‘Bosses Free to Spy on Emails’? Well no, not really

A Range of Reasonable Responses

Sometimes even a rather routine employment law case can capture the imagination of the press and become a big story. This week the European Court of Human Rights found that there was no breach of Article 8 (respect for private life) when an employer read personal messages sent by an employee on a work-owned Yahoo Messenger account.

The story has made the front page of the Sun and the Daily Mail. Surprisingly they both seem to disapprove of the decision – perhaps because they think that the Court has conferred a right to ‘snoop’ that wasn’t previously there.

The Article from the Daily Mail opens:

BOSSES were yesterday given the right to spy on staff emails.

In a landmark ruling, the European Court of Human Rights granted them full access to personal messages sent from company computers or smartphones.

This is wrong. Hopelessly, massively and completely wrong. The European Court of…

View original post 1,024 more words

Extension of the Right to Request Flexible Working – Summary of key provisions

On 30 June 2014, the right to request flexible working was extended to all employees with at least 26 weeks’ continuous employment.  Unlike the procedure which was previously in force for parents with young children, the new procedure is far less prescriptive.  All that needs to be done by the employee to trigger the procedure is to make a written request to vary his or her working arrangements.  Only one such request can be made in a 12 month period.  Following receipt of that request, the employer has three months to consider the request and reach a decision.  This period can be extended by agreement and the employer can discuss the request with the employee to try and reach agreement if the actual basis of the request cannot be accommodated.

An eligible employee may request a change to their employment terms if the change relates to:

• A change to the hours they work.

• A change to the times when they are required to work.

• A change to the place of work (as between their home and any of the employer’s workplaces).

The employer must deal with the application in a reasonable manner and therefore it is certainly advisable that any request is dealt with in exactly the same way as requests by parents/carers were dealt with previously.

The employer can still only refuse a request for one (or more) of the eight reasons set out in the legislation.  These are:

• the burden of additional costs;

• detrimental effect on ability to meet customer demand;

• inability to reorganise work among existing staff;

• inability to recruit additional staff;

• detrimental impact on quality;

• detrimental impact on performance;

• insufficiency of work during the periods the employee proposes to work; or

• planned structural changes.

Whilst the legislation does not expressly require an employer to allow an employee to appeal against the rejection of their flexible working request, the Acas Code suggests that employees should be allowed to do so:

“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application.” (Paragraph 12.)

A right of appeal may therefore come to be seen in many cases as an essential part of dealing with a flexible working request in a reasonable manner, as required by section 80G(1) of ERA 1996.

It will be interesting to see how this change pans out in practice.  The old legislation, whilst applying to both men and women, did tend to benefit mainly women and, as such, employers were often wary of refusing requests for fear of being found guilty of indirect sex discrimination.  As the right to request flexible working is now available to everyone, it will be interesting to see whether this will have the effect of increasing flexibility in the workplace or whether employers will feel that they can refuse flexible working requests from non-parents because they assume they will not be able to pursue indirect sex-discrimination claims.  I would be nervous to advise clients to refuse requests on those grounds, however, as it may well be that some men will be able to pursue indirect sex discrimination claims on the basis that they are being treated less favourably than women in the workplace who have children and whose flexible working requests have already been accepted.  There is also, now, the right to issue a tribunal claim if the employee believes that the employer failed to deal with his or her request in a reasonable manner.  Clearly, a failure to act consistently across the workforce would be likely to be seen as unreasonable.

Extension of the Right to Request Flexible Working – Summary of key provisions

On 30 June 2014, the right to request flexible working was extended to all employees with at least 26 weeks’ continuous employment.  Unlike the procedure which was previously in force for parents with young children, the new procedure is far less prescriptive.  All that needs to be done by the employee to trigger the procedure is to make a written request to vary his or her working arrangements.  Only one such request can be made in a 12 month period.  Following receipt of that request, the employer has three months to consider the request and reach a decision.  This period can be extended by agreement and the employer can discuss the request with the employee to try and reach agreement if the actual basis of the request cannot be accommodated.

An eligible employee may request a change to their employment terms if the change relates to:

• A change to the hours they work.

