We’re still in the month January and the issue of serious disparities in pay between the sexes raises its ugly head once again. I’ve said it before; but I’ll say it again: we’ve had over 40 years of legislation in the UK (first the Equal Pay Act 1970 and now the Equality Act 2010, not to mention EU primary and secondary legislation) which should have put the issue to rest.
The Equality Act 2010 incorporates an equality clause into contracts of employment which means that employers have a duty to ensure that men and women are paid on equal terms for carrying out like work; work rated equivalent; and work of equal value.
It’s hard to believe that the groundbreaking decision of the Court of Justice of the EU in Case 43/75 Defrenne v Sabena (No 2) [1976] ECR 455 was in the 1970s and here we are, entering the second decade of the 21st Century, still talking about the issue of equal pay – or the lack of it.
There is a depressing familiarity to stories in the UK media about the lack of progress regarding this issue. This is surprising because successful equal pay claims can be be very costly in financial terms for employers. In 2019, after Glasgow City Council female employees won their battle for equal pay, there was much speculation about how the employer was going to pay the bill. One of the (seemingly) more dramatic predictions was that the City Council would have to sell Salvador Dali’s world famous painting Christ of St John of the Cross in order to meet its legal obligations to its underpaid female employees. Susan Aitken, the City Council leader, was forced to issue a denial that this was a possibility. When you realise that the estimated value of Dali’s painting starts at £60 million you begin to get an idea of the scale of the problem.
That said, some years ago, Birmingham City Council was forced to sell its share in the National Exhibition Centre in order to meet the (awesome) financial burden of thousands of equal pay claims . The price achieved was £307million – although 3 years later, the asset was sold once more for an eye watering figure of £800 million (allegedly).
Recent research carried out by the English law firm, Slater+Gordon, suggests that women fail to gain pay increases because they are not negotiating with their employers about this issue. Campaigning groups, such as Close the Gap, are firmly of the opinion that the onus should not be placed on women to push for equal pay; rather it should be the responsibility of the State and/or employers to achieve this goal. There has to be real cultural change in society and women need to be valued more if the gender gap is to become a thing of the past.
Links to articles in The Independent about the equal pay research that Slater+Gordon Solicitors carried out can be found below:
And if you remain unconvinced about ingrained gender bias in the corporate world generally, you will find a link below to research carried out by The Independent which demonstrates how many leading tech companies suffer from the lack of women in leadership roles:
We’re barely into 2020 and we seem to be on something of a roll with stories about sex discrimination. Yesterday, I discussed the issue of equal pay.
Only this morning I was flicking through the newspaper and came across another story, this time, concerning pregnancy discrimination.
Helen Larkin was dismissed from her post with the Liz Earle Beauty Company on the grounds of her pregnancy. Her employer was restructuring the company and refused to consider Ms Larkin for two alternative posts within the organisation. This refusal to consider suitable, alternative employment appeared to be motivated by the fact that Ms Larkin would shortly be going off on her period of maternity leave.
This treatment amounted to unlawful direct discrimination in terms of Sections 13 and 18 of the Equality Act 2010. Her dismissal would also be automatically unfair in terms of the Employment Rights Act 1996.
Consequently, Ms Larkin was awarded over £17,000 in compensation. This sum, of course, reflects an element to injury to feelings (the so called Vento Bands or Guidelines). In fact, Ms Larkin was awarded £10,000 in compensation to reflect injury to feelings.
A link to the judgement of the Employment Tribunal can be found below:
A study carried out jointly by the UK Government Department (Business, Innovation and Skills) and the Equality and Human Rights Commission previously discovered that some 54,000 women per year in this country were forced out of their employment for reasons related to pregnancy and/or maternity.
A link to a summary of the research on the website of the Equality and Human Rights Commission can be found below:
Again, as I noted in yesterday’s Blog (New Year, same old story …), we have had anti-discrimination laws in the UK for nearly 45 years and yet we still regularly hear stories about pregnancy and maternity discrimination.
Readers might be interested to learn about the work of a pressure group (Pregnant then screwed) whichcampaigns to end the ‘motherhood penalty’:
Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.
We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports [2020]).
It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.
Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.
The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.
Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.
So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).
In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.
Perhaps Amazon needs to go back to the drawing board …
A link to an article on the BBC News App can be found below:
… well now Jordi Casamitjana can believe … officially. He has just won part of his Employment Tribunal case (Casamitjana v League Against Cruel Sports) which confirms that ethical veganism is a protected philosophical belief in terms of Sections 4 and 10 of the Equality Act 2010.
