Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that need to be considered when instructing a solicitor.
Anna Denton-Jones
Refreshing Law
Category: Employment Rights Act 1996
Whilst many will have looked at the behaviour of P&O and criticised them and they are undoubtedly at the extreme end of the spectrum, it has caused me to reflect on the extent to which all organisations from time to time “take a view” about legal risk and to some extent, price that into the decision-making process. I defy anyone in HR to say that they have never done this.
What I think the reaction demonstrates is how far we are moving forward and that ESG is becoming mainstream, with the debate and the discussion about P&O showing that organisations by and large ‘get’ the idea that it’s more than just about legal compliance but treating people fairly and with dignity as well as ensuring the right image for the organisation, in terms of its values is as important, given what can happen with social media.
The Government has clearly been on the backfoot — literally in the days leading up to P&O Friday, following a private members bill, attempting to tackle so called fire and re-hire practices, the Minister stood up in parliament and confirmed that the government had no intention of making any changes in this arena. Fast-forward a couple of weeks and now hasty announcements around a number of steps that are going to be taken in the maritime area to ensure National Minimum Wage etc.
The relevant issue for everyone is in relation to what they have said about a new statutory code on ‘fire and re-hire’ tactics which will be produced. It sounds as though this will be putting what Acas already advise onto a statutory footing, in the same way as we used to with the Disciplinary and Grievance Procedures. We are already used to Tribunals and Courts taking the Code into account when considering cases of unfair dismissal and them having the power to uplift the award that is made to any successful employee’s compensation by up to 25% where there has been an unreasonable failure to follow that Code. That is the model that is going to apply here.
At this stage we don’t have the actual Code but I would imagine that it will be following the guidance that is already there to consult with staff, taking into account the background legal position on this issue. Indeed the 11th November 2021 advice published by Acas suggests employers should fully consult their workforces and make every effort to reach agreement on any contract changes, noting that fire and re-hire is an extreme step that can damage staff morale, trust, productivity and working relations. So in effect this is just giving the Acas guidance statutory force. Currently there has been no confirmation of when exactly this will happen.
On another note it looks like the insolvency service has been tasked with considering the circumstances around the CEO of P&O’s failure to lodge the HR1 form which is a criminal offence and the responsible statutory director can be fined for this. I imagine that there is a certain amount of political pressure to ‘make an example’. I know a few years ago I looked into how many times this had actually been done and the evidence base was really small, to the point of being miniscule. However, there were directors who made redundancies during furlough who were prosecuted so there is a precedent. Even if an employer decides to do what P&O did and commence with statutory consultation because they would essentially be buying out that right by making ex gratia payments under a settlement agreement, it would still be important for the HR1 form to be filed as a protection for the directors involved.
Anna Denton-Jones
Refreshing Law
A recent case involving ASDA highlights the challenges for employers when faced with an older worker beginning to exhibit the first signs of dementia. This particular case involved an employee who was 73 years old. She had worked for 20 years in a particular store. Her family had spotted the first symptoms of dementia 2 years before she was diagnosed with mild cognitive impairment but Asda did not know of this. Colleagues had become concerned that at times the employee appeared confused, would forget things and lose keys and the employer attempted to get the employee to occupational health. The employee refused that input and also refused to allow her employer to liaise with her family. During her Tribunal case it was alleged that a manager suggested retirement.
The employee then shielded due to her age during the first lockdown. It was during this time that she was diagnosed with mild mixed dementia. At the Tribunal, there were further allegations that during this period a manager twice asked the employee whether she wanted to retire, although the manager denied this.
The employee attended a return to work meeting with her son and he raised her being pressured to retire, asking the employer to ensure his mother would not be bullied or harassed. When the employee came back to work, she was observed to take longer to work stock, got flustered and confused about how she was going to get home. She was unable to find her keys and her bus pass in her bag, which led to a deputy store manager rummaging in her bag for them, which the employee later reported to her family as having upset her. The next day, management tried to have a discussion with her about what had happened and the employee became upset and aggressive, saying she didn’t need help and if she did she would ask for it. The employer tried to get her to occupational health and the employee gave the impression that she might have resigned before walking out and going off on the sick.
A grievance was raised but not upheld and a recommendation was that the employee attend occupational health.
The employee resigned claiming age and disability discrimination. Asda offered her the opportunity to reconsider but she didn’t take it.
The Tribunal found that the employee was constructively dismissed and the conduct amounted to age and disability related harassment, direct age discrimination and discrimination arising from a disability that breached the implied term of trust and confidence. The Tribunal understood that the suggestions of retirement on multiple occasions may have been said in a well-meaning way but were age related harassment. This clearly made the employee feel that she was being pushed out and was unwanted.
