Employment Law Newsletter – May 2019

employment law


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Disability Discrimination: Making the most reasonable adjustments to overcome the employee’s disadvantage

In Linsley v Commissioners For Her Majesty’s Revenue And Customs UKEAT/0150/18/JOJ Mrs Linsley was employed by HMRC. She has a condition called ulcerative colitis, and it means she needs easy access to toilets and the condition is exacerbated by stress. On the advice of OH she was allocated a dedicated parking space near one of the buildings, to allow her easy access to the toilet. This was part of HMRC’s policy for disabled employees, seen by them as a reasonable adjustment. When she moved sites in 2016, she requested an allocated parking space at the new site. This was refused with an alternative suggestion: a parking space near the toilets was offered but, on a first-come, first-served basis. If she was unable to locate a space after driving around, she could then park in an unauthorized zone (which would incur a notional sanction, but it would not apply to her) and then she would have to move the car later on. She found this to be very stressful, and thus exacerbated her condition. It was not a suitable adjustment and she brought a claim of disability discrimination on the grounds they had failed to make reasonable adjustments.

The employment tribunal considered that HMRC had made reasonable adjustments with its alternative arrangements, thereby discharging its legal obligation, though it noted that they had failed to comply with their own parking policy. However, as this was determined to have been a discretionary policy in any event, Mrs Linsley was not entitled to rely on it.

On appeal, however, the EAT found the tribunal had erred in assessing the reasonableness of the alternative and that an employer should have to provide a more compelling reason for failing to apply their own parking policy. In addition, they pointed out that a policy does not have to be contractual to be considered in terms of making a reasonable adjustment. The stress caused to Mrs Linsley by the alternative was also highly relevant when assessing the reasonableness of the alternative arrangements and the tribunal had failed to focus on this correctly. Interestingly, the EAT confirmed that an employer does not have to select the adjustment the employee requests, and where there are several possible adjustments it does not have to select the best or most reasonable adjustment, provided that the adjustment selected is reasonable and overcomes the disadvantage to the employee.

The EAT allowed the appeal and remitted the case for the same tribunal to consider the reasonable adjustment issue.

Disability Discrimination: Dismissal discriminatory even if employer only learned of disability at appeal

In Baldeh v Churches Housing Association of Dudley and District Ltd [2019] UKEAT/0290/18 The employer had had concerns about her performance and behaviour and at the end of a six-month probationary period she was dismissed. She appealed the decision, informing them of her depression, but her appeal was turned down. Mrs Baldeh claimed this was disability discrimination (s.15 of the Equality Act 2010).

At the tribunal it was accepted that Mrs Baldeh was ‘disabled’ by reason of depression at the relevant time, but there was an issue about whether the employer knew or ought to have known about that before the date of the dismissal and that issue was decided against Mrs Baldeh. The tribunal rejected the claim because the employer did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal; there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) “arose in consequence of” her disability; there were other reasons for her dismissal in addition which were sufficient; and the dismissal was justified by being a proportionate means of achieving a legitimate aim (as per s.15(1)(b) EqA 2010).

The EAT allowed the appeal. There were errors in relation to each stage of the reasoning. Although the employer did not know about her disability at the time of the dismissal, they may have had actual or constructive knowledge of it before the rejection of her appeal and the rejection formed part of the unfavourable treatment of which she was complaining. There was in fact some evidence that her depression caused the relevant behaviour which the tribunal ought to have considered.  It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim. The tribunal failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response. 

The EAT remitted the matter to a fresh tribunal to consider whether the rejection of the Mrs Baldeh’s appeal was an act of discrimination.

Indirect Discrimination: Enhancing maternity pay but not shared parental pay

Two appeals have been heard by the Court of Appeal recently (Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management) because they covered the same point – is it sex discrimination for employers to enhance pay for women on maternity leave, but offer only the statutory rate for both men and women on shared parental leave? Indirect sex discrimination occurs when an employer has a provision, criterion, or practice (“PCP”) which applies to everybody but results in one sex (in this case men) being put at a disadvantage. Unlike direct discrimination, it is possible for an employer to justify indirect discrimination.

