Report: Employment Law Update - March 2022

Covid update

Covid-19 Response: Living with Covid-19

• The restrictions changed on 24 February so that now:
  • there is no legal requirement to self-isolate following a positive test.
  • fully vaccinated close contacts and those under the age of 18 are no longer required to test daily for 7 days, and there is no requirement for close contacts who are not fully vaccinated to self-isolate.
  • self-isolation support payments have ended
  • routine contact tracing has ended.
    
• From 24^th March, the government will:
  • Remove the COVID-19 provisions within the Statutory Sick Pay and Employment and Support Allowance regulations. Employers will no longer be able to claim back Statutory Sick Pay for their employees’ coronavirus-related absences or self- isolation that occur after 17 March 2022.
  • Employers have until 24 March 2022 to submit any new claims for absence periods up to 17 March 2022, or to amend claims they have already submitted.
  • After then, there is a return to the normal SSP rules, which means employers should revert to paying SSP from the fourth qualifying day their employee is off work regardless of the reason for their sickness absence.

• From 1^st April, the government will:
  • Remove the current guidance on voluntary COVID-status certification in domestic settings and no longer recommend that certain venues use the NHS COVID Pass.
  • Update guidance setting out the ongoing steps that people with COVID-19 should take to minimise contact with other people. This will align with the changes to testing.
  • No longer provide free universal symptomatic and asymptomatic testing for the general public in England.
  • Consolidate guidance to the public and businesses, in line with public health advice.
  • Remove the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments.
  • Replace the existing set of ‘Working Safely’ guidance with new public health guidance.

More firms cut sick pay for unvaccinated staff

• The number of employers following IKEA’s lead and cutting sick pay for unvaccinated staff is growing. Ocado and Next are also cutting sick pay for unvaccinated staff who must self- isolate because of Covid exposure. They are saying unvaccinated workers without mitigating circumstances who have to self-isolate because they have been in close contact with a positive case will only receive statutory sick pay. However, the firms will continue to pay full sick pay to unvaccinated workers if they test positive for the virus.
  
• There are legal risks of adopting a policy of this kind including discrimination claims. That risk arises where unvaccinated staff who are disadvantaged by the policy can point to one of the ‘protected characteristics’ under the Equality Act which applies to them. So, for example, pregnancy, religion, race or, possibly, a philosophical belief against vaccination. In that case the employer would have to objectively justify their policy and that explains why all the companies have been at pains to point out they will be treating every case on its own merits.
  
• Whilst reducing sick pay for unvaccinated employees could encourage the workforce to get vaccinated, doing so could be damaging from an employee relations perspective, particularly given it creates disparity within the workforce.
  
• It could also incentivise employees to be dishonest about the reason for their absence i.e., say that it’s not Covid-19 related and/or attend work whilst they are potentially at risk of infection and pose a risk to others because they cannot afford to stay in isolation or do not want to lose pay putting the health and safety of the wider workforce at risk.

• Further, if unvaccinated employees previously enjoyed company sick pay as one of the benefits of their employment, removing that could be viewed as a breach of trust and confidence.

Businesses warn against end of free Covid tests

• The prime minister's 'Living with Covid' plan must not put the cost and responsibility of testing on employers, business groups have warned.
  
• The British Chambers of Commerce said the government "must not pass on public health decisions on to businesses". "Access to free testing is key to managing workplace sickness and maintaining consumer confidence," its co-executive director, Claire Walker, said. "If the government is to remove this, companies must still be able to access tests on a cost- effective basis," she added.
  
• Matthew Fell, a policy director at the Confederation of British Industry (CBI) also said that free testing benefits businesses. "While free testing cannot continue forever, there is a balance to be struck between confidence building and cost-cutting. "Mass lateral flow testing has kept our economy open and firms continue to believe the economic benefits far outweigh the costs."

Case law update

Holiday Pay:

Can a worker carry over leave that has been taken, but not paid, because an employer did not recognise they were a worker?

Yes, held the Court of Appeal in Smith v Pimlico Plumbers Ltd.

Background

Mr Smith was a plumbing and heating engineer who worked for Pimlico Plumbers from August 2005 to May 2011. Throughout that period, Pimlico maintained that Mr Smith was a self- employed contractor with no entitlement to paid annual leave. Mr Smith took periods of unpaid leave throughout his time at Pimlico. Following a dispute, the relationship came to an end in May 2011.

