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.


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.

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!

Absence Management of Disabled Employees

Under the provisions of the Equality Act 2010 there is a duty on an employer to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, puts a disabled person at a substantial disadvantage in comparison with people who are not disabled.

In the case of Jennings v Barts and The London NHS Trust, Mr Jennings, a disabled employee, was dismissed on the grounds of poor attendance due to ill health.  Throughout his employment he had frequent and intermittent ill-health absences, some of which were as a result of his disability which was as a result of a mental rather than physical impairment.

The Trust had a short-term absence policy which it applied rigorously to all staff and which it applied to Mr Jennings.  As a result of the application of the policy, and following a series of meetings which were arranged but postponed due to Mr Jennings’ medical condition, or held in his absence when he failed to attend, Mr Jennings  received a first written warning.  The Trust then commenced the long-term absence procedure as Mr Jennings had gone off sick once the short-term policy had been implemented, citing that the implementation of the policy had made him even more stressed.

Although an Occupational Health assessment in January 2008  said that it would be possible that Mr Jennings would be ready for a phased return to work in March 2008, the Trust completed the long-term absence procedure and at a final stage meeting Mr Jennings’ manager formed the view that his continued absence was unfair to his colleagues, that the department was busy and that there was a real possibility that Mr Jennings might not in fact return to work as no firm date had been set.  Mr Jennings was dismissed.

Mr Jennings issued a tribunal claim for unfair dismissal and failure to make reasonable adjustments under the Disability Discrimination Act 1995 which was the relevant piece of legislation at the time.

The Tribunal found that, in this case, the PCP in question was the Trust’s short-term absence policy and specifically that the Trust did not permit unplanned intermittent absences without sanctions which would ultimately lead to dismissal.  Mr Jennings suggested that the Trust should have exempted him from this policy because of his disability.  The Tribunal felt that such exemption would not have been a reasonable adjustment.   The EAT agreed.

This is an important case for employers as it illustrates very clearly that the duty to make reasonable adjustments is simply that.  Whether an adjustment is reasonable or not will be very fact driven from case to case.  What may be a reasonable adjustment for a large employer of, say, 1000 employees or more may not be reasonable for an employer with only a handful of staff and a limited budget.  However, the findings in this case would seem to confirm that if an employer has a short-term sickness absence policy which is, in itself, fair and which it applies to all staff, then it is unlikely to be either unfair or discriminatory to dismiss someone at the end of the application of the policy even if the reason for the absences was a disability.   As a result, employers are advised to put such a policy in place and to manage all staff absences in line with the policy.  The important thing to note, however, is that if an employer ever deviates from such a policy for one or more members of staff who are NOT disabled then a disabled person may well be able to bring a claim of direct disability discrimination if it is, nevertheless, adhered to for him.  The key to the NHS’s defence was (a) that the policy was, in itself, reasonable and (b) it was applied universally and without exception.

Social Media Policies – Application and Impact

Two recent cases concerning the use of social media by employees highlight the importance for employers of having a clear policy on the use of such public forums by their employees.

In the first, Smith v Trafford Housing Trust, the High Court  held that a Christian employee was entitled to express his views about gay marriage on Facebook and that doing so did not constitute misconduct.

Mr Smith was employed by the Trafford Housing Trust and he was contractually bound by a code of conduct.  This code made clear that:

1. employees must show commitment to the aims of the Trust and have regard to the need to maintain a positive image for the trust;

2.  employees must act in a non-confrontational, non-judgmental manner with customers and colleagues; and

3.  employees must not engage in activities which might bring the Trust into disrepute, either at work our outside work, including by making derogatory comments about the Trust or engaging in unruly or unlawful conduct on sites such as Facebook.

He was also bound by the Trust’s Equal Opportunities Policy.  This policy stated that colleagues and customers should be treated in a respectful and non-judgmental way and that employees should not engage in any conduct which would make another person feel uncomfortable, embarrassed or upset.

Mr Smith used Facebook and had 45 “friends” who were colleagues.  On his Facebook profile he identified himself as a manager of Trafford Housing Trust and described himself as a “full on charismatic Christian”.

On 13th February 2011, he posted a link on his wall to a BBC news article, “Gay church ‘marriages’ set to get the go-ahead”.  He added his own comment after the link which read “an equality too far”.

His colleague, Ms Stavordale, saw the link and Mr Smith’s comment and asked “Does this mean you don’t approve?”

Mr Smith replied  “no, not really, I don’t understand why people have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience.”

As a result of these comments, Mr Smith was disciplined and was found guilty of gross misconduct.  He was demoted rather than dismissed and this was held to be a breach of contract.

