Having tirelessly trained for the impending 10km on Sunday just gone, I successfully achieved a time of 1 hour and 21 seconds! A great feat considering I had not managed to run a full 10km prior to the event. I would like to thank all of the team at Gravitate for their encouragement and support and wish the girls good luck with the Race for Life next month!
Becky Scott
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.
Some recent employment cases….
Justifying the Handling of Alcohol in Religious Discrimination case
Ahmed v Tesco Stores Ltd 2008
A Muslim employee of Tesco’s claimed he was discriminated against under the Employment Equality (Religion or Belief) Regulations 2003 after he was required to handle alcohol. The employee resigned and claimed constructive dismissal on the grounds that by expecting him to handle alcohol was against his religious beliefs. The Employment Tribunal agreed with Tesco’s that this practice was justified due to the fact that the company would not be able to supply its stores with its products without the employee carrying it. To add to this, the tribunal took into consideration that the fact the employee was required to carry alcohol was addressed at the interview stage and documented to support.
Implications for the Employer
Although most tribunal claims will be supported by various facts within the case, it is important for employers to identify and deal with any potential issues early in the recruitment process that may result in a discriminatory outcome and ultimately a claim.
Homophobic Banter and its Implications
English v Thomas Sanderson Ltd 2008
Previously, the Sexual Orientation Regulations 2003 included only unwanted conduct based on the victim’s (or someone else’s) perceived sexual orientation but an employee won a tribunal claim for the teasing he received about his sexuality even though there was no real acceptance by those colleagues that he was gay. The employee was subjected to homophobic banter where colleagues suggested he was gay as he attended a boarding school and lived in Brighton.
Implications for the Employer
Employers will be required to educate their staff on the misuse of ‘banter’ and that unwanted conduct, regardless of sex, race, disability, religion or sexual orientation can amount to discrimination.
Redundancy Selection and Age Discriminations
Rolls-Royce v Unite 2009
A Company alleged that the redundancy selection matrix they had agreed with the trade union could not proceed as it amounted to age discrimination. The redundancy selection process used a points system based on five criteria in addition to each employee could receive one extra point for each year of continuous service. Those with the least points were selected for redundancy. The Court agreed with the union that the continuous service points were objectively justified. Given the use of these points with the other criteria within the matrix, the length of service points were capable of being justified as they did achieve a legitimate aim. The scheme agreed with the union had the legitimate aim of peaceful redundancy selection, and the aim of respecting the loyalty and experience of the older employees and protecting older employees who find it harder to get jobs from becoming unemployed. In addition the age award fell squarely within the length of service exception.
Implications for the Employer
Employers should have in place a carefully planned redundancy procedure which can be used if the need to make redundancies arises. Selection criteria used in any redundancy procedure must be objective and verifiable against, for example, attendance and personnel records and must be applied fairly and not be discriminatory. If employers do use length of service criteria as part of a redundancy selection process, they may be able to defend their use of this criterion if they can show it fulfils a business need or achieves a legitimate aim of the business or, as part of a matrix, be a valid and fair indicator of loyalty and experience.
Stress and Employer Duties
Dickens v O2 plc 2008
An employee who was given promotion to management and promised support and training was not given and found the new role to be overly demanding. She informed her manager that she was very stressed and was told to use the company’s confidential counselling service. As she was already receiving counselling, she did not do this. She repeated her concerns and was referred to the occupational health department, but this was not actioned. She then signed off work with anxiety and depression. She brought a claim against her ex-employer for personal injury and sought damages for injuries that she had suffered due to psychiatric injury from stress at work. The Court held that the employer was largely responsible for the employee’s psychiatric injury. Although the employee had not suffered a previous breakdown, the injury was foreseeable as the employee had advised the company over a period of time of her problems. The referral to a counselling service suggested by her manager was an inadequate response.
Implications for the Employer
Employers should be proactive in dealing with stress issues in the workplace and be aware of and follow the Health and Safety Executives management standards for work-related stress. One way to deal with this is to implement a ‘dealing with stress at work’ policy to help introduce measures to reduce and prevent stress, or provide Managers with training in how to deal with employees who complain that they are over-worked and suffering from stress. Employers should take action to investigate a stress situation, listen to the employee, take steps to alleviate the situation. A mere referral to a counselling service alone is not enough to guarantee an escape from a finding of breach of duty.
Recent TUPE cases
Dynamex Friction Ltd & Another v Amicus & Others 2008
DyFriction Dynamics Limited was in financial difficulties and joint administrators were appointed who dismissed all of the employees immediately, on the grounds that there were no funds available to pay them. A week later, some of the assets of Friction were sold to another company (set up by a former employee and the sole director of the old company) called Dynamex Friction Limited. The issues were essentially whether: there had been a transfer of undertaking from Friction to Dynamex, and if the reason for the dismissals was related to the transfer or was an economic, technical or organisational (ETO) reason.
