Welcome to the second edition of Gravitate HR’s quarterly newsletter. Each edition will detail up and coming legal changes, implications for your organisation and Gravitate HR case studies.
We would like to wish you all a very happy easter and hope you get the chance for some spring sunshine.
Annual appraisals have been given a makeover for some of our clients by seeing performance through different perspectives. This was achieved by using 360 degree feedback surveys, which gave individuals feedback from their colleagues and managers, and in turn contributed to their appraisal review. This feedback was seen as ‘useful’ and an ‘eye opener’ to organisations, as it gives the individuals a more rounded evaluation of their performance and areas for development. It also allows the individuals to gain an understanding of other colleagues perceptions about their behaviour at work, which is an insight that can be overlooked when the appraisal is only carried out with a managers input.
If your appraisals are getting tiresome and monotonous for you and your employees, why not try 360 surveys to gain a fresh perspective?
A female employee won a sex discrimination claim accusing her boss of bullying and harassment towards because of her ‘hormonal state at work’. A series of taunts, including calling the female employee a ‘good looking girl’ and condemnation for her ‘too high standards’ led the employee to raise a grievance and then eventually resign from her role over the treatment she was receiving. This was a clear case of sexual discrimination and harassment and she was awarded over £23k plus £7.5k for injury to feelings.
I have been carrying out some research into recent case law around disability discrimination. Disability legislation is a minefield and, if not followed correctly, could result in uncapped compensation payouts and a damaging affect on the Company’s reputation. Many recent cases have focused on the reasonable adjustments employers may have to make for an employee who is recognised as disabled under the Disability Discrimination Act 1995. Below are some of these cases that have involved the disability legislation which may cover issues raised in your Company.
The Disability Discrimination Act 1995 requires employers to make”reasonable adjustments” for a disabled person put at a substantial disadvantage by a provision, criterion or practice, or a physical feature of premises. The Act prohibits discrimination in relation to employment of disabled people, including recruitment, training, promotion, benefits, dismissal, etc.
Paterson v The Commissioner of Police of the Metropolis 2007
Key Principle - ‘Reasonable adjustments to prevent substantial disadvantage’
A police officer was required to complete an assessment process to allow promotion to Superintendant. He had recently been recognised to have ‘mild dyslexia’ and he was allowed 25% more time to complete the assessment. The police officer claimed that he had been discriminated against because of his disability and that the police had failed to make reasonable adjustments affecting his ability to progress in his profession. The claim lost and the tribunal found that his dyslexia would only impact a small proportion of his work activities as exams were not a common occurrence even though he would be at a significant disadvantage in high pressure exams compared with his non-dyslexic employees. Any adverse effects of his impairment were minor.
The police officer won his appeal arguing that once it was accepted that the disability affected his ability to progress in his profession, the only reasonable inference was that it had a substantial effect on his day-to-day activities. It would fundamentally undermine the protection which the DDA was designed to provide were it otherwise.
Implications for employers:
Employers who require employees to sit exams or assessments must make reasonable adjustments for dyslexics as dyslexia is a disability if it has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities which includes sitting exams. Reasonable adjustments must be made to ensure that no practices at work put dyslexic or other disabled staff at a substantial disadvantage compared with non-disabled employees.
Eastern & Coastal Kent PCT v Grey 2009
Key Principle - ‘Knowledge of disability’
Following on from above, the DDA also recognises that employers cannot be expected to make reasonable adjustments if they did not know an employee or prospective employee has a disability. The following exert of the DDA outlines where employers are exempt from making reasonable adjustments if:-
· the employer does not know that the person has a disability;
· the employer does not know that the person is likely to be at a substantial disadvantage compared with persons who are not disabled;
· the employer could not reasonably be expected to know that the person had a disability;
· the employer could not reasonably be expected to know that the person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
Grey, an employee of Eastern and Coastal Kent PCT applied for a role internally, requesting that the interview panel was not told that she was dyslexic. The Tribunal found that the interview panel should have been told and reasonable adjustments made. An appeal overturned this as the suggested reasonable adjustments could not be made in the job applied for and the experience and skills of the applicant suggested she was not at a substantial disadvantage in the interview process. Therefore the employer could not be expected to make reasonable adjustments as each of the four points outlined above were satisfied.
Implications for employers:
This has come as welcomed clarification. Employers may have discrimination claims brought against them if there is sufficient evidence to suggest that the employer could have reasonably known that the employee is recognised as disabled and failed to make special arrangements. As a result of this case, employers must provide evidence that all four points outlined above are met for a successful exemption. But this is not to suggest steps should be put in place to prevent such a claim being brought in the first place.
On a lighter note…
Although an employee suffering a genuine disability is a very serious matter for both employee and employer, the courts are still willing to reject disability claims that lack merit.
A recent case involved an employee claiming he suffered a disability in that his employer removed his personal heater and he could not work in temperatures of less than 27 degrees Celsius. He claimed to suffer from various chest ailments and breathing difficulties at lower temperatures and so was disabled. The Judge decided that his condition did not qualify as a disability under the DDA and threw out the claim.
Final thought……
This is a stark reminder for employers to take care when applying procedures, including recruitment, promotion, redundancy and all other aspects of employment relations. It is important that employers follow fair, clear and consistent procedures, and reviews of such procedures are carried out regularly to ensure compliance with legislation and best practice. Employers should be proactive when it comes to recruiting, and continue to ask applicants if they have a disability as part of the application form or a separate and confidential equal opportunities monitoring form. An employer is also wise to ask if the candidate has any special requirements at interview. If an employer has been prudent and asked the questions, it will be difficult for a claimant to argue an employer should have known they are disabled.
All contents are for information purposes only and are not intended to be legal advice. If you are experiencing an issue that is covered in this case law and would like advice please contact a member of the Gravitate team. We can provide professional advice and support in creating, implementing and reviewing Company policies and recruitment material (including job application forms) to ensure you are compliant with legislation and the risk of discrimination, whether disability, sex, age, race, etc, is removed.