• A change to the times when they are required to work.

• A change to the place of work (as between their home and any of the employer’s workplaces).

The employer must deal with the application in a reasonable manner and therefore it is certainly advisable that any request is dealt with in exactly the same way as requests by parents/carers were dealt with previously.

The employer can still only refuse a request for one (or more) of the eight reasons set out in the legislation.  These are:

• the burden of additional costs;

• detrimental effect on ability to meet customer demand;

• inability to reorganise work among existing staff;

• inability to recruit additional staff;

• detrimental impact on quality;

• detrimental impact on performance;

• insufficiency of work during the periods the employee proposes to work; or

• planned structural changes.

Whilst the legislation does not expressly require an employer to allow an employee to appeal against the rejection of their flexible working request, the Acas Code suggests that employees should be allowed to do so:

“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application.” (Paragraph 12.)

A right of appeal may therefore come to be seen in many cases as an essential part of dealing with a flexible working request in a reasonable manner, as required by section 80G(1) of ERA 1996.

It will be interesting to see how this change pans out in practice.  The old legislation, whilst applying to both men and women, did tend to benefit mainly women and, as such, employers were often wary of refusing requests for fear of being found guilty of indirect sex discrimination.  As the right to request flexible working is now available to everyone, it will be interesting to see whether this will have the effect of increasing flexibility in the workplace or whether employers will feel that they can refuse flexible working requests from non-parents because they assume they will not be able to pursue indirect sex-discrimination claims.  I would be nervous to advise clients to refuse requests on those grounds, however, as it may well be that some men will be able to pursue indirect sex discrimination claims on the basis that they are being treated less favourably than women in the workplace who have children and whose flexible working requests have already been accepted.  There is also, now, the right to issue a tribunal claim if the employee believes that the employer failed to deal with his or her request in a reasonable manner.  Clearly, a failure to act consistently across the workforce would be likely to be seen as unreasonable.

Moving

The BelindaLester blog is moving to www.lionsheadlaw.co.uk.  Those of you who follow this blog should automatically move with me.  

Disability and Adjustments – What is reasonable?

Well it has been some time since my last post.  I hope you have missed me.  I have been very busy since we last met, having set up Lionshead Law which started trading on 2 September.   Exciting times!  However, I am back and today I will be discussing whether or not an employer must automatically offer a disabled employee an alternative role following a company restructure, even though other affected staff are required to undergo a competitive interview process.    

The premise behind this argument is that an employer is under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) puts a disabled employee at a disadvantage when compared to an employee who is not suffering from that disability.   In the case of a company reorganisation resulting in the changing of job roles, the PCP would be the requirement for all affected staff to competitively interview for one of the newly created roles.  Therefore, the first question to decide is whether the requirement to apply for a new post puts the disabled person at a disadvantage when compared to his colleagues. 

If the answer to that question is yes (and it invariably will be), then the next question is whether there is any reasonable adjustment that the employer can make to effectively level the playing field.   In the EAT case of Wade v Sheffield Hallam University it was held that the university was not in breach of its duty to make a reasonable adjustment when the Claimant was not automatically offered a new post when her original post was deleted following a reorganisation. 

In this case the Claimant’s role disappeared following a restructure at the university.  She applied for a new post and was unsuccessful because she did not fulfil two of the essential criteria which the post required.   Two years later she applied for the same post and was, again, rejected.  She argued that she should not have had to apply for the post competitively as her disability put her at a disadvantage when compared to individuals who did not suffer from her disability and that as such, the university should have made an adjustment to the process enabling her to be automatically selected for the post without having to compete against her non-disabled colleagues.

The question came down to reasonableness.  Whilst it may be a reasonable adjustment for a company to appoint a disabled individual to a new post without requiring him to interview for it, what ultimately decided this case in the university’s favour was that the employee concerned did not fulfil all of the essential criteria for the position.  It was deemed not reasonable to require the university to appoint someone to a post where only some of the essential criteria had been fulfilled.   However, had the employee fulfilled all the essential criteria then it is likely that it would have been a reasonable adjustment on the part of the university to simply appoint her to the post rather than require her to apply for it alongside her colleagues.