Mr Smith’s contract described him as "an independent contractor of the Company, in business on your own account".

Mr Smith brought a claim for unpaid holiday. Status was dealt with as a preliminary issue and he successfully argued that he was a worker in the employment tribunal; a decision that was upheld on appeal to the Supreme Court. Having succeeded in the status argument, Mr Smith sought repayment of the 4 weeks' leave required by the Working Time Directive carried over each year until he stopped working for Pimlico Plumbers.

Mr Smith had taken leave during his time working for Pimlico Plumbers, he just hadn’t received payment for it.

Decision

The Tribunal and the EAT rejected his claim and he appealed to the Court of Appeal. They said his claim was out of time and did not apply King v Sash Windows (which would have meant time ran from the termination date not the date of the holiday) because they said King applied only when leave had not been taken. In King, the Claimant had not taken leave as it was not going to be paid and he was able to argue for payment of all of this (including carried over from previous years) when his engagement was terminated.

The Court of Appeal disagreed and upheld Mr Smith’s claim. It said the taking of unpaid leave could not discharge the employer’s obligation to provide paid leave. The employer’s approach had prevented Mr Smith from exercising the right (to paid leave) throughout his contract. The right had accumulated and crystallised upon termination of his contract. The tribunal had been wrong to hold that King did not apply to the claim, and wrong to hold that the claim was out of time, since it had been brought within three months of termination.

Comment

The decision makes clear that the principles in King extend to workers who have taken annual leave but have not been paid for it. Claims for payment in respect of both untaken and taken leave that is unpaid will therefore accrue throughout a worker’s engagement until he or she is afforded the opportunity to take such leave and will, unless afforded before then, crystallise on termination.

Termination and reengagement, ‘Fire and rehire’:

USDAW & others v Tesco Stores Limited

Background

In 2007-2009 Tesco agreed to pay staff ’Retained Pay’ during a reorganisation and relocation of its staff working in distribution centres to avoid losing all of its staff. The Retained Pay was a permanent change to the terms and conditions of Tesco staff impacted by the reorganisation.

Then in January 2021 Tesco sought to sought to remove Retained Pay and offered staff the choice between a lump sum of 18 months’ Retained Pay or being fired and rehired on the new terms. In response, USDAW applied to the High Court for the following:

• Declaration: A declaration that affected employees’ contracts were subject to an implied term preventing Tesco from exercising the right to terminate for the purpose of removing the right to Retained Pay.
• Injunction: An injunction preventing Tesco from terminating the contracts.

Decision

The High Court found in favour of USDAW and granted relief on both points. There was an implied term that the staff could not be fired and then rehired to remove the Retained Pay, as the Retained Pay had been promised in language that clearly expressed its permanency. The injunction was granted as damages would not be an adequate remedy and so Tesco was prevented from commencing the fire and rehire.

Comment

The case represents a big shift in the law but turned on the ‘extreme’ facts of the case. 2022 will certainly not be the year that the practice of ‘fire and rehire’ comes to an end. However, in light of the judgment and the ACAS advice, it is clear the tactic must remain a last resort.

It is essential that there is a robust commercial reason for why the change is required and this should be communicated transparently to affected employees from the outset.

Communication and caution are key when dealing with any change to employee terms. An effective consultation process is more likely to result in a positive solution. Mutual agreement between the staff and the employer to change the terms and conditions will always be the safest option.

To be effective, consultation should be a means of attempting to find an agreement and so compromise may be necessary on both sides.

Vexatious Grievances

Can an Employee be dismissed for bringing vexatious grievances? Yes, Held the EAT in Hope v British Medical Association

Background

Mr Hope, was a senior policy adviser at the BMA. The BMA’s Director of Policy, Mr Jethwa, accused the claimant of being “unprofessional and dismissive” in an email to one of his superiors, Ms Dunn. The claimant raised a grievance, seeking a “clear indication” that the BMA did not stand by Mr Jethwa’s view. The grievance was not upheld but his appeal was partly successful. The appeal outcome letter expressed disappointment that the claimant had not taken up the offer of a meeting with Mr Jethwa and that the management time taken up with this issue had been “disproportionate”, and directed that the claimant should now meet with Mr Jethwa to discuss the matter and ensure effective working in the future.

