Employment

Disability Discrimination and Ill-health Capability Dismissals
13 July, 2018

This week, the Employment Appeal Tribunal (EAT) served a useful reminder of how the handling of a dismissal on grounds of ill-health capability may give rise to valid claims for disability discrimination.

Ail v Torrosian: the background

In Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali was signed off from his role as a GP on long-term sick leave basis after a heart attack. His employer accepted the medical opinion that he was unlikely to ever be fit again for full-time work. Despite this, Dr Ali’s medical report confirmed his fitness to work on a phased, part-time basis. Before such a return could take place, Dr Ali suffered an unrelated shoulder injury and was signed off work for a further period of leave.

Dr Ali was invited by his employers to a medical capability meeting. They discussed future adjustments to Dr Ali’s hours and duties and Dr Ali provided a doctor’s certificate in respect of his shoulder injury. Two weeks later, Dr Ali’s employers dismissed him on the grounds of capability.

Dr Ali brought claims in the Employment Tribunal of unfair dismissal and disability discrimination, specifically a claim for discrimination arising from disability. This occurs where an employer treats an employee unfavourably because of something arising in consequence of their disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Disability discrimination?

The Employment Tribunal concluded that Dr Ali had been unfairly dismissed due to shortcomings in the procedure followed by his employer in reaching its decision to dismiss.  However, the claim of disability discrimination was rejected by the Tribunal. This was because although Dr Ali’s dismissal was unfavourable treatment which arose “in consequence” of his disability, his employer was justified in the dismissal by its legitimate aim of ensuring patient care.

Dr Ali appealed to the EAT, which allowed the appeal. The EAT held that the Employment Tribunal had failed to consider less onerous ways by which Dr Ali’s employers could achieve its legitimate aim. One such alternative had already been suggested by medical evidence: a phased return to part-time work. The claim was therefore remitted to the Employment Tribunal to reconsider the question of proportionality, in light of its finding that part-time working could have been accommodated.

The importance of reasonable adjustments

This case highlighted the failure by Dr Ali’s employers to consider and make reasonable adjustments before reaching its decision to dismiss him. Ultimately this failure indicated that his dismissal was not proportionate, and so discriminatory. The legitimate aim of ensuring the best care for patients might have been achieved by other means, consistent with the duty to make reasonable adjustments, which would not involve the ending of Dr Ali’s employment.

All employers which are considering the dismissal of a disabled employee on ill-health capability grounds need to review whether they have met their duty to make reasonable adjustments, and properly viewed dismissal as very much the last resort.

Typical adjustments which employers may consider making in this context include changes to hours or duties, allowing working from home, or redeploying to alternative roles. What adjustments will be reasonable in each case will very much depend on the particular circumstances, and employers are strongly advised to take guidance from their occupational health advisers.

Please contact our Employment team if you require guidance and support in managing the long-term sickness absence of your employees and protecting your organisation against disability discrimination and unfair dismissal risks.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw


Mitigating liability in discrimination claims – have you taken all “reasonable steps”?
5 July, 2018

Employers do not always appreciate that they will be legally responsible for acts of discrimination, harassment and victimisation by their workers in the course of their employment regardless of whether they knew about or approved of what the worker did.

This issue is of particular relevance in the aftermath of the #MeToo movement as we have seen a sharp increase in the number of sexual harassment allegations that are being raised.

Employers often overlook the fact that acts done “in the course of employment” can include acts that take place in locations classified as an extension of the workplace such as at leaving drinks at a pub, Christmas parties or office away days.  

So how can an employer put itself in the best position to protect against claims if incidents of this nature do occur?

An employer will not be held vicariously liable for acts of discrimination or harassment  if it can show that it has taken all reasonable steps to prevent the worker from acting unlawfully.

What does this actually mean in practice?

