EmpLaw Newsletter April 2019

April 2019

Here is our latest on-line Employment Law newsletter which will assist in keeping you informed of various current employment issues. The content of this newsletter is provided for general information purposes only and it is not intended to be legal or other professional advice. It should not be considered a substitute for taking professional advice in relation to specific circumstances. No responsibility can be accepted by Assicurazioni Generali S.p.A. for any action taken as a result of the information provided.

Discrimination arising from disability is where an employer treats an employee less favourably because of 'something' which results from their disability and which can't be justified. The Employment Appeal Tribunal has recently looked at whether it is discriminatory to discipline an employee for failing to follow an instruction they mistakenly think will exacerbate their disability.
In iForce v Wood, the employee had osteoarthritis, a disability which got worse in damp and cold conditions. She refused to move workstations because she mistakenly believed that the new bench was in a colder and damper place in the warehouse. She believed this would make her disability worse. Tests showed the area was no damper or colder than elsewhere. When she refused to move, she was given a warning for failing to follow a reasonable instruction. She brought a claim for discrimination arising from disability. She said the warning was a less favourable treatment which arose because of something (the refusal to move benches) which resulted from her disability.
She won in the employment tribunal. However, the Employment Appeal Tribunal disagreed. There had to be a connection between the something (the refusal to move) and the disability. Tests showed that the proposed working area was not colder or damper.  Unless the employee could link her mistaken belief to her disability (which she could not), there was no connection between her disability and her refusal to move workstations.
This case is good news for employers. A perceived (and mistaken) connection between the unfavourable treatment and the 'something arising from disability' will not be enough. There must be a causal connection between the disability and the less favourable treatment. In this case, there wasn’t one.
  1. Maternity discrimination 
  2. ACAS guidance on neurodiversity
  3. Final written warnings
  4. Constructive dismissal
  5. Disciplinaries and criminal proceedings
  6. Confidentiality clauses
  7. New holiday pay guidance
  8. Worker status
  9. And finally… 
An employer discriminates against a woman if they treat her unfavourably because she is taking maternity leave. In SW Yorkshire NHS Trust v Jackson, the employee was on maternity leave when redundancies were announced. She attended a consultation meeting and was put at risk of redundancy. Redeployment information was sent to her work email account which she was not accessing while on maternity leave. She found out about the email, contacted the employer and got the relevant redeployment forms anyway. In reality, she was not disadvantaged by the short delay but she was concerned by it.
The employment tribunal found that the delay in finding out about job opportunities was unfavourable treatment. The employer appealed. The Employment Appeal Tribunal agreed that sending an email to an inaccessible email account was unfavourable treatment. However, the employment tribunal had not asked the 'reason why' the treatment occurred. The important question was whether the unfavourable treatment was 'because of' maternity leave (which would be discriminatory) or for another non-discriminatory reason, such as an administrative error.
The employment tribunal had not looked at the reason why the email had been sent to the employee's work email address. Nor was there any information about why the employee was not accessing her emails. Both of these things were important. The case was sent back to the employment tribunal to find out this information and decide the case again.
This case demonstrates the importance of agreeing on communication methods with employees before their maternity leave starts. Confirm phone numbers and email addresses and ensure anyone contacting the employee understands what has been agreed. [back to top]
Neurodiversity is used to describe the different ways that the brain can process information. If someone is neurotypical, the brain functions in the way that society expects. About one in seven of us are neurodivergent, which means the brain functions differently. 
The guidance takes the reader through some examples of neurodivergent conditions and gives typical traits associated with them, whilst warning against stereotyping. It gives the example that not all autistic people will be good at maths. The guidance is keen to point out that these conditions bring strengths as well as difficulties.
The guidance also gives information on why employers should support neurodiversity in the workplace. Inclusion is positive for those with neurodivergence, reducing stigma and making people less worried about disclosing their condition. It is also good for employers, providing a pool of potentially untapped talent. It also points out that many neurodivergent conditions will qualify as a disability, requiring reasonable adjustments. The guidance also contains helpful advice on managing staff with neurodivergence. Find the guidance here [back to top]
An employee can be fairly dismissed for misconduct (rather than gross misconduct) if they already have a final written warning in place. In Beattie v Condorrat, the Employment Appeal Tribunal considered whether a final written warning could be valid if it was given without conducting a full investigation.
The employee was a bar steward in charge of stock orders and deliveries. Stock went missing and the employee was given a final written warning. During her appeal, she accepted part responsibility and offer to repay part of the cost. The employee then refused to sell tickets to a function because she was worried about money going missing while she was on a final written warning. She was dismissed for failing to follow that instruction. It was only misconduct, but she was dismissed because she was already on a final written warning. 
The employee claimed unfair dismissal. The employment tribunal said she had been unfairly dismissed because the employer had not followed a fair procedure. However, it reduced her compensation to zero. They said there was a 100 per cent chance she would have been dismissed anyway, even with a fair procedure. The employee appealed. She said that the final written warning was invalid.
The Employment Appeal Tribunal did not agree. In general, earlier decisions made by employers should not be reopened unless there is evidence that the decision was manifestly unreasonable. Here, the employee had partially admitted her guilt. That mitigated the need for a full investigation. The final written warning was valid and the reduction in compensation was allowed. This case is comforting for employers. Unless previous decisions are manifestly unreasonable, tribunals should not reopen them. [back to top]
In order to suspend an employee fairly, an employer must have reasonable and proper cause for doing so. If not, a suspension could breach the implied term of mutual trust and confidence and create a constructive dismissal. In London Borough of Lambeth v Agoreyo, the Court of Appeal looked at the decision to suspend a teacher and whether it resulted in the employee being constructively dismissed.