Mr Ali claimed his employer discriminated against him because of his sex because he was denied the opportunity to take shared parental leave on full pay. He was only allowed 2 weeks on full pay, whereas female employees could take 14 weeks’ maternity leave on full pay. At first instance, the tribunal ruled that it was direct sex discrimination, but this was overturned by the EAT who found that the tribunal had erred in comparing Mr Ali’s circumstances to those of a woman who had just given birth. At appeal, Mr Ali argued that more weight should be given to the caring responsibilities that parents have, which can be taken equally by women and men, and that if the primary purpose of maternity leave is to care for the child after the compulsory two-week period, then it is valid to compare a mother on maternity leave to a father on shared parental leave.

Mr Hextall claimed his employer discriminated against him because of his sex as he was only entitled to statutory shared parental pay, when the police force paid new mothers enhanced maternity pay. At first instance, the tribunal found he had been discriminated against, but on appeal, the EAT held that the tribunal had erred in using a direct discrimination comparator (a woman on maternity leave) in an indirect sex discrimination claim. The case was referred back to a tribunal to be heard properly as a claim for indirect discrimination but Leicestershire Police appealed claiming the case should instead have been argued as an equal pay claim

We await the Court of Appeal’s decision which is yet to be published.

Unfair dismissal: Improper proselytising cause for fair dismissal

In Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818, the Claimant was a nurse who assessed patients pre-operations. She used these meetings to discuss her religion with patients including saying prayers and asking patients to sing psalms with her, which resulted in complaints being filed. The matron told the Claimant it was not appropriate and the Claimant assured her she would stop. She did not stop and so disciplinary proceedings were brought, resulting in the Claimant’s dismissal for gross misconduct. She claimed unfair dismissal at the tribunal and made a passing reference to Article 9 of the European Convention on Human Rights (“ECHR”) in the context of the Nursing and Midwifery Council’s Code (e.g. to uphold the reputation of your profession at all times, to achieve this you must not express your personal beliefs (including religious) to people in an inappropriate way). The Claimant submitted that this code must be interpreted in a way that is compatible with her rights under Article 9 ECHR (freedom of religion and to manifest that religion).

The tribunal dismissed the claim, and rejected her Article 9 claim: she was dismissed for the potentially fair reason of her conduct (it had been unreasonable), the investigation and hearing had been fair and reasonable. She requested permission to appeal, but this was denied. She appealed that refusal, complaining that the tribunal had failed to distinguish between true evangelism and improper proselytism in considering the impact of the right under Article 9 ECHR to manifest her religion on the fairness of the dismissal.

The Court of Appeal dismissed this appeal. In its view, the Claimant had acted inappropriately both by improperly proselytising to patients and by failing to follow a lawful management order. This was only an unfair dismissal claim, there was no claim of discrimination on grounds of religion, nor was this a claim directly for breach of the Human Rights Act.Given that the disciplinary process was fairly carried out and the conclusion reached was reasonable, the appeal was dismissed – she had been fairly dismissed.

Whistleblowing: Does the UK tribunal have jurisdiction for seconded co-workers on an EU mission?

In Foreign & Commonwealth Office & Others v Bamieh [2019] EWCA Civ 803 the question before an employment tribunal was – do the whistleblowing provisions contained in the Employment Rights Act 1996 apply extra-territorially in respect of a claim between co-workers seconded to the international EU Rule of Law Mission in Kosovo (“EULEX”), in circumstances where each was (separately) employed by the Foreign and Commonwealth Office (“FCO”)?The background to this case was: after the war in the Western Balkans, the UN Security Council deployed international personnel in Kosovo to help the country reach international standards and to achieve self-government. After the UN left, EULEX was set up in Kosovo manned by seconded personnel from EU member states – from the UK they were seconded from the FCO. The Respondent brought claims in the tribunal against the FCO and the co-workers, based on alleged detrimental treatment for whistleblowing (she had made protected disclosures).The co-workers were themselves FCO employees, seconded to EULEX.

The tribunal answered this question by saying no, the provisions didn’t apply as they weren’t within the territorial scope of the tribunal. The EAT overturned this decision and said yes they were, because answering the question of territorial application requires an assessment of the sufficiency of the connections between individual Respondent and Great Britain. Since each was a UK-employee able to sue or be sued by their employer in accordance with the law of England and Wales, claims between co-workers were within scope.

The Court of Appeal, however, agreed with the tribunal. Whilst there was a common employer among them which satisfied the relevance of s.47B(1A) ERA, the Court of Appeal found that the facts showed a different picture. By working in the EU mission in Kosovo, there was actually more of an influence of Kosovan law or EU law, rather than UK law. Lord Justice Gross found that in such a situation, the focus must be on which legal system was more relevant to the relationship between the parties.  Leave to appeal to the Supreme Court has been sought.

