Employment Law Roundup – March 20

Welcome article – Coronavirus

Coronavirus (COVID-19) is grabbing the headlines as it spreads over the globe and more cases are diagnosed in the UK. The impact of the virus on employees and business is worrying for employers. Some guidance has been published recently which employers might find helpful.

The government has published guidance for employers and businesses. The guidance gives more information about the virus, its signs and symptoms and how it is spread. It gives detailed advice about how to prevent the spread of infection through good hygiene. Sneezing into tissues or the crook of the arm – not hands – and regular handwashing are the key points here. It would be good practice to send an email to employees reiterating this advice and asking for their cooperation at work. The guidance also covers what to do if you discover an employee is unwell. Find the guidance here.

ACAS has also published some guidance for employers and employees. It gives more practical advice on steps employers can take to help employees reduce the risk of transmission in the workplace. It also tackles some tricky issues such as how to approach absence and sick pay in a variety of circumstances. Find the guidance here.

Public Health England has said that widespread transmission of coronavirus in the UK is now highly likely. Employers should keep up to date on information and advice on the government’s website, here. They publish daily updates at 2pm with the latest advice.

From an employment law perspective, if employees self-isolate (but are not actually sick), whether or not on medical advice, they are probably not entitled to sickpay.  But many employers will want to pay them anyway, to help discourage those who might be infected from coming into the workplace.

Unfair dismissal – criminal charges

The Employment Appeal Tribunal has looked at whether it is fair to dismiss an employee who has been charged with a crime. In Lafferty v Nuffield Health, the employee was a porter at a charity. He had 20 years’ service and a clean disciplinary record. One of his duties was to transport patients who were anaesthetised. He was charged with a serious sexual offence outside of work, which he denied, and released on bail. He was suspended on full pay while the employer investigated. The employer decided that the risk to its reputation if he was found guilty was too great bearing in mind his access to vulnerable patients. They dismissed him with notice.

The employment tribunal found that his dismissal was fair based on ‘some other substantial reason’. The EAT agreed but said each case will be different. In some cases, the risk of reputational damage will justify dismissal before an employee has been convicted of a crime. It was relevant that the employer operated in a sector which had been under intense scrutiny due to employees committing sexual offences. In this case, the employer had conducted a reasonable investigation before deciding to dismiss. They had asked for more information about the charges from the employee and the police. They had also considered suspension on full pay but, with no trial date set, had decided the potential cost would be unreasonable bearing in mind its charity status. The employee’s dismissal was within the range of reasonable responses.

It is important to remember in this case that the employee was dismissed because of potential reputational damage, not because the employer thought he was guilty of an offence. The employee’s job provided the opportunity to commit the kind of offence he was charged with. That won’t always be the case. The EAT gave the example of an employee who is charged with a criminal driving offence but employed in a role which involved no driving. In that case continuing to employ the employee would be unlikely to result in reputational damage.

This case highlights the importance of a reasonable investigation before making any decision to dismiss. In cases where an employee is charged with a crime, that should involve seeking additional information rather than acting solely on the decision to prosecute. Employers must also consider options other than dismissal as part of any decision-making process.

Indirect discrimination

An employer must make reasonable adjustments for a disabled employee if a provision, criterion or practice (PCP) – which is applied to all employees – puts a disabled person at a substantial disadvantage compared to non-disabled people. ‘PCP’ isn’t defined in the Equality Act 2010, but the Statutory Code of Practice says it can include policies, rules, practices and arrangements ‘including one off decisions’.  The Court of Appeal in Ishola v Transport for London has looked at whether a one off decision can be a ‘PCP’ for which an employer must make reasonable adjustments.

The employee went off sick in May 2015 after his complaint against a colleague wasn’t upheld. He was disabled due to depression and migraines. He refused to engage with occupational health or any efforts to bring him back into work. He made numerous complaints about the people involved in managing his absence. He had already been invited to a meeting where dismissal was an option when he raised his final complaint about another manager involved in his sickness management. Although the issue wasn’t formally investigated before his dismissal, it was largely addressed by replacing the manager concerned. The employee was eventually dismissed for incapacity in June 2016.

The employee brought claims in the employment tribunal, including one for failure to make reasonable adjustments. He said that the employer’s requirement that he return to work without a proper investigation of his grievance (which led to his dismissal) was a PCP. He said it would have been a reasonable adjustment to investigate the grievance properly to allow him to return to a discrimination free environment. The Court of Appeal said that some one-off decisions may be PCPs, if they apply or are likely to apply to other people or situations in practice. Others are just stand-alone decisions. In this case, the decision to dismiss the employee without fully investigating the final grievance was a one-off decision. It was not the employer’s usual practice to dismiss employees without investigating grievances.

This is not a case that condones moving to dismissal before resolving relevant grievances appropriately. In this case, the employee had raised numerous complaints or grievances against different members of staff involved in his case. All bar the last one had been resolved (albeit not to the employee’s satisfaction) before the employee’s dismissal. In these exceptional circumstances, moving to dismiss without fully investigating the final complaint was reasonable. Care must always be taken in dismissals involving disabled employees, and any employee who is a serial complainer.

