Here’s what’s inside this edition of ByteSize Employment:
- A matter of perception
- The employee doth protest too much
- Equal pay in the private sector
- More reasons to learn from Morrisons
- When are “protected conversations” admissible in evidence?
A matter of perception
The Employment Appeal Tribunal has upheld a finding of disability discrimination based on the perception that the Claimant was disabled.
The Claimant, a serving police officer, applied for a transfer between two forces. She had some hearing loss, which would usually have disqualified her from recruitment, however she was accepted after she passed a functionality test when joining the Wiltshire Constabulary enabling her to work without any adjustments being required.
However, the Norfolk Constabulary rejected her transfer request on the basis that her hearing was below the acceptable standard. They based their decision on concerns that the Claimant’s hearing might deteriorate further and lead to a situation where she would need to be accommodated on restricted duties putting strain on the remainder of the force.
The EAT upheld the employment tribunal’s finding that the treatment of the Claimant amounted to direct disability discrimination based on the Claimant’s perceived disability.
This was because Norfolk Constabulary perceived the Claimant to have a progressive condition that was likely to result in an impairment having a substantial adverse effect on her ability to carry out day-to-day activities e.g. that after the transfer her condition would deteriorate and she would no longer be able to perform the work she had carried out for Wiltshire Constabulary without adjustments needing to be made.
It was not a defence for the Norfolk Constabulary to argue that they did not consider the Claimant to be “disabled” because they were found to have perceived the Claimant to have a progressive condition that met the definition of disability as set out in the Equality Act.
Norfolk Constabulary’s lack of understanding of when a progressive condition can amount to a disability was irrelevant when assessing whether they perceived the Claimant to be disabled.
In addition, whether the Claimant did have a progressive condition that amounted to a disability was also irrelevant as what mattered was the employer’s perception.
This case highlights the value of training employees so that they have a working knowledge of the Equality Act’s definition of disability. There will be many situations where an employee will fall within the Equality Act’s definition even though that employee would not be described in the day-to-day sense as “disabled”.
Case referred to: Chief Constable of Norfolk v Coffey
The employee doth protest too much
The Court of Appeal has held that an employee cannot refuse to work in protest to a demotion even though the demotion was found to be an act of disability discrimination.
The Claimant, a senior sales lead, had been off work due to a back condition which amounted to a disability for one year. Upon his return to work he was allocated reduced duties as the employer believed that he needed to get back up to speed and prove himself again after such a long absence.
Although he remained on full pay, the Claimant believed the reduced duties he had been given amounted to a demotion.
The Claimant refused to perform any aspect of the ‘lesser role’ leading to his dismissal for gross misconduct.
The Court of Appeal found that the Claimant’s refusal to carry out any work in the reduced role, which included some of the duties of the full role he had performed prior to his absence, was a fundamental breach of his contract amounting to gross misconduct.
The court reached this finding despite also determining that the employer’s requirement that the Claimant perform a lesser role constituted discrimination as it was unfavourable treatment because of the absence caused by the Claimant’s disability which could not be justified.
This case highlights to both employers and employees that even where an employee has been subject to wrongdoing they cannot necessarily refuse to work until that wrong is rectified.
The Court of Appeal noted that there are other options available to employees in this position such as to resign and claim constructive dismissal, or to pursue a discrimination claim whilst remaining in employment.
Case referred to: Rochford v WNS Global Services (UK) Ltd
Equal Pay in the private sector
From high profile resignations and pay cuts at the BBC to the largest corporate equal pay claim ever seen in this country brought by 17,000 Asda workers, equal pay is firmly in the spotlight in 2018.
To succeed with a claim where employees are not performing equal work, or work that has been rated as equivalent by a job evaluation scheme or an analytical job evaluation study, an employee must establish that two different jobs are work of “equal value”.
To establish work of equal value, the skills, responsibilities, effort and demands required of a role/roles predominantly carried out by woman are assessed against the same criteria for a role/roles predominantly carried out by men.