The claimant later complained about not being invited to meetings by senior management (including Ms Dunn), and questioned whether this was in response to his raising of the earlier grievance. He complained numerous times over the course of several months, and asked to discuss the matter with his manager, Mr McAlonan. Informal discussions took place but did not resolve the issue.

When asked if he wanted to pursue the matter formally, the claimant replied that he did not wish to do so at that time but wanted to retain the ability to do so. The claimant was then given a deadline to decide whether to proceed to the formal grievance stage or withdraw. He then submitted a further grievance relating to this “arbitrary deadline”, and yet another grievance about Ms Dunn not inviting him to a meeting. By this stage, Ms Dunn was starting to feel bullied by the claimant.

Mr Jethwa called a meeting, at which the claimant complained that it was inappropriate for Mr Jethwa to get involved as he wanted the grievances dealt with informally by Mr McAlonan. Mr Jethwa responded that Mr McAlonan would not be able to resolve the issue on his own, as it concerned more senior management. He offered the claimant a meeting with Ms Dunn but the claimant declined. Mr Jethwa told the claimant if he continued using the grievance procedure in this way it may be treated as a disciplinary issue. The claimant wrote to the Chair of the BMA to complain about Mr Jethwa’s threat. Mr Jethwa again offered the claimant a meeting with Ms Dunn and said if the matter could not be resolved informally it would proceed to a formal grievance hearing.

The claimant then raised another grievance with Mr McAlonan, about Mr Jethwa’s threat of
disciplinary action.

The claimant was invited to a formal grievance meeting, which took place in his absence as he refused to attend. The chair of the grievance meeting concluded that the claimant’s behaviour in insisting on keeping the grievance informal, and in refusing to attend the meeting, was frivolous and vexatious, and that his repeated instigation of grievances without following them through was an abuse of process. His grievances were dismissed.

The claimant was then put into a disciplinary process chaired by external counsel. This resulted in his dismissal for gross misconduct, namely bringing “frivolous and vexatious” grievances and abuse of the grievance process. He brought an unfair dismissal claim (but not a wrongful dismissal claim as he had been paid in lieu of notice).

Decision

An employment tribunal held that the dismissal was fair. The reason for dismissal was the claimant’s conduct, which included persisting in making multiple informal grievances; being unwilling to progress them formally or drop them; seeking informal resolution through his line manager when the grievances were about more senior management; and refusing to attend meetings including the formal grievance meeting.

The claimant appealed to the EAT. He argued that the Tribunal had not properly considered whether his behaviour met the definition of gross misconduct.

The EAT set out the analysis for a conduct dismissal, i.e.

• The employer’s genuine belief in the misconduct.
• The employer reaching that belief on reasonable grounds.
• The employer conducting a reasonable investigation.
• Whether dismissal was within the range of reasonable responses

There was no requirement to determine whether the conduct amounted to “gross misconduct”. The statutory question is whether the employer acted reasonably or unreasonably in treating that reason as sufficient to dismiss.

The claim in this case was not one of wrongful dismissal and the employer had not sought to rely on any contractually-stipulated act as amounting to gross misconduct. Accordingly, no contractual analysis had been necessary.

The EAT concluded that the claimant had repeatedly raised grievances that were not resolved at the informal stage. However, instead of pursuing them to the next stage, he had sought to keep the grievances alive without actively pursuing them. He had been scared that pursuing the formal stage would mean the process would be “closed off”. The EAT noted that the purpose of a grievance procedure was to resolve concerns, not to act as a repository for complaints that could be left unresolved and resurrected at any time at the employee’s behest. The employer could not be expected to leave concerns unresolved for unlimited duration, as that would destroy its ability to address legitimate concerns promptly, and to ensure the wellbeing of both the employee raising the grievance and of those who might be the subject of it.

It held that it was clearly permissible for the tribunal to consider that the employer had acted within the range of reasonable responses in regarding repeated attempts to subvert that purpose as vexatious.

Comment

It is generally accepted that a dismissal for conduct reasons without any formal warnings will only be fair if the conduct amounts to gross misconduct. The Acas Code of Practice on Disciplinary and Grievance Procedures states, at paragraph 23:

”Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.”

