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.

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.

Blowing the Whistle on False Whistle-blowers?

For those of you who don’t know much about the law on whistle-blowing (as set out in the Public Interest Disclosure Act 1998), it essentially protects  workers from detriment or dismissal if they make, in good faith, what are known as “qualifying disclosures” (usually to their employers) that, in their reasonable belief, one of the following events has occurred, is occurring or is likely to occur:

1.  A criminal offence

2. Breach of any legal obligation

3.  Miscarriage of justice

4.  Danger to the health and safety of any individual

5.  Damage to the environment

6.  The deliberate concealing of information about any of the above

The key here is that, as the law currently stands, in order to be “protected qualifying disclosures”, they need only to be made in good faith.  There is no specific requirement for the disclosures to be made in the public interest.  What this means is that an employee who, in good faith, makes a disclosure which relates to a breach of his own contract of employment (i.e. a breach of a legal obligation), such breach affecting only him, will be protected from suffering detriment or dismissal as a result.

The protection from unfair dismissal for whistle-blowers is immediate.  There is no “qualifying period” of employment before the employee can pursue such a claim and the ordinary cap on compensation which can be awarded for unfair dismissal is removed.  This has arguably made pursuing a whistle-blowing claim very attractive, especially for those who have not been working for their employer very long or whose high salaries mean that ordinary unfair dismissal compensation, being capped, would not adequately compensate them if they were unfairly dismissed.

The Government’s view, however, is that this very wide protection currently afforded to whistle-blowers is open to abuse by employees with limited service or very high salaries who suspect that they might be about to lose their jobs and hence make disclosures about alleged breaches of their own contracts of employment.  However, I have seen no evidence that any such abuse is any more widespread than the undoubted abuse by a small number of Claimants of the Equality Act 2010 which affords immediate protection from discrimination from the point of recruitment and which, too, has uncapped compensation.    It is a fear of such claims that has certainly made many of my clients overly (and unnecessarily) fearful about dismissing (for perfectly reasonable and legitimate grounds) black, Asian or other employees with protected characteristics.  However, as I tell my clients time and again, just because someone is black, doesn’t mean that he or she can’t be dismissed for misconduct or poor performance and, provided there is no other evidence of unlawful discrimination, on what basis could they pursue such a claim?  The same could be said of employees without qualifying service who might seek to pursue whistle-blowing claims.  If the employer has done nothing wrong, then the employer has nothing to fear.

Nevertheless, the Government has determined that the law as it stands does not provide enough protection for employers from spurious whistle-blowing claims and as such Clause 15 of the Enterprise and Regulatory Reform Bill will amend the Employment Rights Act 1996 so that qualifying disclosures must in the reasonable belief of the worker be made “in the public interest”.  This will apply to all the categories of protected disclosure above.  However, the requirement for the disclosure to be made “in good faith” will be removed.

In seeking to solve one perceived problem, to my mind, the Government has created another – there will undoubtedly be endless litigation seeking to determine exactly what is meant by “in the public interest” given that breaches of an individual’s’ contract of employment may well have an element of public interest and it will also place an extremely onerous burden on the employee, particularly in the case of the employee without legal representation.   Hardly likely to promote the culture of openness that the Government says it is seeking, particularly in light of the recent problems with the NHS.

 

 

 

 

 

 

 

 

Employment Tribunal Fees

Finally, this summer, (probably July), fees will be introduced for Employment Tribunal claims.  In my view these have been a long time coming.  Long gone are the days when Employment Tribunals were places where individuals could easily represent themselves and where the maximum sums being claimed were relatively low.  These days employment legislation is significantly more complex than in the past and the tribunals are over-stretched.

Although the introduction of fees is no longer being promoted by the Government as a way of dissuading those with weak claims from pursuing them, but rather as a way of lessening the cost burden to the tax payer, it will no doubt result in a significant reduction in the number of weak and spurious claims brought, which is no bad thing .

Many people will no doubt argue that the introduction of fees is wrong when tribunal claims are most frequently brought by those who have lost their jobs (and hence their income) and are therefore most in need of free access to justice.  I do have some sympathy for that view,  however, there have always been issue fees for proceedings in the Civil Courts and this hasn’t deterred people from pursuing their claims.  I cannot see why the Employment Tribunals should be any different.    Furthermore, there will be a system for remission of fees for those with very low incomes and who satisfy other criteria.  As a lawyer who has spent over 13 years representing both Claimants and Respondents, it is apparent to me that a significant number of claims are brought simply because the Claimant has nothing to lose and might get a pay off just because he or she has issued proceedings.  I am therefore very much in favour of anything  which may serve to deter the pursuance of such claims.