  • Employers should have an Equal Opportunities and Anti-Harassment and Bullying policy in place which set out what is expected of its employees;
  • It is important that somebody is given responsibility for implementing the policies and that they are reviewed regularly;
  • The policies should make it clear that any unlawful discrimination will be treated with the utmost seriousness and is likely to be deemed gross misconduct;
  • Employees should be made aware of the policies and their implications and the employer should keep adequate records to demonstrate that employees have been made aware;
  • Employees should be provided with training on equal opportunities and harassment issues and such training should be regularly refreshed and records kept;
  • Employers should handle complaints in a prompt fashion and treat them with the priority and seriousness that they warrant, taking disciplinary action where appropriate;

 

Are you confident that your organisation has taken all of the steps set out above? If not, it is vital that you act now. Don’t wait until you receive a claim before acting because, at that stage, it will be too late to run the “reasonable steps” defence.

Don’t forget that we are here to make your life easier. We can draft and review policies, provide training for your employees on equal opportunities and harassment issues and provide guidance in the event that a complaint is made.  For further information please contact Camilla Beamish.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw


Whistleblowing – supporting an allegation with information
29 June, 2018

In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 the Court of Appeal considered the circumstances in which allegations made by a worker may amount to a ‘protected disclosure’. The act of making a protected disclosure is commonly referred to as ‘whistleblowing’.

Protected disclosures

A protected disclosure is a disclosure of information which, in the reasonable belief of the worker making the disclosure, shows that one or more of six specified types of malpractice has taken place, is taking place or is likely to take place. These practices include the commission of a criminal offence, the endangerment of an individuals’ health and safety or a failure to comply with legal obligations. Where a disclosure benefits ‘protected’ status, the employee who makes it gains enhanced protection from dismissal. If the reason, or the principal reason, for dismissing an employee is that they have made a protected disclosure, that dismissal will be automatically unfair.

Allegation, disclosure of information, or both?

The definition of a protected disclosure makes clear that a worker must actually disclose information in order for this act to attract protection. Established case law on whistleblowing states that a mere allegation or assertion of malpractice by an employer does not amount to a protected disclosure.

Ms Kilraine brought proceedings before the Employment Tribunal alleging that she had been subjected to a detriment and subsequently dismissed by her employer for making four disclosures. These disclosures, she argued, were protected by law. Her case was dismissed, with the Tribunal ruling that each of these disclosures amounted only to an allegation rather than a “disclosure of information”.

Having failed with an appeal to the Employment Appeal Tribunal, Ms Kilraine took her claim to the Court of Appeal. This further appeal focused on two of her alleged protected disclosures. The substance of each appeal was the Employment Tribunal’s error in judgement in suggesting that there is a clear and irreconcilable difference between an ‘allegation’ and a ‘disclosure of information’.

The Court of Appeal dismissed Ms Kilraine’s appeal. It stated that, whilst the Employment Tribunal had made an error, it had reached the correct decision. With regard to one of Ms Kilraine’s disclosures, she failed to disclose information with enough specific, factual content to show any malpractice of the types listed in the legislation. In respect of the other disclosure it was decided that although Ms Kilraine had made a disclosure of information, this information did not properly demonstrate any alleged malpractice on the part of her employer. 

Consequences of the Kilraine decision

This decision is useful in clarifying that an allegation may also amount to a disclosure of information, rather than these two concepts being incompatible. In assessing whether a disclosure will be protected, a number of factors are important. Most importantly, a disclosure must include supporting information about the malpractice complained of.

The Kilraine decision provides welcomed clarity on how to determine whether a disclosure will be protected. However, it also serves as a reminder to workers to provide sufficient details in order to benefit from statutory protections.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw


Employment status – the Supreme Court has its say in Pimlico Plumbers
14 June, 2018

Yesterday, the Supreme Court handed down its judgement in the case of Pimlico Plumbers Limited and another v Smith [2018] UCSC 29.

The result of this decision was the dismissal of Pimlico Plumbers’ appeal, with the Supreme Court confirming Mr Smith’s status as a worker rather than a self-employed individual.

We previously covered the background to this case in our blog, ‘Worker status – the plot thickens’. In summary, the issues in consideration were:

  1. whether Mr Smith was required to perform work personally; and
  2. whether Pimlico Plumbers was a client of Mr Smith.