This decision has cast doubt on the simplicity of this statement in the Acas Code. Whether the conduct is so serious as to meet the definition of “gross misconduct” (which depends on whether the conduct is a “wilful repudiation” of the express or implied terms of the contract, or in some cases, “gross negligence”) will be a relevant consideration in an unfair dismissal case. However, it is not necessarily determinative of the statutory question, in section 98 of the ERA 1996, as to whether the employer acted fairly in treating the employee’s conduct as a sufficient reason to dismiss in all the circumstances.

This case is also interesting for the EAT President’s view of the legitimate purpose of grievance procedures. They are not a “repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee”. In other words, employees cannot insist on keeping unresolved grievances in limbo. The decision suggests that, where a grievance has not been resolved informally, it may be open to the employer, in fairness to all parties concerned, to insist that the employee either withdraw it or cooperate in pursuing it formally to its conclusion. Repeated abuse of the grievance process may, depending on the circumstances, be seen as misconduct.

However, this is not to say that employers should necessarily adopt such a binary approach in all cases. It is not uncommon for informal complaints to be made to HR where there has, for example, been low-level bullying or harassment, and the victim wants to bring this to the employer’s attention but not (yet) treat it as a formal grievance. Employers should still retain the ability to handle such complaints in the manner they consider most appropriate in the circumstances.

Menopause at work: difficulties with symptoms

Background

In a recent case, Rooney v Leicester City Council, the Employment Appeals Tribunal (EAT) held that an employment tribunal had erred in striking out the claimant’s disability and sex discrimination, harassment and victimisation claims at a preliminary hearing.

The claimant, Ms Rooney, had made claims of constructive unfair dismissal, sex discrimination and disability discrimination due to her severe menopausal symptoms. In addition, she had brought claims for non-payment of holiday pay, outstanding expenses and unpaid overtime. Ms Rooney’s solicitors had incorrectly stated in the claim that Ms Rooney was not claiming that she had made a protected disclosure and that she accepted that her work-related stress and menopause symptoms did not amount to a disability under the Equality Act 2010. She was unaware of this and therefore applied to amend her original claim to include protected disclosure detriment and disability discrimination.

Decision

At a preliminary hearing, the employment tribunal held that Ms Rooney was not suffering from a disability in relation to her menopause symptoms, anxiety and depression, and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation. Ms Rooney's sex discrimination claim was struck out for having no reasonable prospects of success.

Ms Rooney appealed. The EAT held that the tribunal had erred in law in deciding that Ms Rooney was not disabled at the relevant time. Ms Rooney had given evidence regarding her menopause symptoms and the effect that they were having on her day-to-day activities (both physical and mental). In addition, she had been suffering from those symptoms for over 12 months at the time of her resignation. Her appeals were allowed and the claims were remitted to an employment tribunal for a decision.

Comment

This case is an example of the challenges faced by menopausal women in the workplace in showing that their symptoms amount to a disability. Following an inquiry by the Women and Equalities Committee, it is expected that there will be recommendations to amend legislation further to adequately protect menopausal women from discrimination at work.
 
Removal of confidential documents for legal advice

Is a whistleblower entitled to remove confidential legal documents from their employer for the purpose of taking legal advice?

It seems not, held the High Court during an interim injunction application in Nissan v Passi. Background
Mr Passi had taken, and refused to return/delete, over 100 sensitive and confidential documents belonging to his ex-employer. He said he had taken them for the purpose of seeking legal advice and wanted to retain them because he lacked confidence that his ex-employer would disclose them in his pending whistleblowing litigation.

Decision

The High Court held that an interim injunction should be granted for return and deletion of those documents. The ex-employee had no proprietary interest in the documents, whereas the ex-employer did. There was no justification for allowing the ex-employee to ‘pre-empt’ what might happen during disclosure on the assumption the employer would not comply with its obligations.

Comments

Many employment contracts contain clauses which require employees to return / delete confidential information and documents when they leave. However, for employers to be certain employees have actually complied with that requirement and haven’t retained information on the misunderstanding that they are entitled to, it can be useful to remind them of this obligation when they leave. It can sometimes also be useful (particularly where there is a dispute or concern about confidential information) to ask the employee to sign confirming everything has been returned or deleted.