As employers with more than 250 employees have now published their gender pay gap in accordance with the new gender pay reporting oligations it is anticipated that equal pay disputes will be more common for employers across the private sector.
More reasons to learn from Morrisons
The High Court have held Morrisons Supermarket PLC, vicariously liable for the deliberate and criminal disclosure of personal data by an employee.
In this case, a Morrisons employee was given an encrypted USB stick containing employees’ personal data in order to carry out a work task. The employee copied Morrisons’ data on to a personal USB stick and then uploaded the personal data of almost 100,000 Morrisons employees to a file sharing website.
He was arrested and convicted of various offences, resulting in an eight year prison sentence. However, a group of the employees whose data had been disclosed pursued a group claim against Morrisons seeking compensation on the basis that Morrisons had liability for its own actions and also should be held vicariously liable for the actions of its employee.
Whilst Morrisons’ were not held liable for their own actions, the High Court upheld the claim based on vicarious liability. Morrisons were held to not have put in place an organised system for the deletion of data, instead trusting individuals to carry out the appropriate deletion.
The court considered whether a manager asking an employee to see evidence of deleted data might indicate a lack of trust, damaging employee/employer relationships but dismissed this concern pointing out that this problem would be alleviated by a consistent practice applied to all employees which would develop a culture of expectation.
This is a worrying decision for employers as there is no fool proof system for entrusting employees to handle data and there will always be rogue employees. In this case Morrisons were held to be liable even though there was significant evidence demonstrating that they had appropriate data protection measures in place, save in respect of the issue of deletion. If Morrisons’ appeal is not successful they will be forced to compensate all 5,518 Claimants.
The EU General Data Protection Regulation, known as GDPR, comes into force on 25 May 2018 and the impact of this decision will likely be extended. It is therefore important that employers take steps to prepare in advance of 25 May 2018 by updating their employment contracts and data protection polices and preparing the privacy notices that they will need to provide to employees to ensure compliance with GDPR.
Case referred to: Various Claimants v WM Morrisons Supermarket PLC
When are “protected conversations” admissible in evidence?
The Employment Appeal Tribunal (“EAT”) has held that an employment tribunal can hear evidence of pre-termination settlement negotiations or “protected conversations” in unfair dismissal cases where the effective date of termination (EDT) is in dispute.
In this case the employer, BJSS, raised concerns regarding the Claimant’s performance at a meeting and then sent two him two letters.
One letter arranged a disciplinary hearing and the other letter, labelled “without prejudice and subject to contract”, offered the claimant three months’ net salary in return for the Claimant’s employment ending immediately and him signing a settlement agreement.
The Claimant responded to the employer’s offer letter stating, “I accept bjss’s 3 month notice offer subject to contract and without prejudice; today will be the last day at bjss.” The Claimant did not sign a settlement agreement after instructing solicitors who informed BJSS that the Claimant had been signed off with stress and would not attend the disciplinary hearing. BJSS replied stating that the Claimant’s employment had terminated by agreement.
When the Claimant presented a claim for unfair dismissal both the EDT and manner of his dismissal were in dispute.
The EAT held that, as the EDT was in dispute, evidence of the pre-termination negotiations was admissible for the purposes of determining the EDT.
By way of contrast the EAT said that where the dispute relates to the nature of termination (e.g. was the claimant dismissed or did they resign) then evidence of pre-termination negotiations or protected conversations can be excluded.
A classic example of this would be where an employee claims constructive dismissal having resigned following settlement negotiations which did not lead to an agreement.
In this scenario, the employee will not be able to rely on matters arising during the settlement negotiations as evidence before an employment tribunal unless there has been improper behaviour by the employer during the negotiations.
This case reminds employers that they should be mindful of the risk that, in certain circumstances, the content of protected conversations will be admissible as evidence before an employment tribunal.
Case referred to: Basra v BJSS Limited
If you would like to discuss these issues further please contact a member of our employment team on 0115 9 100 200 or click here to send an email
Posted on April 30, 2018