Please note, however, that the Employment Tribunal is yet to determine whether Mr Casamitjana was dismissed because of these protected beliefs – that is another matter.
A link can be found below to the Preliminary Judgement of the Employment Tribunal on the question of whether ethical veganism is a philosophical belief in terms of the Equality Act 2010:
It has just been announced that the well known UK construction company Balfour Beatty has just had a contract terminated by one of its clients.
The client in question is MI6 or the UK Special Intelligence Service, the equivalent of the CIA and the employer of Britain’s best known (but fictional) spy – James Bond. The Service is based at Vauxhall Cross on the River Thames.
Termination of contract can be a pretty dry area, but mix it in with the world of secret intelligence services and you have a story that will be of interest to a potentially large audience.
Who cares?
The company’s shareholders will almost certainly care about this and a large part of the public will be keenly interested to know the facts behind this development.
What went wrong?
Balfour Beatty had been contracted to refurbish the HQ of MI6. In order to carry out the job, the company had in its possession floor plans of the building. Somehow these plans went missing – although they were later recovered – but too late the damage had been done.
Mindful of the mind boggling ramifications of this huge security breach, the UK Foreign Office, which has overall responsibility for the work of MI6, promptly removed Balfour Beatty from further involvement in the middle of the refurbishment project.
A link to the story as reported in The Financial Times can be found below:
I would assume that the Foreign Office is on pretty safe legal ground when it made the decision to terminate Balfour Beatty’s contract. The loss of highly confidential documents by the company could represent nothing less than a material breach of contract. This arises in situations where one of the parties acts in such a way that it completely undermines the contract. The breach, in other words, is so serious because it goes to the very roots of the contract.
The victim of the breach can then potentially use the remedy of rescission i.e. terminate the agreement. The remedy of damages is also available to the victim.
Rescission is actually a much more common remedy than you otherwise might think. In terms of both the Sale of Goods Act 1979 and the Consumer Rights Act 2015, a buyer may choose to terminate a contract of sale in situations where the trader supplies goods that fail to comply with, for example, the implied duty of satisfactory quality.
In employment contracts, an employer is entitled to dismiss an employee in circumstances where the individual commits an act of gross misconduct (theft, violence, gross negligence or failure to follow lawful orders). The Employment Rights Act 1996 recognises that there will be situations where the employer is entitled to terminate the contract of employment and there will be nothing unfair or wrongful about the dismissal (presuming, of course, that proper disciplinary procedures have been followed).
In the well known Scottish employment law decision of Macariv Celtic Football & Athletic Club [1999] IRLR 787 SC, a football manager had his contract terminated quite legally by his employer owing to the fact that he had repeatedly failed to follow lawful and reasonable orders. This failure by the employee to honour the terms of his contract was nothing less than a material breach of the agreement.
Conversely, an employee may choose to regard the employment contract as terminated in situations where the employer has breached the implied duty of trust and good faith. This could occur where the employee was subjected to bullying and harassment by colleagues and the employer (being aware of this) does nothing meaningful or concrete to deal with this. In the face of the employer’s indifference (or collusion), the employee could regard him/herself as constructively dismissed.
Particularly serious for the employer could be situations where the bullying or harassment are motivated by hostility towards an individual’s protected characteristic in terms of the Equality Act 2010 e.g. age, disability, gender reassignment, race, religion or belief, sex, sexual orientation.
Back to Balfour Beatty: it looks as the company has no one to blame for this mess, but themselves. MI6 or the Foreign Office obviously felt that the loss of sensitive (Top Secret?) documents was such a serious development that there was no choice to terminate the contract with immediate effect.
In a number of previous blogs (Stormy Weather, I’m at the end of my tether! Locking Horns; and Frustration of Contract?), I discussed the issue of termination of contract when unforeseen factors outwith the control of the parties intervene.
It might be the destruction of the subject matter of the contract; death of one of the parties in an agreement involving the provision of personal services; or even particularly bad weather or unforeseen events.
Potentially, these factors may frustrate the contract in the sense that it can no longer be carried out or performed in the manner which the parties originally intended. In such cases of genuine frustration, the contract or agreement is terminated and the parties are discharged from their obligations.