The rummaging in her bag was found to have violated her dignity – this was an act of disability related harassment because it was brought about by the memory impairment.
You shouldn’t discount this case as unusual because of the age of the employee – more and more older workers are present in the workforce these days and in any event, memory impairment can be diagnosed early on so assumptions about age and dementia cannot be made.
Whilst it can be very tempting for managers to try and manage problems with an employee who is older by mentioning retirement, they need to be trained to steer clear of retirement as a subject – you wouldn’t make such a comment to a 35 year old employee, so you shouldn’t make such a comment to an older worker as it just opens up the door to them claiming this kind of discrimination. That doesn’t mean a manager can’t discuss career plans. Conversations would need to happen across the board irrespective of the employee’s age though.
Instead, if an employee is beginning to exhibit signs of dementia or other cognitive impairment, the case should be dealt with as you would for any employee of any age. Asda had clearly tried to do the right thing in terms of getting the employee to occupational health but we don’t have enough detail about the lengths that they had gone to in that regard. It may be that they had steered away from explaining to the employee that their refusal to attend occupational health placed Asda in a difficult position of having to make decisions and judgements based on the only information that they had. It might have been that the employee was struggling to perform certain tasks. It was here that the focus should have been – what are the tasks the person is struggling with? What evidence is there that they are struggling?
With regards to the incident of searching the handbag, again the employee concerned was probably trying to be helpful but you need to operate on the basis that any searching of personal belonging or lockers needs to be done with consent and in accordance with any search policy that is in place. Any search would need to be justified and it is here that Asda probably struggled. The manager could have offered to assist and if the employee refused to take it up then to respect that.
Too often we observe that in having to deal with situations in a business-like manner probably while juggling a million and one other things causes line managers forget to add the “human” aspect into communications. The best way I deal with this is to write what I want to write about something, make sure my key points are covered and then go back and add in a language of care and concern and support and wanting to help the person but remember any judge is going to be looking at all of those things, judging whether or not you have done enough. I suspect the communications in this case were devoid of that human touch.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that may arise and what employers can do when an employee might have more than one job at the same time and ends up in a situation where they are overemployed.
Anna Denton-Jones
Refreshing Law
An employee who worked for Tesco settled her data breach claim for £3,000. She had requested copies of the information that Tesco held on her, using the subject access request mechanism that you are probably familiar with. She had, during a period of over 15 years working for her employer, given them a significant amount of ‘sensitive personal data’ in the old data protection jargon, now called ‘special category data’. This included details about counselling she had received in relation to her mental health, details of post-natal depression and the management of those health conditions. Most employers will have this sort of ‘special category data’ even if they don’t collect other data like criminal records.
It appears that Tesco could not lay their hands on this information, presumably in a physical format and there was a delay because the file had been lost at some point in the past, perhaps when there was a move of offices.
Tesco had written to her explaining that they had looked for her employment records but couldn’t find them. This then triggered her putting in her data breach claim, which would be to a Court and not an Employment Tribunal.
Tesco settled the case for £3,000 and it has been reported in the local press. The publicity surrounding these events is bound to give other employees ideas. It shows that the loss of data can be just as problematic as retaining historic data that you don’t really need to and can’t justify retaining.
Anna Denton-Jones
Refreshing Law
The Employment Appeal Tribunal has only ever heard two cases in this space. Most recently they dealt with the second case that’s come before them where essentially they told the lower Tribunal off for failing to recognise the employee’s disability and potential sex discrimination claims. The case involved Leicester City Council and a social worker who was claiming constructive unfair dismissal, disability discrimination and sex discrimination. Her claim centred around the Council’s treatment of her in relation to her menopausal symptoms.
In her claim she described suffering from physical, mental and psychological effects of the menopause for a 2 year period. This included insomnia – causing fatigue and tiredness, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. These had a negative impact on her life to the extent that she struggled physically and mentally to cope, had been to her GP who prescribed hormone replacement therapy and was under the care of a consultant at a specialist menopause clinic.
The employer had referred her to Occupational Health but were unable to meet the request that she be reviewed by a female doctor. The employee felt embarrassed and uncomfortable discussing her symptoms and the difficulties she was experiencing in their presence and in particular she had had a work related warning for her absence levels and at appeal, four men were present to make the decision. She described how when she had advised a male manager that she was suffering from hot flushes in the office, he had said he also got hot in the office, dismissing this as a menopause symptom.
