Welcome back, your weekly dose of case law is fresh off the digital press. This week’s case concerns redeployment, reasonable adjustments and disability discrimination. It is a rare example of an employee bringing a claim without actually being dismissed.
Can a disabled employee be exempt from a redeployment pool and placed straight into a position?
Would allowing a disabled employee an exemption from a competency test be a reasonable adjustment?
Mr Muzi-Mabaso, the Claimant, worked for HM Revenue & Customs, the Respondent. The Claimant suffered from stress and depression to the extent that he qualified as disabled under the Equality Act 2010.
The Claimant was temporarily transferred to a higher level position whilst he began a training course to qualify for an even higher position. However, the Claimant failed the course and subsequently began a long term absence due to his disability. The Claimant’s failure to pass the course resulted in him having to revert back to his original role at the Respondent. However, there was currently little work in the area for the Claimant’s original role.
The Claimant was notified that as there was not a substantive amount of work for him to do he would be placed into the Respondent’s redeployment pool. He was informed that applications for internal positions were open competition. The Respondent did not explain to the Claimant whether or not he would be made redundant if he was not successfully redeployed. The Respondent then began recruiting for roles for which the Claimant was eligible.
At this point the Claimant disclosed that owing to his disability he had a phobia of job application processes which put him at a disadvantage. The Respondent held a meeting with the Claimant and a manager helped the Claimant complete the application form. The manager suggested that the Claimant displayed competency for the job and potentially an even higher grade position.
The Claimant then refused to sit the online test involved in the application process as he was too stressed on account of his phobia. The Respondent offered the Claimant the chance to sit the exam in a separate room with a manager there to explain each step to him. The Claimant rejected this as he did not want to risk triggering his condition. The Claimant said the test was not an essential part of the selection process.
The Claimant provided medical evidence that suggested he might not be able to sit the test. However the Respondent rejected his request because as a large employer it had received over 4000 applicants for the position and the test was an essential part of assessing the candidate’s aptitude. It elaborated by saying that other disabled candidates had sat the test.
After the Respondent’s refusal to make the adjustment of allowing the Claimant to skip the online test, the Claimant brought two disability discriminations claims against the Respondent. One for indirect discrimination and one for failure to make reasonable adjustments, the reasons for both were due to the Claimant being put in a redeployment pool and being required to take an online test. Furthermore he believed he should have been exempt from the process and simply been redeployed into another role.
The ET rejected the claim. It stated that the test was a necessary means for the Respondent to filter thousands of candidates and therefore it was not unreasonable to expect the Claimant to sit it. It further stated that by being in the pool the Claimant was being helped by the Respondent to gain work and that it was unreasonable for the Claimant to expect to be put straight into a role.
The Claimant appealed to the Employment Appeals Tribunal and the EAT allowed the appeal. It found that the Claimant had been discriminated against and ruled that the ET had made an error in saying that the online test was necessary as the Claimant’s manager had already said he showed competency in the previous section of the application process. It also stated that as the Respondent had not explained to the Claimant whether or not he would be made redundant if redeployment was unsuccessful he would understandably feel stressed during the application process.
The takeaway points from today::
In this case disabled employees should not be exempt from redeployment pools. Despite not having the process explained to him fully the Claimant was at no real disadvantage for being in the pool, however certain aspects of redeployment may need to be adjusted.
A disabled employee may be exempt from a competency test if the employer has the belief that they are competent already. In this case the Claimant’s disability and the Respondent’s inability to make reasonable adjustments suggest that the employee should be exempt as the Respondent already believed the Claimant was competent.
For more cases about disability discrimination click here.
Posted: Nov 20, 2015 by admin in Unfair Dismissal
Hello , I know what you’re thinking, it’s that time again. Another week, another tenuous case law link. However, there is no tenuous link this week, as there is no current affairs issue to link the case to. Nonetheless that does not mean you shouldn’t read it, as it concerns long term absence and reasonable adjustments.
The questions this week are:
Do employers have a continuing obligation to make reasonable adjustments for employees who are off long term sick?
Should the Polkey deduction apply to an employee who has shown no signs of being able to work?
Mrs Harris, the Claimant, worked for Monmouthshire County Council, the Respondent, as a Senior Education Welfare Officer. The Claimant had over 20 years’ service and it was common knowledge that she qualified as being disabled under the Equality Act, due to her suffering from four chronic conditions; depression, sinusitis, asthma and an under-active thyroid.
