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.

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.

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.

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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