The legal issues in the claim were more about the Tribunal having not applied the right level of detail to the explanation of their findings. The case still illustrates a number of key points:
- That the menopause and menopause related symptoms can meet the definition of disability under the Equality Act as regards a physical or mental impairment which has a substantial and long term adverse effect on somebody’s ability to carry out normal day to day activities.
- The need for employers have their antenna looking to spot in performance cases or cases where they are managing absence levels, whether there may be an underlying issue such as the menopause and the need, where there is, to use normal processes, and ensure further advice is obtained rather than ploughing on regardless, dismissing the issue as ‘just sickness absence’.
- When referring somebody to Occupational Health, it would be respectful, to abide with an employee’s wishes to enable them to see a female Dr if they want. A rule that they had to see whoever was available may be indirectly discriminatory and you would need to think carefully about whether you could justify such a requirement or whether it’s actually going to be seen as a separate act of harassment or victimisation if you fail to be flexible on this.
- It’s important to train managers so that they are aware of the menopause and don’t belittle it or think it can’t affect some people. We have a one-hour training session that we are able to provide on this subject area, if you are interested.
Interestingly, the Institution of Occupational Safety and Health has, as part of its response to the Parliamentary Enquiry that is currently going on into the issue of menopause in the workplace, made a number of recommendations including that employers need to take a more holistic view and put the spotlight on effective management practices and practical support. The Parliamentary Enquiry which launched in July of this year will consider, for example, whether it would be necessary to elevate menopause as a stand-alone disability like cancer under the Equality Act so that it gets the recognition it lacks at the moment.
Anna Denton-Jones
Refreshing Law
The government has launched a consultation relating to some amendments to the flexible working legislation making political mileage out of a willingness to make a request of flexible working a day 1 right, but what will their proposals really mean?
The current system works as follows: someone with 6 months service can make a request to work flexibly to their employer who must consider it within a reasonable time and can decline the request, provided their reasons for doing so falls within a list of eight business reasons for doing so. This covers things like the inability to service their customers, additional cost, the inability to reorganise work amongst existing staff or to recruit additional staff and a detrimental impact on quality or performance, if there is sufficient work during the period of time the employee proposes working and wider planned structural changes.
Given that it’s fairly straightforward for an employer to weave their way through, employees typically have to rely on the discrimination legislation to argue their request results in less favourable treatment of them compared with colleagues. For example, working mothers have often claimed indirect sex discrimination in comparison with the male workforce as regards fixed working hours and patterns of work because they are at a disadvantage as a result of the employer’s policies. The employer then has the ability to justify any indirect discrimination as a proportionate means of achieving a legitimate aim. Employees with caring responsibilities may have to rely on associative discrimination provisions or age discrimination to help them.
The Government’s consultation has asked for views on 5 different things:
- Making the right to request flexible working a day 1 right by removing the 26 week qualifying period.
- Whether the eight existing business reasons for refusing a statutory request remain valid.
- Requiring employers to suggest alternatives if they intend to refuse a request.
- The administrative process underpinning the rights to request flexible working and whether that needs any change.
- Whether the right to request a temporary flexible arrangement might be utilised.
This tells us that the Government may be considering a separate right to the existing legislation which results in a permanent change to somebody’s working patterns if a request is accepted and that there might need to be a short term agreement but clearly there’s no definition yet to see what that might look like. Anyone who is a working parent trying to juggle children being sent home from school because of COVID-19 will surely have ideas about how such temporary flexibility might improve their lives.
The Government has already signalled that it will introduce a right to carers leave, which would be 5 working days of unpaid leave per year for employees to manage long term caring responsibilities outside of work and which would be able to be taken in any combination from half day to days or part of a week to the week. We have been told that the legislation will go before Parliament “when time allows”.
The CIPD emphasise that flexible working needs to be thought about in wider terms than just whether somebody is working from home versus working in the office. There is a whole range of flexibility in relation to flexi-time, part-time working, compressing hours such as working a 13 day fortnight and job shares.
The Government is going to be considering the lessons that have been learnt from COVID-19 and the undoubted seismic changes in what employees want in terms of their desires and preferences to spend less time commuting and how that is balanced against what employers want in terms of what is workable for them and what is in the interests of the business. Quite how that balancing exercise will play out will be interesting – from a legislator perspective, my money would be on incremental changes only and the employers retaining the upper hand but realistically, all employers needs to consider the current jobs market and the fact that employees are gravitating towards those organisations who they feel are most likely to meet their needs and any employer who is ignoring the issue of flexible working is likely to experience the implications in their attrition rates and challenges recruiting.
It’s always worth remembering to trial something before having to commit to it fully. Often a trial is the only way to successfully assess whether or not something works as a compromise for both parties.