Discrimination Refresher

Protected Characteristics

The Equality Act 2010 is concerned with discrimination in respect of the following protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Types of discrimination

There are various types of discrimination set out in Act that apply to most (and in some cases all) of the protected characteristics. The main types are:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation

Direct discrimination

• Direct discrimination occurs where "because of a protected characteristic, A treats B less favourably than A treats or would treat others"
• The key points to note about direct discrimination are:
• An employee claiming direct discrimination should show that they have been treated less favourably than a real or hypothetical comparator whose circumstances (other than the existence of the protected characteristic) are not materially different to their own. The exception to this is pregnancy or maternity discrimination where, formal comparators are not required.
• The less favourable treatment must be because of a protected characteristic. This requires the tribunal to consider the reason why the claimant was treated less favourably: what was the employer's conscious or subconscious reason for the treatment?
• The discrimination need not be because of B's (the victim's) protected characteristic, except in marriage and civil partnership cases. Therefore, less favourable treatment because of an employee's association with someone who has a protected characteristic is covered. For example, an employee without a disability employee could bring a direct disability discrimination claim where they have been treated less favourably because they have a disabled child.
• An employee who is wrongly perceived to have a protected characteristic (other than marriage or civil partnership) will be protected against any less favourable treatment they receive for that reason. For example, an employee of Asian origin might have a direct religious discrimination claim where they have been treated less favourably because of the employer's mistaken belief that they are Muslim.
• It is not direct discrimination to treat a disabled person more favourably than a person who is not disabled, or to afford women special treatment in connection with pregnancy or childbirth.
• Other than in some age discrimination cases, direct discrimination cannot be objectively justified.

Indirect discrimination

Indirect discrimination is concerned with acts, decisions or policies (broadly speaking) which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.

The statutory definition of indirect discrimination states that A discriminates against B where:

• A applies to B a provision, criterion or practice (PCP).
• B has a protected characteristic.
• A also applies (or would apply) that PCP to persons who do not share B's protected characteristic.
• The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others.
• The PCP puts or would put B to that disadvantage.
• A cannot show the PCP to be a proportionate means of achieving a legitimate aim.

A classic example is an employer requiring an employee to work full-time. This requirement could disadvantage women as a group, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part time. Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement could be indirectly discriminatory against a woman with childcare responsibilities.

The key points to note about indirect discrimination in employment under are:

• An indirect discrimination claim must point to a PCP applied by the employer. "PCP" has a fairly wide meaning: an employer's action can be challenged in an indirect discrimination context even where there is no formal policy in place.
• Indirect discrimination is "group based": the PCP must put persons who share a protected characteristic at a particular disadvantage.
• The PCP that puts (or would put) members of the protected group at a "particular disadvantage" must also put (or would put) the claimant to that disadvantage.
• An employer will avoid liability for indirect discrimination if it can demonstrate that the PCP that puts, or would put, the claimant to a disadvantage, is objectively justified; that is, that the PCP is a "proportionate means of achieving a legitimate aim".
• The wording of the definition in the Act requires B to both personally suffer the disadvantage and to have the protected characteristic in question for indirect discrimination to be established.
• Indirect discrimination applies to all the protected characteristics, apart from pregnancy and maternity. However, indirect sex discrimination may apply in pregnancy and maternity situations.

Harassment

There are three definitions of harassment:

• The general definition of harassment "related to" a protected characteristic, which applies to all protected characteristics (other than maternity and civil partnership, and pregnancy or maternity).
• Conduct of a sexual nature
• Less favourable treatment because of an employee's rejection of or submission to harassment of a sexual nature or harassment related to sex or gender reassignment.

General definition of harassment

A harasses B if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

• Violating B's dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct shall be regarded as having the required effect, the following must be taken into account:

• B's perception.
• The other circumstances of the case.
• Whether it is reasonable for the conduct to have that effect.

The key points to note about the general harassment test are:

• A one-off incident can amount to harassment: B need not have made A aware that the conduct was unwanted.
• As with direct discrimination, the legislation protects an employee against harassment based on someone else's protected characteristic (associative harassment) or based on the perception that the employee has a protected characteristic.
• To amount to harassment, conduct must have the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Where B claims that the conduct had this effect (although this was not the conduct's purpose), the tribunal must consider whether it was reasonable for the conduct to have that effect. This avoids liability arising where B is "hypersensitive".