Companies  in similar situations with disabled employees therefore need to be careful when carrying out restructures/redundancies.  Where they are considering requiring affected staff to apply to be considered for new roles/alternative positions, if it is determined that an affected employee who is also disabled fulfils all of the essential criteria for an alternative role, then it may well be an act of unlawful discrimination if that person is not offered the post automatically but instead required to apply for it alongside his colleagues.

Redundant Employees were Unfairly Dismissed

In the EAT case of Contract Bottling Ltd v Cave (1) and McNaughton (2) it was held that the reason for the Appellants’ dismissals was, indeed, redundancy even though the jobs they had both performed continued to exist after their dismissals. How so?

The key statutory provision is section 139(1) of the ERA 1996, which defines redundancy in the following way:

“For the purposes of this Act an employee who is dismissed should be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—

(a) the fact that his employer has ceased or intends to cease—

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was employed, or

(b) the fact that the requirements of that business—

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

Have ceased or diminished or are expected to cease or diminish.”

In this case the employer’s case was that it had a reduced requirement for employees to carry out work of a particular kind. However, strangely, although the cuts were only needed amongst administration and accounts staff, it decided to put ALL its staff in the pool and apply a generic selection matrix in order to determine who would be dismissed. What this meant was that people were retained in administration and accounts and others from other departments where such a reduction in headcount was not required, were dismissed. The Employment Tribunal mistakenly held that, because the individuals who were dismissed were not from the departments where the reduction in headcount was needed, their dismissals could not have been by reason of redundancy. However, the EAT overturned this decision on the basis that it was perfectly clear that there was a reduced requirement in the company for employees to carry out work of a particular kind. It was irrelevant, for the purpose of the definition, whether the pool from which the staff were selected went beyond the areas where reduction in headcount was needed. What the pool for selection does is help determine whether or not the decision to dismiss for redundancy was fair.

As a result, the EAT upheld the company’s appeal against the Tribunal’s finding that the reason for the dismissals was not redundancy. However, it agreed with Tribunal’s finding that the dismissals were, nevertheless, unfair. It then remitted the case back to the original Tribunal for it to assess whether the compensation awarded to Cave and McNaughton should be subject to a Polkey reduction on the basis that they would likely have been dismissed anyway even if a fair procedure had been followed.

Interestingly, the original tribunal’s finding of unfair dismissal was not centred around the somewhat unusual (to put it mildly) pool for selection, but was instead highly critical of the process for selection from that pool. This case is therefore also useful as an illustration of how difficult it is for an employment tribunal to criticise the pool from which employees are selected for redundancy provided the employer can (a) show it has given real consideration to the pool and (b) provide evidence to establish that it was not outside the range of reasonable responses to select from such a pool.

Who is REALLY the Victim Here?

The recent EAT decision in Woodhouse v West North Homes Leeds is enough to make any employer’s hair stand on end but, on the facts, it would seem to be the right one, legally speaking if not on any other basis.  In this case, Mr Woodhouse claimed that his dismissal by his employer amounted to victimisation because he was dismissed for carrying out protected acts (bringing discrimination proceedings/raising grievances relating to discrimination).  Such acts will always be protected provided they are carried out in good faith even if the allegations of discrimination are misguided.

Mr Woodhouse, who is black, had, over a four year period, lodged ten internal grievances against his employer.  His grievances contained baseless allegations that he was being discriminated against because of his race.  In addition, he brought seven (unsuccessful) employment tribunal claims against the same employer, none of which were found to have had any basis in fact either.  

Many of you will be amazed that he managed to remain in employment for so long but eventually his employer did dismiss him, citing a fundamental breakdown in trust and confidence.  He (unsurprisingly) then brought a victimisation claim.  The employment tribunal, however, held that the dismissal did not amount to victimisation because the employer would similarly have dismissed any employee (irrespective of race) who had brought a similar number of merit-less grievances and claims. I, personally, give the employer credit for holding out for so long and it would seem that the employment tribunal felt the same way.  However, this judgment was clearly wrong as a victimisation claim does not require a comparator – that is only required in a straightforward discrimination claim.  To succeed in a victimisation claim, the Claimant need only establish that the less favourable treatment was as a result of his having,carried out a protected act in good faith.  In this case, there was no finding of bad faith which is why, on appeal, the EAT overturned the tribunal’s decision.