The distinction between employee, worker or self-employed status is vital in determining an individual’s rights and protections. A self-employed individual will have a lower level of legal protection than an employee or worker, for example they do not have the right to national minimum wage and holiday pay.

One of the factors in determining employment status is whether there is a genuine right to appoint a substitute.  The Supreme Court examined Mr Smith’s right to appoint a substitute and found that Mr Smith’s contractual entitlement to do so was subject to several limitations. In particular, his substitute had to be another individual engaged by Pimlico Plumbers on terms similar to those by which Mr Smith was bound. The Supreme Court concluded that this limited right was not enough to rebut the overriding obligation for Mr Smith to provide his services personally.

The Supreme Court also examined whether Pimlico Plumbers was Mr Smith’s client.  In doing so it looked at the contractual relationship between them. The contractual documents did provide Mr Smith with certain freedoms associated with self-employment, which included his ability to reject offers of work and to take assignments from other parties.  Pimlico Plumbers were however found to also exercise considerable control over Mr Smith.  This included dictating what he wore at work, his administrative duties and the terms on which he was paid.  Overall, it found that such a level of control was more indicative of an employer-worker relationship between the parties, than one of self-employment.

Taking these factors together, the Supreme Court concluded that Mr Smith was in fact a worker and was therefore entitled the additional legal rights enjoyed by workers.

What next?

The Supreme Court’s decision emphasises that it is form, not substance, which determines an individuals’ employment status. Businesses must structure their engagements to ensure that they accurately reflect the nature of their relationships as the Courts will look beyond the contractual documentation to establish the true working relationship between the parties.

Mr Smith can now feel confident in the recognition of his status and rights, but for many others uncertainty remains. Last year the government commissioned the Taylor Review, which made recommendations in respect of employment status (see blog) Taylor-made ideas for overhauling employment law and it has recently launched a consultation on ‘off payroll’ workers in the private sector (see blog) Consultation document heralds a reform to the taxation of contractors working through personal service companies.  Meanwhile the ‘gig economy’ continues to grow and others in the position of Mr Smith and Pimlico Plumbers continue to look to parliament for clarity and guidance.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw


Dress Codes and Discrimination – Who wears the trousers?
5 June, 2018

Employers often require employees to comply with dress codes either to ensure that a professional image is maintained or because of specific health and safety requirements.

It is increasingly important for employers to give careful thought to their dress code policies to avoid being exposed to claims of unlawful discrimination which could be on the grounds of age, disability, gender reassignment, sex or race.

To assist employers, the Government Equalities Offices have recently published new guidance on Dress Codes and Discrimination which you can access by clicking here.

The guidance confirms that dress policies for men and women do not have to be identical, however the standards imposed should be equivalent. Employers should avoid gender specific prescriptive requirements for example any requirement that women wear make up, skirts or high heels and ensure that it is not more onerous for one gender than another.

A requirement for female employees to wear high heels, but no footwear requirement for men, is likely to be unlawful on the grounds that it directly discriminates against women by treating them less favourably than men.

The guidance also warns of the risk of requiring employees to dress in a provocative or revealing fashion as this may increase the risk of an employee being vulnerable to sexual harassment.

The guidance reminds employers that they should make reasonable adjustments to dress codes for disabled employees and allow transgender employees to follow a dress code in a way which they feel matches their gender identity. It urges employers to be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee’s work.

Employers should therefore think carefully about the contents of any dress code, including considering the following questions:

  • What are the reasons why the organisation wants to implement a dress code and is there a genuine business requirement for the policy?
  • Do the requirements of the policy apply to all employees equally; for example, to men and to women (bearing in mind that it is not necessary for both sexes to wear the same but there must be equivalent standards)?
  • Are there any health and safety implications?
  • Could the restriction on a particular kind of clothing or jewellery be deemed to be of religious significance?

 

Finally if you are thinking about introducing a new dress code it is advisable to consult your employees before implementing it. This is not a legal requirement but can help flag up issues at the start rather than further down the line.

For more information please contact Camilla Beamish.  For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw


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