Conduct of a sexual nature

A harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above.

Rejection of or submission to harassment

A harasses B if:

• A or another person engages in unwanted conduct that is of a sexual nature or that relates to gender reassignment or sex.
• The conduct has the purpose or effect referred to General definition of harassment.
• Because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

Victimisation

The provisions on victimisation protect employees who do (or might do) protected acts such as bringing discrimination claims, complaining about harassment, or becoming involved in another employee's discrimination complaint. Victimisation is usually alleged to have been committed by an employer that is already the subject of a discrimination complaint by a current or former employee, but this need not always be the case. For example, a prospective new employer can be liable for victimisation if it refuses to employ someone who has given evidence against a previous employer in a discrimination case.

Victimisation occurs where A subjects B to a detriment because either:

• B has done a protected act.
• A believes that B has done, or may do, a protected act.

Protected acts

The following protected acts are listed:

• Bringing discrimination proceedings
• Giving evidence or information in connection with discrimination proceedings, regardless of who brought those proceedings
• Doing any other thing for the purposes of or in connection with the Equality Act 2010
• Alleging (whether expressly or otherwise) that A or another person has contravened the Equality Act
• Bringing proceedings under "a previous enactment" (that is, under the outgoing discrimination legislation).
• Giving evidence or information in connection with a previous enactment.
• Doing any other thing for the purposes of or in connection with a previous enactment.
• Alleging (whether expressly or otherwise) that another person has contravened a previous enactment.

The key points to note about victimisation are as follows:

• An employer victimises an employee if it subjects the employee to a detriment because the employee has done, or might do, a protected act.
• Victimisation does not require a claimant to show "less favourable treatment" with reference to a real or hypothetical comparator. However, the central question of why A has subjected B to a detriment will more often than not involve a consideration of how A treats or would treat other people.

Definition of disability

An individual is considered disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal day to day activities.

• ‘Substantial’ is more than minor or trivia.
• ‘Long-term’ means 12 months or more.

Reasonable adjustments

A 'reasonable adjustment' is a change made to remove or reduce a disadvantage related to:

• an employee's disability when doing their job
• a job applicant's disability when applying for a job

A reasonable adjustment could involve making changes to:

• the workplace
• equipment or services provided, for example an appropriate keyboard for someone with arthritis
• the role / working arrangements

When an employer must consider reasonable adjustments

By law, an employer must consider making reasonable adjustments when:

• they know, or could be expected to know, an employee or job applicant has a disability
• an employee or job applicant with a disability asks for adjustment
• an employee with a disability is having difficulty with any part of their job
• an employee's absence record, sickness record or delay in returning to work is because of or linked to their disability

The employer must make the changes if they're reasonable.

What is reasonable

What's 'reasonable' will depend on each situation. The employer needs to consider carefully if the adjustment:

• will remove or reduce the disadvantage for the person with the disability
• is practical to make
• is affordable by the employer or business
• could harm the health and safety of others

Discrimination by Association

As detailed above, the definition of direct discrimination makes no reference to the protected characteristic of any particular person:

“A person (A) discriminated against another (B) if, because of a protected characteristic, A treats B less favourably”.

Therefore, the person B does not need to personally possess the protected characteristic but it could be possessed by someone that person B has an association with.

The association with the other person need not be a permanent one. The Equality and Human Rights Commission’s Employment Code gives several examples where the person B is the parent, child, partner, carer or friend of someone with a protected characteristic.

Some examples:

1. An employee is teased because of their relationship with someone who is of a particular race or religion.
2. An employee helps set up an informal staff network for disabled workers, but is not disabled themselves, and the employee is then not shortlisted for a promotion because of this – this could amount to less favourable treatment because of disability.

Examples of Tribunal decisions on direct discrimination by association are:

Truman v Bibby Distribution Ltd ET

The Liverpool Employment Tribunal found that the reason for Mr Truman’s dismissal from the role of Operations Manager was that he had informed Bibby Distribution Ltd that he would need to play a greater role in caring for his disabled daughter, who suffered from cystic fibrosis. The Tribunal held that an employee in the same position as Mr Truman but who did not have a disabled daughter to look after would not have been treated in the same way.