Unfair dismissal – knowledge of employer

The Supreme Court decided last year that knowledge of a manager other than the dismissing officer can be attributed to the employer when establishing the reason for the dismissal (Royal Mail v Jhuti – where the real reason for dismissal, whistleblowing, was hidden from the dismissing officer). The EAT has now looked at whether the knowledge of another manager can be attributed to the employer in deciding whether they acted reasonably in dismissing an employee.

In Uddin v London Borough of Ealing, the employee was dismissed in relation to an allegation of inappropriate sexual behaviour towards a work placement student in a bar. The employee had reported the matter to the police but subsequently withdrawn her complaint. The investigating officer knew that the complaint had been withdrawn but did not tell the dismissing officer about this. Did that take the decision to dismiss outside the range of reasonable responses open to the employer?

The employment tribunal said the dismissal had been fair because the employee could have been fairly dismissed anyway even without the police complaint. The EAT disagreed. The dismissing officer took the police complaint into account. She said that she would have asked more questions had she known the complaint had been withdrawn. The knowledge of the investigating officer was relevant and hidden from the dismissing officer. This made the dismissal unfair. The EAT pointed out that the question of what would have happened had the dismissing officer known about the withdrawal of the police complaint will be relevant to compensation. If the employee would have been dismissed anyway, compensation can potentially be reduced to zero. The original employment tribunal will decide what level of compensation is due.

It doesn’t really matter to employers which part of the legal test is affected when a dismissing officer isn’t given all the relevant information by an investigating officer. The important point is that it matters, both in relation to the reason for dismissal that a tribunal must establish, and the fairness of a dismissal overall. Employers should ensure that all relevant information is given to dismissing officers. This includes facts which come to light after the investigation has apparently finished, if a disciplinary or appeal hearing remains outstanding.

Whistleblowing

Workers are protected from being treated badly by their employer because they have made protected disclosures about malpractice. In Jesudason v Alder Hey Children’s NHS Foundation Trust, the Court of Appeal has looked at whether an employer’s attempts to set the record straight can amount to a detriment.

The employee was a consultant surgeon. He made numerous disclosures to various bodies, including the Trust’s HR department and the Care Quality Commission. He also made inappropriate disclosures to Private Eye magazine. He resigned his post and signed a settlement agreement. He then brought a claim for detriments suffered due to whistleblowing, including detriments after his resignation. He said he had suffered detriment due to letters the Trust had sent to third parties defending its position. The letters said that the employee’s allegations were completely without foundation (when reports had identified concerns) and that the employee’s actions were ‘weakening genuine whistleblowing’.

The employment tribunal and EAT agreed that the letters could not amount to a detriment because the Trust was simply defending its position. The Court of Appeal said they had technically got it wrong. An employee could suffer a detriment if negative comments were made about him in a letter seeking to set the record straight. The employer’s motive is irrelevant if the effect is detrimental to the employee. However, the Court agreed with the tribunal and the EAT on causation. The claim still failed because the detrimental treatment (the letters) was not caused by the employee’s protected disclosures. The reason the Trust had made those detrimental comments had been damage limitation, to reduce the effect of the potentially damaging information the employee had made public, not because he had blown the whistle.

This case shows that an employer might be able to justify making negative comments about an employee when seeking to defend its position, especially when matters have been thrown into the public domain by an employee. Whistleblowing cases can be tricky though and should be handled with care and with the benefit of legal advice.

Age discrimination – compulsory retirement

An employer must be able to justify any compulsory retirement age (CRA) by showing it is a proportionate way of achieving a legitimate business aim. An employment tribunal will look at why the CRA is necessary and appropriate, whether there is any alternative to the CRA (fitness or competency tests for example). They will also look at whether the CRA actually achieves the business aim in question. They will also weigh up the effect of the legitimate aims against their discriminatory impact. In Ewart v University of Oxford, an employment tribunal has looked at whether a University’s compulsory retirement age was objectively justified.

The employee was made to retire at 67 due to a compulsory retirement policy. The employer said there were legitimate business aims including intergenerational fairness and career progression for junior staff, facilitating succession planning and promoting equality and diversity (recent recruits were more diverse than the existing cohort, in particular the older employees). The employee brought claims for unfair dismissal and age discrimination.

The employment tribunal agreed that the employer’s aims were legitimate. However, the aims were not proportionate when weighed up against the discriminatory impact of the compulsory retirement policy. The retirement policy only created 2-4 per cent more vacancies than would have otherwise existed, which was trivial in comparison to the discriminatory effect. In relation to facilitating career progression, senior posts were often filled externally and there was no plan in place for junior career progression. In relation to diversity, the evidence showed that the retirement policy contributed little overall to the University’s efforts to diversify.

Employment tribunal decisions aren’t binding on other courts. Indeed, this decision goes against another tribunal which found in another case that the employer’s retirement policy was justified. At the time of writing, it looks like the University intends to appeal this decision. Whatever happens on appeal, this case shows that it isn’t enough to have legitimate business aims. Employers must show that those aims have enough effect on the ground to justify the discriminatory impact on employees. Employers should consider whether compulsory retirement is necessary in their business. Consider other methods to assess whether employees are fit to continue in work such as fitness or competency tests.