Anna Denton-Jones
Refreshing Law
In 2010, when the Equality Act was updated, the concept of associative discrimination was enshrined within the legislation as regards direct discrimination. This followed the famous Coleman case, where the protection had been extended to the employee not because of her disability but because she was caring for her disabled child.
Since then, in 2014, a Bulgarian case in the European Court of Justice, Chez Razpredelenie extended the concept of associative discrimination to indirect discrimination.
Reminder: direct discrimination is the idea that because of somebody’s protected characteristic they have been treated in a particular way. That direct discrimination can occur where the reason for less favourable treatment is the protected characteristic of someone with whom the victim associates.
For indirect discrimination to be established under Section 19 of the Equality Act, the Employer is applying some kind of provision criterion or practice to everybody but the Claimant argues that this puts them and those with whom they share a protected characteristic at a particular disadvantage. The employer has the opportunity to defend the case showing it to be a proportionate means to achieving a legitimate aim. Traditionally, this requires the Claimant to have the protected characteristic in question and to suffer the disadvantage personally.
In the Chez case the European Court of Justice held that the protection afforded by the Race Directive which sits behind our law applied irrespective of the ethnic origin of the person who suffered the disadvantage ie: associative indirect discrimination was possible. One of its reasons for doing so was the overarching aim of eliminating all discrimination on ethnic or racial grounds. Thus they were determining that it was sufficient for a person to show that they had suffered a particular advantage alongside a disadvantaged group.
In a recent UK decision of Follows v Nationwide Building Society, Mrs Follows was employed on a Homeworker Contract for around 7 years and the primary reason that she worked from home was to care for her disabled mother. She attended the office 2-3 days a week. She had high ratings in appraisals throughout her employment, including conducting excellent supervision of her team.
Nationwide decided to reduce the number of managers from 12 to 8 and to determine that everyone would have to be office based. The reason that they gave was a greater need for supervision due to a change in the nature of the work and feedback from junior staff who were dissatisfied with the level of supervision provided to them.
Mrs Fellows was put at risk of redundancy and the employer experienced more volunteers than the required reduction in headcount. Mrs Follows didn’t volunteer and wanted to stay in employment but continued to argue that she should retain her existing working from home arrangements. Nationwide it appears approached some of the volunteers for redundancy to request that they stay on but yet dismissed Mrs Follows by reason of redundancy.
Another male colleague, who was not disabled and who was not a carer but also worked from home received the same treatment and was also dismissed.
Mrs Follows brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.
The direct discrimination, the disability discrimination claim and the indirect age discrimination claims failed. She was successful in her claim for unfair dismissal, indirect associative discrimination on the grounds of her mother’s disability and indirect sex discrimination. Here we are going to focus on the disability arguments.
The reason why the direct discrimination claim failed was that the correct comparator was her male colleague who wasn’t disabled or a carer – because he received the same treatment as her and was also dismissed, she couldn’t get this claim off the ground. However, the claim of indirect disability discrimination by association was upheld. The Tribunal noted the background with the Chez case and the Tribunal were prepared to read our domestic legislation in the light of the Directive that sits behind it. 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. Nationwide knew of the circumstances and of the disadvantage that Mrs Follows would suffer by its changing requirements.
The legitimate aim relied on by Nationwide was the need to provide more effective onsite supervision and the change in their lending work: given the evidence Mrs Follows’ supervisions were good, the Tribunal felt supervision had to be onsite was itself discriminatory and it couldn’t therefore amount to a legitimate aim. Even if it had been prepared to find that they were legitimate aims it felt that selecting Mrs Follows for redundancy and dismissing her was not proportionate as a means of achieving that legitimate aim, it wasn’t based on any actual evidence or rational judgment, rather it was based on Nationwide’s objective view of dissatisfaction expressed from junior staff together with managers view that the new arrangement would be better. They had also failed to take into account Mrs Follows’ view or her history of excellent supervisory work. It seems that the Tribunal were mindful that Mrs Follows had been attending the office for 3 days a week already and was prepared to continue doing so. It clearly influenced their attitude towards Nationwide being unreasonable.
This case widens the picture of our discrimination law and will be particularly relevant now that we are looking at how we work from home or in the office and hybrid working moving forward.
Whilst the case is at first instance, there is always the opportunity for the Employment Appeal Tribunal to provide more guidance on this subject and employers need to be careful when arguing somebody must return to the office/can’t do their job from home. They must have concrete evidence to rely on to justify their demands.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing ‘maternity leave, redundancy and suitable alternative employment’.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that arose in a recent case that went to a Tribunal in Manchester in relation to a company sending a pregnant worker home during the pandemic.
Anna Denton-Jones
Refreshing Law