Eventually the Court of Appeal held that there was a transfer of an undertaking but that the reason for the dismissal was an economic one as there were simply no funds to pay the employees
Implications for the Employers
In TUPE transfers, the transferee (‘new’ employer) may be liable for dismissals made before the transfer for a reason connected with the transfer, even if the transferee played no part in the decision. Also, where employees are dismissed before a TUPE transfer, the reason for dismissal will determine whether the transferor is liable, or whether the employment liabilities pass to the transferee. It is important to note the thought process of the person making the decision to dismiss the employees will dictate whether the dismissals are transfer related or if there is an ETO reason.
Kimberley group Housing Ltd v Hambley and Others; Angel Services (UK) Ltd v Hambley & Others 2008
Lena Homes had a contract with the Home Office under which it provided accommodation and related services for asylum seekers. In 2006 this contract was awarded to the companies Kimberley and Angel. Kimberley and Angel did not accept that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006) applied and therefore employees of Lena Homes who had been engaged in the relevant services lost their jobs. Six of them brought a claim under TUPE.
On appeal, Tribunal found that although a service provision change had taken place, employee liabilities could not be divided between Kimberley and Angel on a percentage basis. The apportionment of liabilities in a service provision change should be treated the same as a traditional transfer. Kimberley had taken over the majority of the activities carried out by the employees and they therefore transferred to Kimberley which was now responsible for all liabilities under their employment contracts.
Implications for the Employers
When a service which is originally provided by one employer is instead provided by two or more new potential employers the parties must decide which employees are assigned to the activities involved in the service provision change to determine who is liable for the employees. The employees’ employment will transfer to the transferee who takes on the particular activities. The approach in cases of a service provision change between employers is therefore no different to the approach already established for traditional TUPE transfers.
Regent Security Services v Power 2008
The employee was the only person doing a particular job and prior to the transfer to Regent his contract of employment stated a contractual retirement age (CRA) of 60 years. Shortly before the transfer to Regent he agreed to change his contract so that his normal retirement age (NRA) would rise to 65 years. It was established before the Tribunal that the change was by reason of the transfer.
Later that year, Regent informed him that they intended to retire him at 60 years. He objected claiming that his NRA was now 65 years, but his employment was ended and he brought an unfair dismissal claim. The employee argued that his NRA was 65 years as he had agreed a CRA of 65 years with Regent. However, Regent contended that the variation was void under TUPE as it was by reason of transfer under the principle that changes made by reason of the transfer were void and that transferring employees could not be deprived of their previous rights. The employee argued that only changes to his detriment were void as a result of TUPE and that the change to his contractual retirement age was beneficial. The employee won. The CA agreed with the EAT and decided that an employee should be able to hold the employer to a variation of a term more favourable to the employee, but not one which would be detrimental to the employee.
Implications for the Employers
It appears that employees can choose between enforcing an old term or the new term based on their choice of which they think is most beneficial. Following a TUPE transfer some beneficial changes to the terms and conditions of employment by the ‘new’ employer may be valid even if they are by reason of the transfer. Employers will therefore probably be bound by variations of terms following a TUPE transfer which are more favourable to employees.
Health and Safety Offences Act 2008 (16th January 2009)
This new act will result in increased penalties and harsher punishments for those who break health and safety law to try and act as further encouragement for Senior Managers to improve their health and safety responsibilities. Maximum penalties will increase from £5,000 to £20,000. Breaches in regulation could be classed as a criminal offence, with stricter punishments on those of authority.
Implications for the Employer
For those that are not already, Senior Managers need to take a systematic approach, ensure risk assessments are carried out properly and procedures are in place to minimise risks and help protect their staff.
Congratulations are in order for Becky who passed her driving test today - first sitting!
You can expect to see Becky driving the Gravitate HR mini sometime over the New Year.
Congratulations from all the Gravitate HR team!
Following Sarah and Jennifer’s sunny days out with clients, we decided we should have an away day. Heather recommended Go Ape - so we made all the arrangements and headed off to Aberfoyle, on Friday 10th October. Even the rain and mist did not dampen our spirits and as the mini made it’s way north and west - the rain got heavier and the anticipation grew.
Now that we are back safely I can tell you that it was fantastic. It is very exhilarating and is a great team building event. We got very very wet as you can see from the photos!
This is Jennifer arriving on the zip wire!
The team before we got REALLY wet - arrived safely & looking forward to our adventure…………….
Becky sets off along the slippery path
Now we really are wet - but still smiling!