Shared parental pay

You may remember the Court of Appeal decision in Chief Constable of Leicestershire v Hextall last year. The Court of Appeal decided that it was not discriminatory to pay men on shared parental leave less than women on maternity leave. The special treatment women receive in relation to pregnancy and childbirth is a legal exception to the rules on discrimination.

The Supreme Court has now refused the employee’s request to appeal that decision. This means that the Court of Appeal’s decision is now the final word on the issue, which will bring comfort to employers. Employers can choose to enhance maternity pay without enhancing shared parental pay.

National minimum wage (NMW) consultation

In December 2018, the government launched a consultation into whether the NMW rules on salary sacrifice schemes and salaried hours work inadvertently penalised employers. Almost a year later, they have published their response.

Salaried hours work is where an employee is contracted to work basic hours in return for an annual salary paid in weekly or monthly installments. In response to the consultation, employers said they wanted the ability to pay salaried hours work in different payment cycles, such as two weekly or four weekly cycles, rather than weekly or monthly. The government has said it would be helpful to provide this additional flexibility. Employers also said they wanted more freedom to choose their own ‘calculation year’ rather than being bound by a worker’s start date in employment. The government has agreed to do this too, allowing employers to choose their own calculation years and even apply different years to different employees. This will allow both parties to monitor basic hours worked more easily. The government has also agreed to change the rules so that salaried hours workers can receive enhanced rates of pay or additional pay for their basic hours without falling outside of the salaried hours work definition. These changes are due to come into force in April 2020.

The consultation also showed that employers were moving away from salary sacrifice schemes because they cost employers more in order to meet the NMW. Any portion of salary ‘sacrificed’ in exchange for a benefit (pension contributions or childcare vouchers) doesn’t currently count towards the NMW calculation. The government was less flexible in this regard. They have concerns that some schemes don’t get ‘fair value’ in return for salary sacrifice and that workers might be pressurised into agreeing to such arrangements were exceptions to the NMW allowed. Instead the government has agreed to improve guidance, waive some financial penalties in relation to certain NMW breaches (relating to salary sacrifice), provide more support for employers who operate salary sacrifice schemes. They will also provide proactive support for new, small businesses.

A mixed bag for employers here. A relaxation of the rules in relation to salaried workers is welcome. How helpful additional guidance and support from the government will be in relation to salary sacrifice schemes remains to be seen. Read the government’s response here.

Disability discrimination

To satisfy the definition of ‘disabled’ under the Equality Act 2010, an employee must show that they have a physical or mental impairment which has a substantial and long-term effect on their ability to do day to day things. To be long term, the impairment must have either:

  • Lasted for 12 months;
  • Be likely to last for 12 months; or
  • Be likely to last for the rest of the person’s life.

In Tesco v Tennant, the EAT looked at the importance of establishing that an individual is disabled at the time of alleged discriminatory acts. The employee was a checkout manager. She was off sick from September 2016 due to depression. She brought a claim for disability discrimination in September 2017 for alleged discriminatory acts between September 2016 and September 2017. The employment tribunal said she was disabled, because at the time of the hearing her condition had lasted for at least 12 months. The employer appealed, saying that the employee must be disabled at the time of the alleged acts. This meant that the depression must have lasted for at least 12 months before each of the alleged discriminatory acts.

The EAT agreed. The employee had not provided evidence to show that her condition would last for more than 12 months or the rest of her life. The employee could only be disabled from September 2017, 12 months after the depression began. Any acts before this date could not be considered in a discrimination claim.

This case shows how important it is to examine the evidence in disability discrimination cases. Many employees will have medical evidence which says their condition is likely to last for 12 months, meaning they can meet the definition immediately. Identify those whose condition either hasn’t lasted for 12 months yet or hasn’t been established as likely to last for 12 months or the rest of a person’s life. This can knock out whole cases or significant parts of them right off the bat.

And finally…

Is flexible working affecting your employees and their family lives negatively rather than positively?  A recent survey – The 2020 Modern Families Index – says that evening emails and a culture of always being available means jobs have become too big for allotted working hours. The survey, published by the charity Working Families and childcare provider Bright Horizons, talked to more than 3000 parents across the UK.

The survey showed that more than half of parents work flexibly, either in terms of their hours or working from home. However almost half of them say that this has increased their workload, with many feeling they have no choice but to work in the evenings. Almost half also said that the boundaries between work and home have become blurred because of modern methods of communication such as email. Going into work mode in the evenings causes arguments with both children and partners, according to over half of those polled.

Does this mean flexible working isn’t working? Not necessarily, but employers perhaps need to do more to help their employees achieve a work-life balance. The CEO of Working Families, Jane van Zyl, told the Guardian newspaper that flexibility isn’t enough. She urged companies to ensure that jobs are ‘human-sized’ and managers lead by example in terms of their own work life balance. The survey also recommended that employers should take a more strategic approach to job design, considering carefully the tasks involved and the time they will take. It also recommended robust policies on tech to ensure working parents understand that they can and should disconnect in order to achieve a work life balance.