The Tribunal found that Bibby Distribution Ltd’s explanation that Mr Truman’s performance had dropped and that his ‘heart wasn’t in it’ did not hold water. The Tribunal also noted that the day after Mr Truman was dismissed, he would have qualified for generous leave provisions under the company’s family leave policy on account of his daughter’s disability. Mr Truman’s dismissal was because of his daughter’s disability and therefore constituted direct discrimination contrary to section 13 of the Equality Act.

Gyenes v Highland Welcome (UK) Ltd t/a The Star Hotel

Mrs Gyenes worked as a waitress at the employer’s hotel. Her husband, Mr Gyenes, was employed as a kitchen porter. They lived in a room at the hotel for which they paid £15 each per week.

In early October 2012, Mrs Gyenes told her manager that she was pregnant. In mid- October, the manager approached Mrs Gyenes and asked her what plans she and her husband had, as they could not raise a baby in a hotel room. Mrs Gyenes told her that they were intending to look for alternative accommodation.

On 22 October, Mr and Mrs Gyenes were called to separate meetings and informed that they were dismissed with one week’s notice. A letter was sent the following day, confirming that their employment was terminated due to ‘lack of work’. No other employees were dismissed, and no redundancy payments were made.

Mr and Mrs Gyenes brought various claims before an employment tribunal, including a claim by Mrs Gyenes under section 18 for discrimination on grounds of pregnancy and a claim by Mr Gyenes for associative sex discrimination under section 13 on the basis that he was dismissed because of his wife’s pregnancy.

he Inverness Employment Tribunal found that the wording of section 13 was wide enough to cover a claim of direct sex discrimination because of association with a pregnant woman. It also noted that this view was shared by the EHRC Employment Code (para 8.16).

The Tribunal considered how a comparator would have been treated in the same (or not materially different) circumstances. It concluded that a hypothetical comparator (a kitchen porter employed at the hotel who was not associated with a pregnant woman) would not have been dismissed.

Mr Gyenes’ claim under section 13 succeeded and he was awarded £11,000 for injury to feelings
(£10,000 plus interest, same as his wife).
 
A detailed above, Indirect discrimination applies where person B not only personally suffers the disadvantage in question, but also personally possess the relevant characteristic

“(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if-
(a) A applies, or would apply, to it persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

This suggests a claimant would not be able to rely on a disadvantage suffered because of his or her ‘association’ with another person who has that protected characteristic.

Follows v Nationwide Building Society – recent ET case

Facts: The claimant was employed by the respondent from 2011 as a Senior Lending Manager (SLM) until her dismissal on the purported ground of redundancy in 2018. The claimant’s contract was a ‘home working contract’, although the claimant did attend the office weekly, sometimes for several days in a week. The claimant had to work from home because of her caring responsibilities for her elderly and disabled mother.

There was a redundancy exercise in 2016 during which the claimant was not selected for redundancy. She said she was told that her role would be safe for the foreseeable future, that homeworking contracts would continue, and that her performance as a homeworker was “proven”.

In 2017, a second redundancy exercise commenced. A decision was taken to reduce the number of SLMs from 12 to 8 and that all SLMs would need to be based in the office to undertake the role. This was based on the work becoming more transactional and there was a greater need for staff supervision by SLMs.

In the initial redundancy consultation, 6 SLMs expressed a preference to leave. Mrs Follows did not volunteer for redundancy. Many of the volunteers were told that the Respondent could not accommodate all of them and were asked to stay. The Claimant was dismissed as redundant.

She brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.

Decision: The ET upheld the claims of unfair dismissal, indirect associative discrimination on the grounds of Mrs Follows' mother's disability, and indirect sex discrimination. The claims of direct disability discrimination by association and indirect age discrimination failed.

In relation to the claim of direct discrimination by association, the claim failed because the Tribunal concluded the reason for the treatment was the homeworker contract. The treatment was not because of her caring responsibilities / association with a disabled person but her status
/ contract type.
 
In relation to her indirect claim, the Tribunal considered the fact that the legislation appeared to suggest such discrimination was only possible if it related to the employee’s own characteristics. However, it considered a previous finding of the ECJ and concluded that indirect discrimination by association was possible.