There have been some famous cases over the years with frustration of contract at their heart:
Taylor v Caldwell [1863] EWHC QB J1; 122 ER 309;3 B. & S. 826
Krell v Henry [1903] 2 KB 740
Herne Bay Steam Boat v Hutton [1903] 2 KB 683
Vitol S.A. v Esso Australia Ltd. (The Wise) [1989] 1 Lloyd’s Rep. 451
A contract is not frustrated if it becomes more expensive or difficult to perform or if the alleged frustrating event could have been foreseen (and presumably dealt with) (see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 and Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93).
The Emiliano Sala Affair
This leads me back to a story which I have been following with interest over the last few months: the tragic death of the Argentinian footballer, Emiliano Sala in a plane crash over the English Channel in January 2019.
It will be recalled that Sala’s former Football Club, the French side FC Nantes had just agreed to him transferring to the English Premier League side, Cardiff City FC. The transfer fee was £15 million, but shortly after the accident, Cardiff City claimed that the transfer had not gone through and it had no obligation to pay the first part of this figure. In other words, Sala was never an employee of Cardiff City according to this argument because the paperwork had not been finalised.
In normal circumstances, where a contract involves the provision of personal services (and a contract of employment certainly fits into this category), the death of a new or prospective employee would tend to terminate the agreement. Death is pretty much the ultimate frustrating factor – especially in cases involving unforeseen deaths.
The world of top flight football, however, would seem to be different and does not seem to be bound by the considerations that govern us mere mortals.
FIFA, the governing body, has now spoken and determined that Cardiff City will have to pay the first part of the transfer fee (£5 million in case you’re asking) to FC Nantes. Failure to do so may result in FIFA sanctions being imposed on Cardiff (a signing ban).
Please find a link below to the FIFA press release:
It would seem that FIFA rules transcend events such as death which ordinarily would throw a spanner in the works in the context of an ordinary employment contract situation.
Cardiff City can appeal against the decision of FIFA by going to the Court of Arbitration for Sport and, in October 2019, the Club indicated that it would so:
Ultimately, whatever way this tragic story ends, I can’t help but wonder whether FC Nantes or Cardiff FC had the foresight to insure Sala’s life in the event of untimely and unforeseen death. Sadly, the fact that a young man with a promising future died in a horrible accident seems to have got lost along the way while Nantes and Cardiff polish up their legal arguments.
This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.
The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.
Asda has stated that if employees don’t agree to the new contracts of employment by 2 November 2019, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company Asda is arguing.
What’s the legal position?
Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.
The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.
Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).
The statutory periods are detailed below:
One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks
It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.
Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.
Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.
What if some people still refuse to sign the new contracts after their statutory period of notice has expired?
There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.
Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).
No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.
A link to the story on the Sky News website can be found below:
It has since been reported in the Daily Mirror newspaper that one of Asda’s longer serving employees who was sacked for refusing to accept the new contract is intending to lodge an Employment Tribunal claim.
What has European Union law done for workers in the UK?
This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.
The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.
The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.
It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.
The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.
There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.
The basic rights and protections that the Regulations provide are:
a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
a right for night workers to receive free health assessments (Regulation 7)
a right to 11 hours rest a day (Regulation 10)
a right to a day off each week (Regulation 11)
a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
a right to 5.6 weeks (or 28 days) paid leave per year
Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.
It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.
If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.
Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.
What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.
No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.
Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.
One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.
A link to the story about working conditions in China can be found below:
One of the consistent themes of my blog has concerned an individual’s employment status in the work-place – or the very real difficulties associated with the lack of such status.
Section 230(1) of the Employment Rights Act 1996 defines who is an “employee” in the following terms:
“… an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”
As I have stated on more than one occasion, those who have a contract of service rather than a contract for services tend to be in a much stronger position legally speaking when it comes to a range of employment rights such as:
Paternity and maternity pay/leave
Statutory adoption pay/leave
Consultation rights in redundancy and TUPE situations
Entitlement to redundancy payments
Entitlement to sick pay
Minimum notice periods
Protection against unfair dismissal
The above are just some of the rights that people with employment status potentially can acquire depending on their length (or continuity) of service with their employer.
Those individuals with more insecure working patterns (e.g zero hours and/or casual workers) will almost never be in a situation to acquire such rights because it is almost always impossible for them to build up the necessary period of continuous service with the organisations to which they provide services. Typically, many of these workers are part of what has become known as the “gig economy” where the feature of employment contracts known as mutuality of obligation is absent.