Similarly, anyone with a really meritorious claim who doesn’t qualify for a remission of fees should be able to find the means to pay the issue fee, especially as such money will be recouped either upon settlement or at the end of the trial in the likely event that the claim will succeed.  Given that the introduction of fees should reduce the number of claims pursued, the time for cases to come to trial should reduce, with most simple 1 day trials being heard or settled within 6 months of the date of issue.

The fees will be as follows:

  • level 1 claims (i.e. the very straightforward ones such as unlawful deductions from wages etc) – £160 issue fee; £230 hearing fee
  • level 2 claims (all other claims) – £250 issue fee; £950 hearing fee
  • Employment Appeal Tribunal – £400 appeal fee; £1,200 hearing fee
  • there are several other fees, eg £60 for an application to dismiss following settlement and £600 for judicial mediation

You can find more information here:  https://consult.justice.gov.uk/digital-communications/et-fee-charging-regime-cp22-2011

Check-list for Employees on use of E-mail and Social Media

Below is a check-list of things for employees to consider when using e-mail and social media:

Reputational risks

What you write in e-mails or on the internet could seriously damage your own or another person’s reputation, you could lose your job and you and your company could be sued, fined or even imprisoned.

Stop and think before you click

  • Anything written in an e-mail has the potential for public exposure (for example, if the e-mail is forwarded to others).
  • Posting on the internet is essentially making a public statement (for example, when commenting on social media sites, blogs or other electronic forums).
  • Failing to take care about what you write can have serious personal, disciplinary and financial implications.
  • Even if you are e-mailing or using other forms of online communication in your own time, if you refer to people at work or work related matters, you and your company could get into trouble.

E-mails and internet postings can be used in legal proceedings

  • E-mails and internet postings can be used against you or your company in legal proceedings, disciplinary meetings or other regulatory investigations.
  • Never delete e-mails relating to a legal dispute or investigation or potential dispute or investigation.

It is very difficult to delete e-mails and online postings

  • Simply deleting e-mails or internet postings will not necessarily solve the problem. Forensic IT equipment can still find supposedly “deleted” messages.
  • What you publish online will likely be available for a long time, to be read by anyone, including the company itself, future employers and colleagues.

Do not be hurtful or spread rumours

  • Never send e-mails or post content online that could be thought of as obscene, racist, sexist, bullying or hurtful.
  • Never lie, exaggerate or make a false or inaccurate statement about another company or person. You could be sued even if an e-mail was only sent to one person.
  • Forwarding an e-mail can be just as serious as writing the original – you could be sued even if the original was sent or forwarded to only one person.

 Take care with confidential information

  • Where possible, avoid sending confidential information (such as confidential intellectual property or trade secrets) by e-mail. Take legal advice on how the information can be best protected.
  • Any e-mail containing confidential information should be clearly marked as “confidential”.
  • If you receive an e-mail that contains another company’s confidential material (for example, a company’s trade secrets) and the e-mail was not part of a legitimate business transaction, you should take legal advice immediately. 

Do not make a contract by mistake

  • A legally binding contract can be made by a simple exchange of e-mails.
  • Make it clear if you do not intend the e-mail to be binding.

Do not copy someone else’s work

  • Only use or attach other people’s work to your e-mails if you have permission or you know it is not protected by copyright or other intellectual property rights (for example, trade mark rights). This includes photographs and music.
  • Do not assume that work you find on the internet is free to use.

Do not send or view offensive or unknown material

  • Monitor what arrives in your inbox, especially if you do not recognise the sender or the title of the e-mail seems odd.
  • If there is a risk that an e-mail may contain a virus, do not open it and inform the IT department immediately.
  • You could be disciplined or even dismissed for forwarding inappropriate e-mails or accessing inappropriate websites at work. In severe cases it could also be a criminal offence.

Avoid unproductive usage

  • Most businesses allow light personal internet and e-mail usage as long as it does not interfere with your duties. However, excessive, unproductive usage is not permitted and may be treated as gross misconduct.
  • E-mails can often be a waste of time. Think carefully before copying someone in on an e-mail, especially if there is a long chain of e-mails attached.
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