Sarah and Jennifer smiling in the pouring rain.
The way home is back across the zip wire over the trees, waterfall, landing on a big pile of wood chip ………
Jennifer looks happy!
Margery can’t believe she is in one piece
Sarah arrives elegantly……….
And a few action video clips!
http://uk.youtube.com/watch?v=JEGxnT11YfY
http://uk.youtube.com/watch?v=Fi_NRFoz1p0
If you want to find out more about Go Ape visit Go Ape
Some recent employment case law …
Disability Discrimination - Discrimination by association
An employee (able bodied), who was the primary carer of her disabled son, believed she was being discriminated against when requested for flexible working because of her association with a disabled person and has claimed constructive dismissal and disability discrimination against her employers.
The case went to the European Court of Justice who ruled that it is direct discrimination under the Equal Treatment directive (2000/78/EC) if an employee who is not disable is treated less favourably because of her association with a disabled person.
Implications
It is likely that UK legislation may have to be amended to make it unlawful as direct discrimination and harassment against an employee on the ground of their association with a disabled person will constitute disability discrimination. This will extend to association in relation to age, religious and sexual orientation discrimination as well. Employers should be sensitive to employees who are carers of disabled relatives who could have grounds for claiming disability discrimination if they are refused time off to undertake their caring responsibilities.
Grievances - Following correct procedure - extension of time limits
An employee who was made redundant did not appeal against the redundancy, but later raised a grievance. According to legislation, the 3 month limit for presenting an unfair dismissal claim can be extended by a further three months if the employee reasonably believes that the dismissal or disciplinary procedure is still in progress when the limit ends. The employee did not receive a response to her grievance until a day after the three month limit expired. The Court of Appeal, decided that the employee was right to assume the dismissal procedure was ongoing as she was still waiting for a response to her grievance when the time limit was coming to an end. It . Therefore, as her grievance was related to her dismissal, the time limit could be extended.
Implications for employers:
Employers must continue to follow the statutory grievance, dismissal and disciplinary procedures in full for all situations. Although time limits are sometimes strictly enforced in the employment tribunal, employers can never guarantee that they are safe once the initial time limit has passed. Employers must always deal with grievances promptly and thoroughly even in a redundancy situation.
Age Discrimination - Capability v Age
After two months into her role, an 18-year office administrator was dismissed following a conversation with her line manager in which she was allegedly told that she was too young for the job as she had only been doing 90% of her role. An employment tribunal ruled that the employee had been dismissed not because of her capability, but because of her age. The employer had made the ‘stereotypical assumption’ that age and experience equalled capability.
Implications for employers:
Employers must train managers to follow equal opportunities policies which encompass avoidance of age discrimination for employees and prospective employees of all ages. Employers must take into account that some individuals are more capable than others. One candidate with initiative but with little experience may in fact be more capable than another, less inspired candidate with years of repetitive experience.
Part-Time Workers - Comparators
A number of part-time workers at a city council had their hours reduced due to a series of cost cutting measures. They claimed that the council had discriminated against them under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 on the ground that their treatment had been worse than full-time workers. The Employment Appeal Tribunal upheld the claimants’ appeal. Once it is found that part-time workers are being treated less favourably than full-time comparators and being part-time is one of the reasons, that is enough to trigger the Regulations.
Implications for employers:
Employers must recognise that it is now harder for employers to defend some cases under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Employers should always keep part-time workers’ terms and conditions under review to ensure they are equivalent pro rata to full-time workers’ terms and conditions.
Unfair Dismissal - Expired Warnings
Five employees were found guilty of misconduct for misusing company time (by watching television during working hours). Four employees were given final written warnings, but one employee was dismissed. This was because he had been given a final written warning for a similar act of misconduct thirteen months earlier. The warning had expired three weeks before the second act of misconduct. The employee brought an unfair dismissal claim which was upheld by an employment tribunal and the Employment Appeal Tribunal (EAT).
The Court of Appeal (CA) over turned the decision of the EAT, and held that the employee was not unfairly dismissed because the employer had relied on an expired warning. In this case the employee was dismissed mainly because of his misconduct and not because of the expired warning.
Implications for employers:
This is an area that must be tread carefully. Employers who take expired warnings into account before implementing a dismissal will not necessarily have unfairly dismissed the employee. However, such a practice is still very risky. As a matter of best practice employers should not rely on expired warnings, especially not as the principal reason for dismissal. If an employer does rely on an expired warning and there is also underlying misconduct, it may be reasonable to take the warning into account as well -provided that the subsequent misconduct is sufficient to warrant dismissal in its own right.
All text above is for information only, and not to be interpreted as legal advice.