Latent Disability – The Pitfalls Of Not Knowing (Part 1)

20th November 2015

Imagine you are an employer accused of disability discrimination. You will soon become aware that “disability” is defined under the Equality Act as (a) a physical or mental impairment that has (b) a substantial and long term adverse effect on (c) the employee’s ability to carry out normal day to day activities. In many cases, the disability will have been obvious. But what if it was mental rather than physical, and therefore invisible? What if someone who you never suspected to be a disabled person alleges that you have failed to make reasonable adjustments? Are you vulnerable to a claim regardless of your professed lack of knowledge? The quick answer, under s.15(2) Equality Act, is that if you did not know and could not reasonably be expected to know that your employee had a disability, this is a defence. As ever, the devil is in the detail. There may be no statutory duty to enquire about possible or suspected disability, but the Equality & Human Rights Commission’s Employment Code suggests you should do all you reasonably can to find out. Tricky, isn’t it? What should you do about a poor performer who everyone in the office thinks of as unusually eccentric? Should you stay focused on performance issues alone, or ask a few leading questions about disability? What would trigger any legal duty to ask? What about the risk of offending a very private person who had decided to rely on coping strategies? Let’s look at some cases. Starting with…

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Derogatory Facebook comments: dismissal fair?

12th November 2015

In the case of David Smith, the respondent to his employers’ successful Employment Appeal Tribunal appeal in British Waterways Board v Smith, it was indeed. He will no doubt have kicked himself for insulting his supervisors in robust industrial language on his Facebook page, and for failing to convince the disciplinary panel that his Facebook account had been hacked after online stalking. But that, however, is only part of the story. A colleague who was also found to have posted highly offensive Facebook comments escaped with a final written warning. Another whose comments were criticised but not offensive was let off with an oral warning. What tipped the balance? In Mr Smith’s case, his role required him not to drink alcohol when on standby. His Facebook postings also boasted that he had done so, in defiance of the requirement. With his employer thereby left open to condemnation on a public forum, dismissal fell within the range of reasonable responses open to a reasonable employer. It will no doubt have helped greatly that it had a written policy that barred employees from “any action on the internet which might embarrass or discredit British Waterways, including defamation of third parties, for example by posting comments on bulletin boards or chat rooms…” And here’s a twist. When did Mr Smith post the comments? Two years before his dismissal. Did that provide any scope for a plea for leniency? It did not. The lessons? Employers can reap clear benefits from a written social media…

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Autumn Newsletters

28th October 2015

Our autumn newsletters are now available to read on the Newsletters page. The recent Tyco decision, addressing when travelling time will count as working time, is covered in the employment newsletter, along with a further recent tribunal decision (Truman) about associative discrimination – in other words, when the protected characteristic is not the claimant’s, but that of someone associated with the claimant. What about product shapes? Can they count as trade marks? On the commercial side, there is an important decision involving KitKat among this season’s articles. Interested? You’ll find the Employment newsletter here and the Commercial newsletter here.

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Can a limited company claim discrimination? You may be surprised…

28th September 2015

At first sight, it would be all too easy to react to today’s Employment Appeal Tribunal finding in EAD Solicitors LLP & others v Abrams, namely that a limited company can claim discrimination, by asking out loud how a limited company can suffer hurt feelings and whether the law is determined to prove itself an ass once more. But there is more to it. The decision is well reasoned under the Equality Act. In this case, the allegation was of age discrimination, and the limited company was the personal service company of the other claimant Mr Abrams. The company provided Mr Abrams’ services to the LLP, and took his profit share on his behalf. Matters turned sour when the LLP sought to terminate the company’s membership once Mr Abrams’ notional retirement date had been reached. So how did the limited company win through? As the EAT concluded, the Equality Act does not deal with individuals on the basis of their protected characteristics (race, sex, age etc), but identifies discrimination as treatment caused by or related to a protected characteristic. The focus is subtly different from what might be assumed. So on the special facts of this case, where the discriminatory act was still linked to Mr Abrams’ age, there was said to be no reason to fear the opening of the floodgates. The closing comments of Langstaff J are, however, worthy of note. What if a company is shunned commercially because its workforce is primarily composed of protected minorities, or…

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When can travelling time to and from work become working time?

