring a general protections claim against your business. It is important that you keep the general protections in mind when engaging with anyone your business has hired or is looking to hire in the future.
What Are the General Protections?
The general protections are a set of provisions that protect anyone your business has hired or is looking to hire. They cover two main areas. First, if you take ‘adverse action’ against someone because of their personal attributes or workplace rights, your business is at risk of a general protections claim.
In simple terms, general protections protect employees from being discriminated against because of:
- age;
- race;
- sex;
- sexual orientation;
- pregnancy;
- religion; or
- physical or mental disability.
Notably, there must be a link between your adverse action against an employee and their protected attribute or right. Accordingly, suppose you terminate a person’s employment with your business after they inform you of their upcoming pregnancy and plan to take parental leave in six months’ time. In this scenario, your adverse action of terminating the employee directly links with their protected right.
Further, it is important to remember that general protections claims will be separate from discrimination claims.
Second, you cannot take action against your workers for exercising their workplace rights. This includes their rights to:
- make an enquiry or complaint about workplace conditions;
- ask to be paid in line with the correct award rate;
- ask for proper safety procedures and equipment; or
- commence Fair Work proceedings.
Your workers also have rights to industrial action which are covered under general protections. These include their rights to:
- join a union;
- participate in strikes; or
- refuse to participate in industrial action.
What Constitutes Adverse Action?
A general protections claim will usually centre around the alleged ‘adverse action’ you take because of a staff member’s: :
- workplace rights;
- industrial activity; or
- personal features.
Adverse action includes anything you do against an employee that disadvantages them in the workplace. This is not limited to termination and can include:
- demotion;
- you or other employees discriminating against them; and
- discrimination during the hiring process.
An important element of general protections claims is that the adverse action must be substantially based on the protected reason. For example, suppose that you dismiss a pregnant employee who has committed theft. In that case, the adverse action (termination) must be taken because of the serious misconduct and not because the employee is pregnant. To avoid potential claims, you should take precautions when dismissing employees, including:
- having a valid and legal reason for dismissal, such as an employee’s misconduct;
- following legal procedures, including providing notice of termination; and
- having well-documented evidence of the dismissal.
Can Small Businesses Be Subject to General Protections Claims?
Small businesses, or businesses with less than 15 employees, are not exempt from general protections claims. Additionally, there is no time restriction on how long someone must have worked for you before they can bring a claim. Even prospective employees who have never worked for your business or contractors can bring a general protections claim.
What Should I Do if I Receive a General Protections Claim?
If a worker has made a claim against you, you will receive notice from the Fair Work Commission (FWC). It is important that you respond in the given time frame, usually a week, and do not ignore this claim. Failing to respond can have serious consequences for your business, including the employee taking the claim to court.
When you respond, you should include any objections you have to:
- the adverse action the worker says you committed; and
- the worker’s desired outcome.
The Form will also ask if you consent to having a conference convened by the FWC. This conference is similar to a mediation, where you and the employee will attempt to reach a resolution. If you cannot come to an agreement, alternatives include:
- arbitration overseen by the FWC; or
- a hearing in the Federal Court.
What Are the Consequences for Breaching the General Protections?
The orders that a court or the FWC may impose on a business vary. You may be required to:
- reinstate the worker; or
- provide compensation for loss of income or humiliation and distress.
Additionally, a court may impose a penalty against your business. This will depend on the severity of your breach of the general protections.
Key Takeaways
If you take action against one of your workers because of their personal attributes, workplace rights or industrial action, they may bring a general protections claim against you. Anyone in the employment relationship can make a claim, including employees, prospective employees and contractors. If someone makes a general protections claim against your business, you will need to respond within seven days of receiving the claim.
If you have any questions or need assistance responding to a general protections claim, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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