This is a really quite extreme example of how an employer can be damned whatever it does and I would argue that the definition of victimisation should be amended in light of it so that an act relating to a specific allegation of discrimination be no longer protected if it is repeated more than twice during a period of, say, two years (with this caveat being restricted to cover only cases where the allegations of discrimination are held to be unfounded).  

I would be very interested to know your thoughts.

The Dismissal Vanishes!

Beware the employer who reinstates an employee following a successful appeal against dismissal but then seeks to impose conditions to the reinstatement, particularly if the original decision to dismiss was based upon a flawed disciplinary or capability procedure.

In the recent EAT case of Thomson v Barnet Primary Care Trust UKEAT/0247/12, a district nurse was summarily dismissed on capability grounds.  She lodged an appeal and was successful.  So far so good and the PCT probably felt it was out of the woods.  However, although she was reinstated with full back pay for the period between the initial dismissal and the outcome of the successful appeal, her employer, a primary care trust said she could only actually return to work if she accepted (a) a final written warning to remain on her file for three years; (b) attendance on a training programme and (c) a competency assessment.  She was suspended on full pay whilst she decided whether to accept these conditions.  After a period of time during which the PCT and the nurse were wrangling over these conditions, she resigned claiming constructive dismissal, stating that the reasons for her resignation were the fact that the PCT had committed significant contract breaches prior to her original dismissal and had compounded those breaches by seeking to impose new contractual terms upon her following her reinstatement.

The employment tribunal held that the Claimant, in accepting her pay whilst effectively suspended, had accepted the new conditions.   It also held that she was not able to rely upon any alleged breaches which occurred prior to her dismissal as she had effectively waived them by accepting her pay.

The EAT disagreed and upheld the Claimant’s appeal.   Although she never returned to her post, her employment had been reinstated, the effect of which was that there had been no dismissal.  The dismissal effectively vanished.  However, the primary care trust’s handling of the disciplinary process, combined with the subsequent imposition of the conditions, amounted to a repudiatory breach of her contract. The EAT held that the tribunal had erred in its conclusion that the employee had waived the right to complain about breaches which occurred prior to the original dismissal because the success of her appeal meant that she hadn’t actually ever been dismissed.  The dismissal was as if it had never taken place and as such the Claimant could not be found to have accepted the new contract terms or waived the previous breaches.

So what should an employer do when it decides to overturn a decision to dismiss on appeal?  In my opinion, the first thing the employer must decide is whether the success of the employee’s appeal was because of the employer’s own failure to follow its original procedure properly or whether it was because the employee brought new evidence to the appeal which meant the dismissal was no longer appropriate.  If the former (as in this case) then it would seem to me to be wholly inappropriate to try and impose a different sanction (even if the relevant procedure allowed for this) as the imposition of any sanction would be based upon a flawed procedure.

My advice in this case would be for the employer carry out the procedure again but this time correctly.  If, at the end of the process, it determined to dismiss or instead that some lesser sanction could be imposed in accordance with its own procedure, then it could be fairly confident in the safety of its decision.  However, if the employer determined when considering the employee’s appeal that the decision to invoke the procedure which led to the original decision to dismiss had not been the right decision, then the only option is to reinstate the employee without invoking any conditions.  It would also be very wise to apologise to the employee in either case!

Employment Tribunal Fees – Part 2

I attended an employment law master class this week given by Daniel Barnett of Outer Temple Chambers and one of the topics covered related to the introduction of fees in the Employment Tribunal.  As those of you who read my January post will know, I was initially very much in favour of their introduction, but I have now had a chance to reflect and I am not quite so positive in my views.  It now seems apparent that, whilst the introduction of fees will certainly act to significantly reduce the number of claims being pursued,  it is unlikely that the reduction will be as a result of those with unmeritorious claims simply deciding not to pursue them.  What is more likely is that those with highly meritorious but low value claims will simply not be able to afford to pursue them given that the issue and hearing fees may exceed the value of the claims and those with unmeritorious discrimination claims (i.e. those who believe their perceived claims have significant value) will still bring them in order to try and wrestle a pay off from their (former) employer.  That, regrettably, is unlikely to change.