Admittedly, the UK Government has attempted to begin to address the disadvantages facing “gig economy” workers by setting up the Taylor Review (which published its findings in July 2017). The final report made 53 recommendations concerning modern, employment practices:
The desire to extend workers’ rights seems to be something of a trend as, in April 2019, the European Union also ratified a new Directive with the working title Transparent and predictable working conditions in the European Union. This Directive (for the remaining EU 27 member states) will certainly give casual workers greater legal rights, but given the current uncertainty over the UK’s Brexit position, it remains to be seen if this measure will ever be implemented in this country (for more information, see my blog entitled “The gig economy” which was published on 19 April 2019).
One of the most significant new rights that the UK Government is proposing to extend to non-employees is the right to sick pay from day 1 of their service. It is calculated that this reform (if implemented) will benefit some 2 million workers.
A link to how the story was reported by The Independent can be found below:
Although employment law is a matter reserved to the Westminster Parliament, the Scottish Government has established its own Fair Work Convention with the express aim:
“… that, by 2025, people in Scotland will have a world-leading working life where fair work drives success, wellbeing and prosperity for individuals, businesses, organisations and society.”
A link to the Convention’s website can be found below:
An issue which many employers will have to deal with is that of long-term sickness and/or frequent absences of certain employees.
In terms of Section 98(2) of the Employment Rights Act 1996, it is open to employers to argue that a dismissal was fair when they terminated the employment relationship by reason of an individual’s sickness absences. The employer would justify such a dismissal on grounds of capability (meaning “in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”).
This is subject, however, to the requirements laid down in Section 98(4) of the Act as to whether the employer has acted reasonably or unreasonably and also having regard to the “equity and substantial merits of the case”.
I also stress to students and to members of the wider public, that an employer does not have a blank cheque (or an automatic right) to dismiss an employee on the basis of sickness absences. Many employers will rightly argue that they have a business to run and they must monitor sickness absence amongst employees.
A particularly problematic issue is the use by many employers of sickness absence trigger points. This is where employers designate a set number of days (usually within a 12 month period) and affected employees may find themselves being summoned to a meeting which, in reality, is a thinly disguised disciplinary action which could ultimately lead to dismissal on capability grounds.
The problem here for employers is that the use of such trigger points can be entirely arbitrary in nature. In other words, they are blunt instrument which take little or no account of individual personal circumstances.
What if the employee in question has a disability in terms of Section 6 of the Equality Act 2010? In such cases, employers would be well advised to tread extremely carefully when dealing with members of the workforce who have (or might have) the protected characteristic of disability. Additionally, a female employee who is pregnant (and is suffering from short term ill health e.g. morning sickness) may fall foul of the trigger point. Again, caution should be exercised here because a pregnant employee will be entitled to the protection of Section 18 of the Equality Act 2010.
Let’s also discuss employees who are undergoing gender reassignment and, as this involves a prolonged medical process, it may be the case that this will involve a significant amount of absences from work for the person undergoing this process. Section 16 of the Equality Act 2010 makes it very clear that an employer who treats such an individual less favourably by, perhaps, subjecting them to disciplinary action on account of these absences will be acting unlawfully.Let’s also discuss employees who are undergoing gender reassignment.
Indirect discrimination
When applying policies (practices or criteria) to the workforce, employers will have to be very much aware of straying into the perilous territory of the prohibited conduct known as indirect discrimination (Section 19: Equality Act 2010).
The Equality and Human Rights Commission provides guidance on
what constitutes indirect discrimination in its Statutory Code of Practice
on Employment:
Example 1
An employer has a ‘no headwear’ policy for its staff. Unless this policy can be objectively justified, this will be indirect discrimination against Sikh men who wear the turban, Muslim women who wear a headscarf and observant Jewish men who wear a skullcap as manifestations of their religion.
Example 2
Requiring a UK-based qualification, when equivalent qualifications obtained abroad would also meet the requirement for that particular level of knowledge or skill, may lead to indirect discrimination because of race, if the requirement cannot be objectively justified.
The concept of indirect discrimination in Section 19 of the Equality Act applies to all of the protected characteristics with the exception of pregnancy and maternity (which are specifically addressed elsewhere in the Act (Sections 17 and 18)).
A gung ho or insensitive approach by the employer may be very costly in the longer term as regards dealing with sickness absences (especially as an injury to feelings element could be part of an Employment Tribunal award).