Following the advice of Occupational Health, the Respondent allowed the Claimant to work from home in the mornings, late afternoons and Fridays. However the Claimant’s line manager changed and the Claimant made several complaints about him not supporting her home working requirements, although she asked for these not to be raised with him.
The final straw was when the Claimant’s manager called her into a short notice meeting the day after her annual leave on a day she should have been working from home. The Claimant requested that her work arrangements return to normal and then went off sick due to ill-health.
A further Occupational Health assessment determined that she was unfit to work in any role at the present time. No indication was given as to if/when she would return to work.
The Respondent held two meetings with the Claimant and hinted that it would not be able to support her absence indefinitely but did not state she was at risk of dismissal. The Claimant wrote a letter to the Respondent complaining about her manager, this time the Claimant did want the issue to be raised but the Respondent did not investigate the complaint.
The Claimant was invited to attend a third meeting, which her manager was also present for, where she was dismissed, but this was on notice to take effect in two months’ time. The Claimant appealed the decision citing lack of consultation and the Respondent’s failure to investigate her complaint.
The appeal was rejected and the Claimant applied for ill-health retirement. The application included reports from her GP and Occupational Health. The reports stated that she was not fit for work but could not declare permanent incapacity as not all treatment options had been explored.
The Respondent rejected the application and the Claimant was dismissed. She brought unfair dismissal and disability discrimination claims before tribunal. The ET accepted the claim stating that the risk of dismissal was not adequately expressed and there had been no effort to make reasonable adjustments.
It added that the most recent medical evidence in the retirement application was not taken into account, the Respondent had failed to investigate the Claimant’s complaint and the Claimant’s manager had been actively involved in the decision to dismiss. Furthermore as the ET believed the Claimant would be fit to work in the future no Polkey reduction was applied to her compensation.
The Respondent appealed and the EAT accepted the appeal. It cited the fact that despite potentially causing the Claimant’s absence there was no obligation or medical advice to suggest that the Claimant could return to work if the Respondent made reasonable adjustments for home working.
The EAT also stated that if the dismissal had been fair it would have applied a Polkey deduction as the Claimant’s absence meant the Respondent could not be expected to wait years before taking the decision to dismiss.
There is not necessarily an obligation to make certain reasonable adjustments. If there is medical evidence to suggest these adjustments will not enable a return to work then the employer is not obliged to keep making them.
Yes, an employee who will most likely not be able to return to work should have the Polkey deduction applied to their award.
Read more disability discrimination cases.
Posted: Nov 13, 2015 by admin in Employment Tribunal, Unfair Dismissal
Greetings , the passing of Halloween means it is now officially acceptable to start talking about Christmas. The nature of employment law means it seldom overlaps with festive revelry, however, there is one issue that does often crop up. Staff conduct at office parties. Therefore today’s case is about what to do when staff misbehave at work functions.
The questions this week are:
If two employees are involved in a physical altercation can different disciplinary sanctions be given?
To what extent does provocation mitigate a gross misconduct offence?
The Claimant, Mr Jones, worked as a collections officer for the Respondent, MBNA. The Respondent, a bank, was hosting a party to celebrate its 20th birthday. Staff were told in advance that it was a work event and normal behaviour standards apply.
Two of the Respondent’s employees drank before the event, one of them was the Claimant and the other was a Mr Battersby. At the event the Claimant licked Mr Battersby’s face and in return he kneed the Claimant in the back of the leg. This was done in jest and written off as ‘banter’. Later on in the evening the Claimant had his arm around Mr Battersby’s sister. Mr Battersby spotted this and once again kneed the Claimant in the back of the leg, this time giving him a dead leg. The Claimant then turned around and punched Mr Battersby in the face.
The Claimant and other members of staff then proceeded to a night club. Mr Battersby knew the Claimant was there and waited outside for him, he then proceeded to text the Claimant with numerous threatening messages including ‘I am going to rip your f****** head off you b******’ (apologies for the effing and jeffing but these are the facts of the case). The Claimant did not receive the messages until after he left the venue, by which point Mr Battersby had gone home. The Respondent began disciplinary proceedings against both the Claimant and Mr Battersby. Following disciplinary investigation the Claimant was dismissed for gross misconduct but Mr Battersby was given a final written warning.
The reasoning for the different sanctions was that Mr Battersby had been provoked by the Claimant licking him and also by the Claimant being over familiar with his sister. The Claimant bought an unfair dismissal claim before tribunal. The ET ruled that the dismissal was unfair as the Respondent had used different provocation tests, the Claimant had also been provoked by the dead leg, and this amounted to an unreasonable disparity of treatment between the two employees.
