Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the situation where someone has been offered a settlement agreement where poor performance has been used as the context of the settlement agreement.
Anna Denton-Jones
Refreshing Law
The Employment Rights Bill was introduced to Parliament on 10 October 2024.
The aim of the bill is to modernise employment rights legislation. Anna has prepared a number of videos which outline some of the changes the bill introduces:
This video discusses the duty to prevent sexual harassment and can be found here.
This video discusses the initial period of employment and can be found here.
This video discusses the removal of the 2 year qualifying period to claim unfair dismissal and can be found here.
This video discusses the position as regards the impact on redundancy and can be found here.
This video discusses the position as regards collective redundancy – so large scale redundancy and can be found here.
The videos were recorded on 30.10.2024.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses anonymity of witnesses in disciplinary matters.
Anna Denton-Jones
Refreshing Law
Around this time each year, we focus on an in-depth employment law topic. This year in Knowledge November, we’re deep diving into reasonable adjustments for those with a disability. Click below to view the latest editions:
Knowledge November 2024 – week 1
Knowledge November 2024 – week 2
Knowledge November 2024 – week 3
Knowledge November 2024 – week 4
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video where Anna discusses the issues that can arise and may need to be considered when an employee is accused of a criminal offence.
Anna Denton-Jones
Refreshing Law
In any redundancy situation, the employer is going to have to decide what selection process they follow. One of the key questions in such a process is whether a group of employees need to be pooled for selection with some kind of assessment taking place as to who stays and who goes or whether the pool just involves one person, in which case if that post disappears, then the person in post at the time is the one who is selected for redundancy.
In a recent EAT decision, Valimulla v AL-KHAIR Foundation found that it was unfair dismissal not to have consulted about the appropriateness of the pool. The individual concerned worked as a Liaison Officer covering the North West of England and there were other employees who did the same thing albeit in other geographical areas. As a result of Covid, work for Liaison Officers decreased across the country and the employer decided to place the employee at risk of redundancy in a pool of one. The other Liaison Officers were not placed at risk. Three consultation meetings were held with the individual about the redundancy in general but they did not consult about the appropriateness of the pool.
When it reached the Employment Tribunal, the original Tribunal accepted that there was a pool of one. The employee appealed and the Employment Appeal Tribunal allowed that appeal, holding the consultation on redundancy needs to take place at a time when it could make a difference, which of course would be right at the beginning of the process.
Make sure that if you do have a reason to choose a pool of one, that you document what your reasons for doing that are. Include consultation with the individual affected about your thought process, ie. give the employee the opportunity to challenge your thinking and make alternative suggestions. You will then need to weigh what they have said against your own process and decide what methodology is most appropriate.
This the second recent decision going to the root of redundancies reminding us of the importance of process, that shouldn’t be skipped.
Anna Denton-Jones
Refreshing Law
I have had a handful of recent cases where Occupational Health have advised employers in relation to employees with anxiety problems that the employee’s duties exacerbate their condition.
In all of these cases a recommendation has been reducing telephone duties so that the employee is taking less calls during the day or completely stopping telephone duties altogether so the employee is, for example, focusing on emails rather than telephone calls. In these cases, the employer has done entirely the right thing in trying to follow the Occupational Health advice, adjusting the duties accordingly, but there has been no plan for the long term. What is accommodatable initially and what is planned for when, after a few months, the employee has got into the habit of not dealing with telephone calls either at all or dealing with only a few? If you aren’t careful you end up in a situation where the employee is not performing large parts of their role and everyone is stuck.
Rather than agreeing outright to the adjustments, it may be sensible to agree to a temporary adjustment with a discussed plan for how you get from that place of a reduced requirement to carry out a particular activity and back to the contractual duties being performed.
To put it another way, given the cost it takes to support somebody’s mental health to make adjustments, it is misleading to alter things that are not going to be able to be accommodated in the long run. That just creates false expectations and could be achieving more harm than good over time.
Alternatives to reducing the duties completely might be:
Remember Occupational Health are just providing you with suggestions – it is up to you to decide, as an employer, whether or not you can accommodate those suggestions. It is possible that you will have roles within your organisation that cannot actually be adjusted to prevent some core duty of that role taking place. In that scenario you might actually be saying no you can’t make a particular adjustment because it is not reasonable to do so.If we aren’t making an adjustment then we need to be able to justify why not to a Judge, if that ever became necessary, so having evidence to back up that decision will be useful. Is there evidence of how many phone calls a day are taken in that role? What is the proportion of the day spent doing other activities? Are the phone calls critical to generating the work that the person then does?
Anna Denton-Jones
Refreshing Law
If as a result of somebody’s disability they become unable to do the current role that they are employed in and the employer is looking to exit the employee from that position, they are obligated to look at alternative employment. This is the case in unfair dismissal law, before you even think about the disability angle.
In a recent case (Miller v Rentokil 2024 EAT 37), the particular employee concerned had multiple sclerosis, which is a deemed disability under the Equality Act 2010, a bit like cancer, ie. the employee does not have to jump through hoops to show that there is a substantial disadvantage, has a long term effect and has difficulty with normal day to day activities. They are deemed as disabled, so we move directly to consider how they have been treated.
Once the employee has a disability, then the duty to make reasonable adjustments kicks in. In this case, the employee was a field based pest controller and the role involved him working at heights for 40% of the time. He could no longer do this and could only work very slowly. This particular employer looked at other jobs within the organisation and put him forward for an administrator role but decided not to recruit him and dismissed him.