The decision of the Court was summarised as follows:

1.  The postings were not capable of bringing the Trust into disrepute.  No reasonable person would think that he was expressing views on the Trust’s behalf.  While a Facebook account was capable of being used for work-related communications, Mr Smith’s Facebook wall did nothing of the sort.  While there was potential for the expression of views causing distress to employees to bring the Trust into disrepute, the moderate expression of Mr Smith’s views about gay marriage on his personal Facebook wall at a weekend out of working hours could not lead a reasonable reader to think the worst of the Trust for having employed Mr Smith.  The court added that “the encouragement of diversity in the recruitment of employees inevitably involves employing persons with widely different religious and political beliefs and views, some of which, however moderately expressed, may cause distress among the holders of deeply felt opposite views”.

2.  The obligation not to promote religious beliefs did not extend to Mr Smith’s Facebook wall irrespective of the fact that 45 of his Facebook friends were work colleagues.

3.  A difference of views is bound to cause upset, but that is the price of freedom of speech.  It was held that Mr Smith had not failed to treat his colleagues with dignity or respect or acting in any way liable to cause offence.  Viewed objectively, Mr Smith’s postings, either themselves or the manner in which they were expressed, were not judgmental, disrespectful or liable to cause offence.

This decision affirms an employee’s right to privacy, viewing Facebook as a social and personal medium, unless the context suggests otherwise (c.f. Novak v Phones 4U Ltd below).  According to the court, it was clear from the employee’s Facebook page that he was not using it for work-related purposes, despite the fact that 45 of his Facebook friends were colleagues.

The EAT’s decision in the case of Novak v Phones 4U Ltd, however,  highlights the scope for comments made on social media to form part of a continuing act for discrimination purposes as such postings tend to remain in public view for long periods of time (if not indefinitely).  This differs from instances of banter in an office where, once the offending statement has been made, time starts to run for the purposes of limitation and issuing claims.  Although this was not specifically addressed in the judgment, it is an interesting point to note for possible future cases involving social media.

It is also an example of a case where the context of the postings are clearly work-related and not social or private.  In Novak, the claimant’s colleagues were using Facebook to specifically discuss and make fun of the claimant, a work colleague in relation to an incident at work.  The claimant  (an American with a disability) was a manager at a mobile phone store. He fell down the stairs at work and has been absent from work ever since. As a result of the comments, he brought claims for disability and race discrimination. In general, office banter has an immediacy which means that those participating will tend not to return to the original joke long after the event, whereas the nature of social media sites invites continual comment and dialogue.  This is what happened here.  The comments continued over a period of several months, with a gap of 7 weeks between the first set of postings and the final set.  Nevertheless the EAT held that the two sets of Facebook postings were one continuous act.  The subject matter of the postings was the claimant’s fall and his subsequent grievance.  It was therefore held that there was clearly a connection in terms of individuals, subject matter and timing of the posts and as such it was one continuing act for the purposes of limitation.

The clear message from both these cases is that social media is not always private but may be deemed so, depending upon the context of its use, even if several people from one place of work interact on it.  As such, it is absolutely vital for employers to have clear social media policies which are carefully drafted and which staff are notified of and, preferably trained on.  It is also vital that such policies are implemented and that breaches of such policies are dealt with consistently across the workplace.

In my next post I will provide a check-list of things to look out for when using e-mail and social media.


Is Anti-Discrimination Legislation in Employment Still Necessary?

I have just read a very interesting article on the notion of what denotes indirect religious discrimination in the workplace, which you can find here:  http://www.lewissilkin.com/Journal/2012/September/Reinventing-indirect-discrimination.aspx

It got me thinking that, perhaps, there is no longer any real need for anti-discrimination legislation in an employment law context given that society has now moved on so much in the last 50 or so years that the notion of what is “reasonable” and “unreasonable” conduct in any given situation is almost universal.

The “reasonableness” test is already one which is used in many types of employment claim.  For example, in unfair dismissal claims, even if an employer can show that he had a potentially fair reason to dismiss someone, the tribunal still has to consider whether it was objectively reasonable for him to dismiss for that reason.

Similarly, in discrimination cases, employers have a duty to make “reasonable adjustments” to accommodate people who are disabled for the purposes of the Equality Act 2010.  Tribunals are also very experienced at considering reasonableness in this context.

For that reason, would it not be sensible to simply make legislative provision for employers to act reasonably in their decision making and conduct when hiring, employing, remunerating, promoting and dismissing employees?  Do we not now universally understand as a society what does and what doesn’t amount to fair and equal treatment?

I’d be interested to hear your thoughts on this.

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