In considering the specific facts in the case, the Tribunal concluded the requirement that SLMs could no longer work at home on a full-time basis was a provision criteria or practice which disadvantaged carers for disabled people. Such carers are less likely to be able to work in an office based arrangement than non-carers. As such, the requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association with her mother's disability as her principal carer.

The Tribunal did consider whether Nationwide could justify the discrimination as a proportionate means of achieving a legitimate aim. However, the Tribunal was not satisfied with the arguments about the requirement for on-site managerial support and even if that was a legitimate aim, said the dismissal was not proportionate, particularly as Nationwide appear to have ignored Mrs Fellows comments about her ability to carry out the role from home, her attendance at the office 3 days per week or her history of excellent supervisory work.

Takeaways: While this judgment is not binding, it is useful to see how the Tribunal approached the question of indirect discrimination by association.

It is certainly worth employers taking into account the wider personal circumstances of employees when making decisions and not limiting considerations to the individuals’ own characteristics. In addition, where decisions have to be made which may disadvantage people, employers should always give proper consideration to the justification argument and whether their aim could be achieved in a less discriminatory way.

Harassment by association

The wording of the Equality Act is wide enough to permit claims of harassment by association:

“A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B”.

An example in the Tribunal of harassment by association is Bonehill v Commercial Body Fittings Ltd

Mr Bonehill’s wife had lung cancer. His manager was willing to allow him to take time off work to accompany her to hospital appointments. Mr Bonehill’s wife was due to attend an appointment on 16 March in the afternoon.

Mr Bonehill agreed to go into work in the morning to help as two drivers were off. However, the appointment was brought forward to the morning and when Mr Bonehill phoned to explain that he would not be able to come in, his manager said, “we’re trying to run a fucking business”.
 
Mr Bonehill was very upset and, although his manager apologised unreservedly, he resigned. A
tribunal upheld his claim of harassment related to his wife’s disability.

Victimisation by association

The wording of the Equality Act indicates that the protection under this section only covers those who have themselves done, or were intending to do, a protected act.

However, in Thompson v London Central Bus Co Ltd the Tribunal came to a different conclusion in that victimisation by association would be covered.

Mr Thompson was a bus driver who had been dismissed on grounds of misconduct and subsequently reinstated. He claimed that disciplinary proceedings were initiated immediately following him having advised London Central Bus Company that he had overheard a conversation in which other employees alleged that management were in breach of their obligations under the Equality Act. He claimed that he was “associated” in the mind of his employer with the protected acts of the other employees and was subjected to a detriment as a result.

At a preliminary hearing, a tribunal held that Mr Thompson’s claim for associative victimisation could proceed. It concluded the legislation should be read as simply “because of a protected act”. This would allow claimants to bring victimisation claims not only in reliance on their own protected acts but also in reliance on the protected acts of others.

Discrimination by Perception

Direct discrimination by perception

Discrimination by perception is discrimination because of a person’s perceived characteristic. Some examples given by the Equality and Human Rights Commission Code:
1.    Where an employer rejects a job application form from a white woman whom it wrongly thinks is black because the applicant has an African-sounding name.

2.    where an employer rejects a masculine-looking female job applicant who performs best at interview because, due to her appearance, the employer wrongly believes she is a transsexual. In this situation, the woman would have a claim for direct discrimination because of perceived gender reassignment, even though she is not in fact transsexual

Perception of disability

There is currently considerable uncertainty about how the prohibition on discrimination by perception fits with the complex statutory definition of disability. Several cases have progressed through the courts, with varying outcomes.

However, the Court of Appeal in Chief Constable of Norfolk v Coffey held to perceive a disability, the alleged discriminator, needs to believe all elements of the definition are met. So
 
if someone believed an employee had a condition which affected their ability to do day to day activities and thought this impact was likely to be (or had been) long term, decisions made because of that perception could be discriminatory even if the employee’s health condition was not in fact a disability.

Harassment by perception

There is no requirement for victims of harassment to possess the protected characteristic themselves in order for a claim to succeed. The EHRC Employment Code gives the example of a Sikh worker who wears a turban to work. His manager wrongly assumes he is Muslim and subjects him to Islamaphobic abuse. In these circumstances the worker could have a claim for harassment related to religion or belief because of his manager’s perception of his religion.