He claims that failing to place him in the administrator role on a trial basis amounted to a failure to make a reasonable adjustment. The Tribunal upheld his claim, as did the Employment Appeal Tribunal. The burden was on the employer to show that it was not reasonable to have put that person into the role on a trial basis. They clearly couldn’t convince a Tribunal of this. On an objective assessment clearly they believed that he met the essential requirements of the job and a trial could have been successful.
The way I look at it, the employer is going to have to convince the Tribunal why it couldn’t do this, and why the employee couldn’t be trained into the role, particularly when it is a large employer. For example, somebody who isn’t used to using computers on a day to day basis might be trained and adapted into doing so.
In this particular case, the employer had actually set tests in verbal usage and maths in relation to their standard interview process. These tests were ones that the employer applied to everybody applying for roles and the Claimant scored 16 out of 30 in the verbal usage test and 7 out of 30 in the maths test. It was clear that the employee didn’t have experience using Excel, the spreadsheet programme, which perhaps explains why the decision maker in the case, a recruitment manager, decided not to slot the employee into the vacancy. It did not however consider any retraining or any trial.
In the case, they went back to Archibald v Fife Council from 2004 and Lady Justice Hale’s summation that making reasonable adjustments requires the employer to treat the disabled person more favourably than others. This too was the case of a manual worker no longer able to carry out her duties for mobility reasons. Lady Justice Hale pointed out that there is no law against discriminating against people with a background in manual work but it might be reasonable for an employer to have to take the difficulty that that person would face into account when considering the transfer of a disabled worker who could no longer do that type of work. Essentially I think that means being more patient and accommodating with someone making a transition.
In this particular case, the administrator role was a more junior one than the technical role the employee had taken on previously. They took into account the fact that his technical knowledge and experience in doing the manual job would actually assist him in being able to be an administrative support worker to those other colleagues doing that role.
They weren’t unsympathetic to the employer having concerns about whether or not he could do the role, but the key to assessing that would have been the trial period.
The other flaw in the employer’s process was not just slotting the employer into that trial. Instead they seemed to have just treated him as any other applicant for the role and possibly even put him up against other people in a recruitment process. The duty to make reasonable adjustments is about prioritising the employee.
The length of the trial period that the courts were talking about in this case was a 4 week trial. Given that is actually quite a short period, it would be wise to pay an extra month’s salary whilst assessing somebody’s suitability in an alternative position rather than dismiss.
Anna Denton-Jones
Refreshing Law
You may have seen that David Miller has been successful in establishing that his anti-Zionist beliefs qualify as a philosophical belief and are therefore protected under Section 10 of the Equality Act 2010. This is the latest in a series of cases, such as the Maya Forstater case and the Alison Bailey case showing that the law will potentially protect the right to hold beliefs that are perhaps less fashionable or out of step with others, just as much as it protects more mainstream views.
We’ve known since the Grainger case some years ago that for a belief to be protected, it has to be something that is worthy of respect in a democratic society but essentially the Courts are taking a really wide view of that and it seems that only the most extreme beliefs would be excluded: Naziism is the example that is always given.
This leaves us in a position where if you state your beliefs, for example, in meetings, in the workplace, on social media and others are offended, and the employer wades in on the “side” of others, they risk committing direct discrimination against the person holding that belief. Examples in recent years have included the Page case where they were talking about same sex marriage, Forstater where it involved views on biological sex being immutable (unable to change) and in the David Miller case, the belief that Zionism is problematic for a number of reasons. Therefore, if your belief system is racist or homophobic or anti-islamist, this protects your right to hold that belief and express it. Essentially, the law protects the individual’s right to express their opinions and articulate their beliefs provided that the individual is manifesting their beliefs in a way that is not objectionable, they will be protected by the law of direct discrimination. In contrast to those who step over a line and express their beliefs in an objectionable manner.
This leaves employers having to regulate between groups of staff with opposing views. Up until now, employers have taken a “dampening” approach asking colleagues whose views might cause friction with others to perhaps be quiet about it. The “ we respect your views and you are entitled to have them but given it is causing an issue please can you not go on about it” approach.
That is problematic – the law has imported from European Law and Human Rights Law the concept of proportionality – an employer having a quiet word with colleagues asking them to be mindful perhaps of policies as others have contrary views is going to be proportionate. Wading in and disciplining or excluding a member of staff from certain activities is likely to fall into the disproportionate category.
The traditional approach of having a ‘zero tolerance’ approach in Equality and Diversity Policies to any kind of bullying or harassment gets unstuck; it doesn’t work when we are juggling different beliefs and can lead the employer into direct discrimination territory when penalising someone who has caused offence.
It is still legitimate for a company to set out what its values are and expect staff to behave in a manner which fits in those values. However if the employee is doing their job but causing offence to others when they express their beliefs, real caution needs to be taken.
I recommend that you make it clear in any policies that you do have that in the workplace you may have to listen to views that you find offensive, and others are entitled to express their beliefs, even where those beliefs clash with yours, to make it clear that the employer is having to moderate and balance a range of opinions.
Where an issue emerges, seek advice before taking any steps you might want to and try the test of ‘if this person was expressing a view about [slavery/children being sent down mines being a negative thing] – insert a benign belief here, would we be taking this step’? That is likely to take the emotional heat out of it.
If the employee’s conduct is becoming problematic, can we strip out what the conduct is that is an issue and separate it from the belief? eg:- they are expressing their views to customers and upsetting them, we’ve had complaints.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video where Anna discusses resignations and ‘heat of the moment’ resignations in particular. There has been a recent Employment Appeal Tribunal decision in relation to this kind of resignation and they have summarised the position of the law in this area which Anna discusses in more detail.
Anna Denton-Jones
Refreshing Law
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