10th September 2015

Do you employ staff without a fixed workplace, whose duties involve attendance at customer sites that vary from day to day – care workers, heating engineers, sales reps and so on? Have you always taken it as read that they will begin their working day at the customer’s site and arrive on time to do so, and will not have any right to claim pay for their travelling time to and from their home address? Were you safe in the assumption that it was never going to occur to them to contend that their daily commute should count as part of their working day, when it would have been absurd for your office based staff to do so? It may be time to think again. Today’s decision of the European Court of Justice in the gloriously named Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL, which will hopefully be abbreviated to Tyco or TIS when cited from now on, has made it clear that for workers without a fixed or habitual place of work, time spent travelling between their homes and the premises of their first and last customer counts as “working time” under the EU’s Working Time Directive. How come? Well, in the ECJ’s view, the journeys of such peripatetic workers are an integral part of their role, and a necessary means of providing their services to their customers. In this particular case, because the employer determined all of the appointment times and their…

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Summer Newsletters

15th July 2015

Our summer newsletters are now available to read on the Newsletters page. Among the new employment issues, one that may be of particular interest is the effect of giving – or indeed receiving – a final written warning that is tainted by bad faith. The significance, of course, is that the outcome of a later disciplinary process will usually be materially influenced by any live written warning. On the commercial side, there is a cautionary tale about the consequences of a commercial contract payment application being submitted six days too early. Half a million pounds’ worth of delayed cashflow is no trivial matter. Interested? You’ll find the Employment newsletter here and the Commercial newsletter here.

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Long Term Sickness Absence: how long will unused annual leave carry over?

10th July 2015

The quick answer, following a recent Employment Appeal Tribunal decision, is 18 months from the end of the leave year in which it is accrued. As ever, a quick answer only invites slow analysis, so let’s look a little closer. In practice, we are talking about the right of an employee returning from long term sickness absence, or dismissed before returning, to seek holiday pay arrears reflecting annual leave not taken during the sickness absence period. It may be fair to conclude that few employees on long term sick leave would think to pick up the phone to HR and book two weeks’ holiday, even if this would bring them two weeks’ worth of holiday pay rather than SSP. So the law steps in and protects the accumulated right to annual leave, should the employee become aware of his rights and decide to take the point. But how far does the principle extend? Mr Plumb, the claimant in Plumb v Duncan Print Group (EAT judgment handed down on 8 July 2015), argued that his entitlement was open ended, because neither his employment contract nor UK law dictated to the contrary. Having been off sick for almost 4 years, he claimed holiday pay for his 2010 to 2012 leave years after his employment terminated in February 2014. The employer refused. What did the EAT decide? After a careful analysis of EU regulations and directives, they concluded that the proper period of carry over was 18 months from the end of the leave year…

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Indirect Discrimination: shaking off the coat tailers

29th June 2015

Indirect discrimination is all about the presence of a “provision, criterion or practice” (PCP) in the workplace that puts individuals with protected characteristics at a disadvantage compared to those without them, where the employer cannot justify the PCP. One way to set about proving the harmful effect of the PCP on groups is to produce a statistical analysis. If that provides grounds to conclude that a group with a common characteristic has been disadvantaged, does the burden then pass to the employer (a) to justify the PCP or (b) to admit liability and hope for a loophole when it comes to remedy? Evidently not, according to the Court of Appeal in Home Office (UK Border Agency) v Essop & others, decided on 22 June 2015. Membership of the disadvantaged group is not sufficient. The claimant must also establish why the PCP disadvantaged him as an individual. This case was all about a Home Office requirement for promotion applicants to pass a Core Skills Assessment. A statistical analysis showed that applicants sharing a black minority ethnic (BME) characteristic, or aged over 35, had a notably lower pass rate. In the Court of Appeal’s view, the statistics were not conclusive on their own. One notable comment: – “But why should a coat tailer, if he can be identified as such, be entitled to succeed?” A coat tailer, in context, would be an individual who had failed the CSA for a reason other than the perceived disadvantage inflicted by the PCP. Such an…

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