The Respondent appealed and the EAT accepted this appeal stating that the circumstances surrounding each employee’s conduct was different and thus it was reasonable to reach different decisions. It also stated that the punch happened in the workplace whereas the texts did not.
The takeaway points from today are if two employees are involved in a fracas at work then they could both receive different disciplinary sanctions. This could be down to a number of different factors including: disciplinary records, self-defence or provocation. Provocation can be used as a distinguishing reason as many employees would not get involved in such situations had certain events not already transpired.
We always advise employers to give advanced warning about party behaviour being liable to disciplinary action. For further advice on office parties click here.
Posted: Nov 6, 2015 by admin in Employment Tribunal, Unfair Dismissal
With the Christmas party season about to get into full swing, no doubt your plans for your staff parties are well advanced. Some employees overstep the mark and employment law queries arise every year.
The stock advice is as follows:
If it is an employer organised event then the employer can take disciplinary action against any employee who misconducts himself at the event. Taking disciplinary action is always easier if the employer has given advance warning before the party of the standards they expect.
If it is an employee organised event then the issues become a bit more blurred. Employers can take action if employees misconduct themselves at events they have organised themselves, provided either that the misconduct impacts on the working relationships or the misconduct brings the employer into disrepute.
Posted: Nov 2, 2015 by admin in E Learning
Welcome back, following the release of the new James Bond film it seemed apt to cover a case concerning protected disclosures. Following on from the Chesterton precedent, today’s case strengthens the view that public disclosures can be made in relation to contractual disputes.
The question this week is:
Can a disclosure regarding contractual disputes be in the public interest?
Mr Underwood, the Claimant, worked as a HGV driver for Wincanton Plc, the Respondent, a large haulage firm. The Claimant and three colleagues submitted a letter to the Respondent, in accordance with their whistleblowing procedure, complaining that overtime was being distributed unfairly which was a breach of contract and resulted in many drivers earning substantially less income than others. The Claimant also highlighted that many of the drivers not being allocated overtime had raised concerns about the condition of their vehicles and whether they were road worthy. The Claimant was dismissed and despite having less than two years’ service was able to bring a claim before Tribunal as it concerned public interest disclosures (whistleblowing).
The ET struck out the claim stating that contractual disputes between employees and employers were not in the public interest. However, around this time the Chesterton judgment stated that if a sufficient number of people, including employees, were affected by the Claimant’s disclosure then it would qualify as being in the public interest. The Claimant used this as grounds to appeal and the EAT agreed. It said that even though only a small amount of people were affected by the disclosure the concerns over road safety had vast implications on the greater public. It also stated that the original decision conflicted the stance held in Chesterton and thus the appeal was allowed.
The takeaway point is that, yes, a disclosure relating to a contractual dispute can be in the public interest if the public are affected by the matter the dispute arises from or the number of employees affected constitutes a sufficient portion of the public. Furthermore this case highlights how an initial win for the Respondent was overruled by the judgment in another case meaning you should always be wary of appeals and current case law.
Somewhat ironically the decision in Chesteron has been appealed by the Respondent and will be heard in the Court of Appeal in October 2016. This may very well result in this judgement being overruled but in the meantime it should still be followed when dealing with whistleblowing cases. Watch this space.
For more whistleblowing cases click here.
If you enjoyed this article please share it
Posted: Oct 30, 2015 by admin in Employment Tribunal, Unfair Dismissal
Cake stealing Harrods’s worker?Knife wielding teachers? Every month we bring you the most outlandish piece of employment news.
This month’s example of outrageous tabloid employment law reporting comes in the form of disability discrimination. In the case of Shields v Surrey and Sussex Police saw a partially deaf sniper, who reportedly couldn’t distinguish the difference between shoot and don’t shoot, win his claim for discrimination.
He had coped with his condition throughout his 12 year career but it was only discovered by his employer when a new minimum hearing level was introduced. The Claimant argued that his condition had never impaired his ability to perform his role and that there was a special test that he could take which would determine whether he was fit for the role or not.
The tribunal agreed and allowed the claim. The interesting point to take away from this case is that sometimes discrimination is necessary to protect health and safety such as in the case of Begum v Barley Lane. However, in this case it seems that not making a reasonable adjustment has meant that the discrimination was not acceptable as the Claimant might not have been a health and safety risk.