A disability, for example, will affect not only the individual’s ability to perform her job, but also her ability to perform normal day-to-day activities. If this is the case, the employer will have a duty to make reasonable adjustments, in terms of Section 20 of the Equality Act 2010 to the employee’s working conditions, in order to aid her return to work.
A failure to consider reasonable adjustments or to dismiss out of hand certain adjustments may constitute disability discrimination in terms of the Act.
Furthermore, it may be extremely ill advised for employers to place employees with disabilities on some sort of attendance monitor system. This could be an example of harassment (Section 28: Equality Act) and, if the employee in question was eventually dismissed, it may represent a breach of Section 15 of the Act i.e. discrimination arising from disability.
Section 15 is an area where many employers may be caught out and, consequently, they may treat a disabled person less favourably. The issue often arises when employers monitor attendance and time-keeping of employees. It may be the case that disabled employees face greater difficulty when it comes to maintaining an acceptable level of attendance and time-keeping and are thus placed at a disadvantage in comparison with their non-disabled colleagues.
Typically, employers will impose sanctions on all employees who do not meet attendance and time-keeping targets and they will doubtless argue that the issue disability has nothing to do with the way in which they treated an individual.
An example from the Equality and
Human Rights Commission’s Statutory Code on Employment makes it very clear the
dangers of such a blanket approach being taken by employers (which could leave
them open to legal action under Section 15):
Example
A disabled worker periodically requires a limited amount of time off work to attend medical appointments related to the disability. The employer has an attendance management policy which results in potential warnings and ultimately dismissal if the worker’s absence exceeds 20 days in any 12-month period. A combination of the worker’s time off for disability-related medical appointments and general time off for sickness results in the worker consistently exceeding the 20 day limit by a few days. The worker receives a series of warnings and is eventually dismissed. This is likely to amount to disability discrimination.
Discrimination arising as a consequence of disability
Some of the pitfalls which employers face when dealing with employees who are disabled and who have accumulated a number of sickness absences which may trigger the organisation’s intervention policy was demonstrated in a case from 2018.
O’Connor, a disabled employee, was disciplined by DL Insurance because she had accumulated 60 days sickness absence during a 12 month period (she had been given a final written warning). Her employer had fallen foul of Section 15 of the Equality Act 2010 because both the Employment Tribunal and the Employment Appeal Tribunal were of the view that disciplinary action to deal with her level of sickness was not a proportionate response given that she was a disabled person within the meaning of the Act. Her employer was aware (and had accepted previously) that O’Connor was a disabled person. Reasonable adjustments (principally flexible arrangements) had been put in place by the employer as per their duty under the Act.
Significantly, the employer had failed to involve an independent occupational health service in the matter before it made the decision to discipline O’Connor AND the manager charged with carrying out disciplinary action had not bothered to obtain a full grasp of the facts of the situation i.e. by going to discuss how what impact the absences were having on O’Connor’s colleagues. In particular, the failure by the employer to involve occupational health services in O’Connor’s case was a breach of the company’s own procedures.
In the employer’s defence, however, the Employment Appeal Tribunal did note that O’Connor had been treated sympathetically in the past and that more latitude had been given to her personally in relation to the number of sickness absences she had accrued. This was not enough and by placing O’Connor under disciplinary sanctions, the employer had subjected her to unlawful. less favourable treatment in that she would not receive contractual sick pay if she was absent from work in the future.
The Employment Appeal Tribunal placed particular emphasis on the fact that the employer had failed to explain how a written warning (with all the implications for O’Connor) would actually lead to an improvement in her attendance at work. It was noted that the employer accepted that O’Connor’s absences were genuine and unavoidable and were caused by her disability.
Dealing with employee sickness absence (whether of a short or long term nature) can be extremely problematic for employers. The blunt instrument approach where arbitrary trigger points are used to monitor and deal with sickness absence can store up problems for employers over the distance. Quite simply, such policies, criteria or practices (PCPs) may have a disproportionately, adverse effect on certain groups of people within the workforce e.g. individuals with disabilities. There is a very real danger for employees that they end up breaching provisions of the Equality Act 2010 and their argument that a capability dismissal was fair will fall foul on deaf ears at any subsequent Employment Tribunal hearing. Proceed with caution might be the best advice when dealing with employees who have poor sickness records.
Seán Crossan's Scots Law 