Other news:

Mental Health Awareness Week: Body Image

Last week (13-19 May) was Mental Health Awareness Week, founded in 2001 by charity, The Mental Health Foundation. They run programmes, national campaigns and carry out mental health research. They also provide help and information for businesses, schools, and other communities. The focus of this week was Body Image. 

Working conditions and environment can have a huge impact on mental health and, equally, someone’s mental health can have a significant impact to perform well in their job. These are just some of the statistics from their website:

  • 1 in 6.8 people are experience mental health problems in the workplace (14.7%).
  • Women in full-time employment are nearly twice as likely to have a common mental health problem as full-time employed men (19.8% vs 10.9%).
  • Evidence suggests that 12.7% of all sickness absence days in the UK can be attributed to mental health conditions.

With mental health having such a huge impact on everyone, it is becoming more and more important for businesses to recognise issues or signs and assist their workers, to make everyone’s lives better which can only help improve productivity. For more information see some of their publications here as well as ACAS’ “Mental health in the workplace” advice.

Workplace Stress has driven up number of disability discrimination cases 

As if wanting the best for your workers isn’t incentive enough, recent research carried out by Fox & Partners shows that the number of disability discrimination claims being submitted to employment tribunals has gone up by more than a third between 2017 and 2018. The reason is believed to be stress-induced mental health, alongside a growing readiness, and possibly awareness, of employees to bring claims which relate to their mental health.

As we reported this month on Mental Health Awareness Week, working conditions and environment can have a significant impact on mental health, so it is important that businesses strive to improve the support they can offer their workers, if this rise is to be addressed. The independent Stevenson Farmer Review of mental health and employers (‘Thriving at Work’, published in October 2017, made 40 recommendations which the government has pledged to commit to in its response ‘Improving Lives The Future of Work, Health and Disability’ – a ten year programme of change. In it the government states, “…Being able to harness the skills, talents and contribution of every person should be at the heart of a successful economic plan. But good employment delivers much more than just a strong economy. Good work supports our good health. It keeps us healthy, mentally and physically. It enables us to be economically independent, and gives us more choices and opportunities to fulfil our other ambitions in life…”.

National Minimum Wage: Low Pay Commission finds non-compliance ongoing

A government body, the Low Pay Commission, has recently published a report on ‘Non-compliance and enforcement of the National Minimum Wage’. Using up -to-date statistics for April 2018 they have found 439,000 people were paid less than the hourly minimum wage to which they are entitled. Of these, 369,000 were workers aged 25 and over. This is an increase of around 30,000 on the previous year’s level of underpayment of the NMW. In addition, 135,000 people were paid below £7.20 per hour (the introductory NMW rate when it was brought in in 2016). Whilst they caveat these estimates they report that these findings are consistent with a trend of increasing underpayment since the introduction of the NMW in 2016.

The largest numbers of underpaid individuals work in hospitality, retail and cleaning and maintenance; but childcare continues to be the occupation with the highest proportion of underpaid workers. A third of all underpaid workers are based outside of the commonly accepted low-paying occupations.

Enforcement of the NMW is carried out by HMRC. The Low Pay Commission recommends strong government investment in communications to both workers and employers around minimum wage compliance and enforcement. However, confidence needs building by the government in the complaints process and work needs to be done with trade unions, ACAS, and other bodies. It also highlights the need for the government to invest in getting the guidance to employers right, which will help to simplify the issue longer term.

Wages are stalling despite record employment figures

The Guardian reports that wages are not going up as fast as they should be. In any other circumstances, when the unemployment rate has fallen to its lowest level in more than 40 years (from 3.9% to a record 3.8%) and the labour market recorded a rise to a new high of 32.7 million, one would expect to see an increase in wages. But pay growth has decreased to 3.3% on the year in the three months to March, from 3.5% in the three months to February. 

The answer? Brexit, of course. Analysts suggest that Brexit uncertainty has sent business investment plummeting (or sent it elsewhere), and is likely to have discouraged firms from hiring and improving wage rates. Self-employment on the other hand, has hit a record high of 15.1% of all jobs, last seen in 2017.

Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: advice@dixcartlegal.com.

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.