I also said in January that those who cannot afford the fees will be able to invoke the Civil Fees Remission Scheme.  However, this is a hugely complex scheme which has been described by the Citizens’ Advice Bureau as not fit for purpose.  A Claimant will be entitled to a full remission of fees if he or she is on non-means tested Income Support.  However, anyone who loses a job and claims benefits will be on a means-tested benefit.  Furthermore, if an individual resigns (even if that resignation is because of a constructive dismissal), or gets a bad reference, there is no entitlement to Job Seekers’ Allowance for 28 weeks.  Therefore, in practice, it is going to be extremely difficult, if not impossible, for individuals to qualify for a full remission of fees.

The introduction of fees, coupled with the introduction of compulsory early conciliation (prior to claims issue), will undoubtedly reduce the number of claims by an estimated 25% – 33%.  However, there is no evidence that the Tribunals are currently over-burdened and there is similarly no evidence to suggest that it is the unmeritorious claims which will be filtered out.

So here you have it, a complete U-turn from me.  Something which my husband and friends will tell you is an event rarer than hens’ teeth.

Are the Obese Protected from Discrimination on the Grounds of their Weight?

Although discrimination on the grounds of someone’s weight is not unlawful for the purposes of the Equality Act 2010 (and nor was it unlawful under the old DDA), nevertheless obese individuals may well fall within the provisions of the Act as a result of other impairments which arise as a result of their obesity.

A person has a disability if he has a “physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities”.  Whilst obesity, of itself, cannot be classed as an impairment, in the recent case of Walker v Sita Information Networking Computing Ltd,  Mr Walker, as a result of his obesity, had numerous physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression), which, as a result of “functional overlay” caused him significant difficulty in his day-to-day life.  Functional overlay is defined as “an emotional aspect of an organic disease. It may occur as an overreaction to an illness and is characterized by symptoms that continue long after clinical signs of the disease have ended”.  It is not, however, a medical condition.  The Employment Tribunal judge at first instance, finding that there was no clear medically defined cause of Mr Walker’s condition, held that he was not disabled.

However, The EAT (the President, Mr Justice Langstaff sitting alone) allowed Mr Walker’s appeal. He said that the employment judge had been wrong to focus on the fact that the medical evidence could not identify a physical or mental cause for Mr Walker’s conditions. The cause, he said, was not the issue.  The determinative factor was whether Mr Walker had a physical or mental impairment which had a significant effect on his ability to carry out normal day-to-day activities and he clearly had both.  The cause of such impairment was not the issue to be determined and the fact that a claimant’s impairment may lack an apparent cause was really a matter of evidence rather than a legal issue. If there is no evident cause of a supposed impairment, then a tribunal may conclude that the claimant does not suffer from it.  However, in this case, there was no challenge to the evidence that Mr Walker was suffering from the impairments he complained of.

Mr Justice Langstaff concluded that:

• Obesity does not of itself render a claimant disabled. However, it might make it more likely that they are. On an evidential basis, a tribunal might conclude more readily that an obese claimant suffers from an impairment or a condition such as diabetes. Further, the obesity might affect the length of time for which the impairment is likely to last (with regard to whether the impairment has a “long-term effect”). Where an obese individual is determined to lose weight, and a tribunal could conclude that they will reduce their weight to normal levels within a year, this might mean that impairments connected with the obesity might not be considered “long-term” for discrimination purpose.

Whilst on the face of it this looks like a case of weight discrimination being brought in by the back door, in fact it is no different from the current position whereby, for example, an alcoholic could be protected from discrimination not because of his alcoholism (an excluded condition) but because of, for example, associated liver disease.

Employers might, however, want to consider helping their employees to live a healthier lifestyle and one way might be to stop the tradition which exists in many companies of staff bringing in cakes when it’s their birthdays!