Despite the sensationalist headlines the fact that the sniper had proved his ability and the police had made no reasonable adjustments meant legally, and practically, he could have continued as a sniper.
Posted: Oct 26, 2015 by admin in Employment Tribunal, Unfair Dismissal
Cleaners who work for the Foreign Office have been put on disciplinary action after a letter they went to Foreign Secretary, Phillip Hammond was forwarded to their employer, Interserve.
The letter signed by 14 cleaners requested that their low pay be raised to the living wage which is calculated at £9.15 in London. They then were invited to a formal disciplinary meeting with the letter attached as evidence. Three of the cleaners have since been made redundant and some are considering legal action.
Despite the Government’s living wage of £7.20 coming into force next April many feel this is still not enough to cover the difference in in the cost of living Londoners face. Meanwhile it also worth noting that the new living wage only applies to over 25s which leaves many homeowners/renters under this age short changed.
Last month LIDL became one of the first major retailers to promise that all staff would be paid the living wage and this is much better publicity for the company than the tactic taken by Interscope. Furthermore they are not liable to any legal action so all in all it is a win-win situation.
Posted: Oct 26, 2015 by admin in Redundancy, Unfair Dismissal
It has been 6 months since shared parental leave has been introduced and whilst it has yet to revolutionise parenting it is very much an option for soon to be parents. At the Conservative party conference, George Osborne announced plans to extend shared parental leave towards Grandparents.
It is estimated that nearly 50% of parents rely on grandparents to some extent to cover childcare upon their return to work. It is believed that with people working well into their late 60s this family help will become difficult in the future so the right to parental leave will be extended beyond parents to grandparents. This will allow parents to return to work but also allowing grandparents to stay in work instead of quitting their jobs.
However the idea has been met with criticism stating that it may reduce parents taking parental leave to bond with children and instead burden grandparents, whilst some believe it is slippery slope to allowing aunt and uncle leave. The policy won’t come into force until 2018 but it is something worth bearing in mind if you have an older workforce.
Posted: Oct 26, 2015 by admin in Age Discrimination, Retirement
The gender pay gap is still a big issue in employment law, figures suggest that there is still a 9% difference between the pay of men and women. Section 78 of the Equality Act requires employers with more than 250 employees to publish information relating to the pay of employees for the purpose of showing whether there are differences in the pay of male and female employees.
At the end of September the consultation for Gender Pay Gap reporting closed which means it won’t be long until the guidance is released for the mandatory reporting. The legislation will be rolled out next year so it may be worth getting up to speed now especially as any pay gaps identified before the mandatory reporting can be addressed and thus avoid negative publicity.First of all it is worth establishing what roles are equal. The equality act defines equal as:
“Like work” , work that is the same or broadly similar
“Equivalent work” is where the demands of a job are determined to be equal to those of another job under a job evaluation scheme
“Work of equal value” is work that is different to another job but of equal value in terms of the demands of the role.
For example, a recent case involving ASDA, female shelf stackers were found to be being up to £4 less than their male counterparts in the warehouse despite both jobs involving stock control and lifting.
When looking for pay gaps be sure to include any benefits and use pro-rata figures for part time staff. If any gender gaps appear be sure to determine if gender is a contributing reason and if it is a factor make sure to close the gender gap. For advice on this matter please contact us.
Posted: Oct 26, 2015 by admin in Age Discrimination
There are currently around three quarters of a million people employed under zero hours contracts in the UK, this equates to 1 in 40 of all employees. Following on from the banning of exclusivity clauses in May, the government has now released further guidance on what is and isn’t acceptable in zero hours contracts.
According to the guidance zero hours contracts are useful when work demands are irregular or where there is not a constant demand for staff. They also allow staff flexibility when they work, it defines five scenarios where zero hours contracts should be used, including:
- New businesses where there might not be a steady amount of work yet
- Existing businesses looking to trial a new service or product
- Seasonal businesses
- Businesses looking to cover unexpected absences in critical roles at short notice
- Hospitality companies looking to take on additional staff for special events
The guidance also gives examples of when zero hours contracts should not be given, including:
- If there is a consistent guarantee of hours
- If overtime or agency staff can be used instead
- If part time or fixed term staff can be recruited
Lastly the job should be clearly advertised as being zero hours and any company that does have zero hours staff will need to have a policy on acceptable late cancellations of work. The policy should outline the circumstances in which work might be cancelled at short notice and what compensation might be given to the employee. For advice or help drafting a policy please click here.
Posted: Oct 26, 2015 by admin in E Learning