A teacher was alleged to have used unreasonable force against two children with challenging behaviour. She was suspended pending an investigation but resigned the same day. She said the suspension was not reasonable or necessary for the investigation to take place and was a breach of trust and confidence. The County Court did not agree. However, the High Court found that the suspension had been a knee jerk reaction which was not necessary and therefore breached trust and confidence. 
The Court of Appeal disagreed. The High Court's use of the 'necessary' test was wrong. The test was whether there was reasonable and proper cause to suspend. In this case, with serious allegations against young children, the County Court had been entitled to find that there was reasonable and proper cause for suspension. There had been no constructive dismissal.
Employers must consider suspension carefully. It should not be used routinely in every disciplinary case. Only suspend an employee if there is a good reason to do so, for example, to preserve evidence or protect other employees. Consider other options such as changing shifts or working patterns. Suspension should be a last resort, not a first step. [back to top]
In professional misconduct cases, a criminal investigation often sits alongside a disciplinary investigation. Employers do not want to wait for the outcome of the criminal case before concluding disciplinary proceedings, especially when the employee is suspended on full pay. The Court of Appeal looked at this issue in North West Anglia NHS Trust v Gregg, in a case involving a doctor.
Dr Gregg was accused of causing the early deaths of several patients. The Trust started disciplinary proceedings and told the police. The doctor was advised by his legal team not to participate in the disciplinary proceedings in case he prejudiced the criminal case. The Trust refused to adjourn the proceedings. Dr Gregg sought and was granted, a High Court injunction stopping the disciplinary process until the criminal case had concluded. The judge found that pursuing the disciplinary process rather than waiting to see if he was charged with a crime breached the implied term of mutual trust and confidence. 
The Court of Appeal disagreed. The correct test was twofold: firstly, was the conduct of the employer was designed to destroy or seriously damage the relationship with the employee? Secondly, was there reasonable and proper cause for those steps? The Court of Appeal said the Trust's conduct was not designed to damage the relationship. They also said the Trust had reasonable and proper cause for wanting to pursue the disciplinary process against Dr Gregg. An injunction should only be granted if there is a real danger of a miscarriage of justice, which there was not in this case. Legal advice not to engage in the process is not enough to justify an injunction.
The court in this case essentially said the Trust should have been allowed to get on with it. The test applied by an employer (genuine belief in guilt based on reasonable grounds) is much lower than the criminal test of proving allegations beyond a reasonable doubt. That is another reason to treat the two processes differently. Employers will not usually need to wait for the outcome of criminal proceedings before concluding their own investigations. [back to top
The government has launched a consultation on preventing the misuse of confidentiality clauses in harassment and discrimination situations. These non-disclosure agreements (NDAs) can be a useful tool for employers in settling disputes whilst preventing reputational damage. 
The government wants to clarify how far NDAs can go. It wants employers to say explicitly in agreements that certain disclosure rights are preserved, such as disclosures to the police. They want to make it compulsory for employees to get specific advice on any confidentiality provisions for the clauses to be binding. They also want to make employers spell out the limits of confidentiality provisions in contracts of employment.
These proposals should not affect the right to protect company trade secrets or to use NDAs as part of a settlement to create a genuine clean break. The government's aim is to tackle misuse of NDAs rather than prevent their use at all. Have your say here [back to top]
The Department for Business, Energy and Industrial Strategy has published new holiday pay guidance. The guidance was issued after a survey revealed an 'alarming lack of awareness' about holiday pay. 
The survey showed that half of workers thought that those on zero-hours contracts were not entitled to holiday pay. More than half thought they had to work three months before the right to holiday arose. The guidance aims to debunk these and other myths.
The guidance is detailed. It contains examples of how to calculate average pay in complicated working patterns. It also has an online calculator to work out holiday entitlement for workers with no fixed hours in a variety of working arrangements. Read the guidance here [back to top]
The worker status bubble has expanded recently and found its way into the public sector. In Braine v The National Gallery, an employment tribunal has held that art educators are workers when they are working on individual assignments. 
The educators were art experts. Their role was to deliver talks, lectures and workshops at the National Gallery. Their contracts said they were self-employed. The individuals said they were employees and/or workers. The employment tribunal found they were workers, but only during actual assignments, not in between. During assignments, the Gallery exerted significant control over the individuals, both in what they did and the way they did it. They were well integrated into the Gallery's organisation. There was mutuality of obligation during assignments: the educators had to do the work and the Gallery had to pay for it. The educators had to do the work personally. They were not running their own small businesses.
The judge in this case reiterated that these cases are fact sensitive. Employers should examine whether they use individuals who fall into the 'intermediate category' between employed and self-employed. Such individuals might have additional rights like the minimum wage and paid holiday. [back to top]
Are you managing your millennials properly? Natalie Salunke, Head of Legal, Europe at Fleetcor, and a millennial herself, has written an article on this topic. 'Millennial' is a term used to describe the generation born between the early 1980s and the late 1990s. Whilst recognising that everyone is different, Ms Salunke offers her views on how to get the best out of millennials at work.
She says millennials are often more motivated by the work than by money. Millennials have grown up in a culture of immediacy due to the internet and social media. They expect performance to lead to advancement. They can get bored easily and benefit from varied work with wide-ranging experiences. They are 'addicted to regular validation' and recognition from managers and peers. They want a good work-life balance.
Everyone is different, but these ideas from Salunke could arguably benefit all workers:
If the business allows, consider rotating employees around departments, so they don’t feel 'stuck' and learn about the business as a whole;
Feedback is vital: build in regular one to one meetings and additional developmental reviews to the usual appraisal calendar;
Empower employees to find innovative solutions to workplace issues: involve them in new projects or investigating new technologies;
Consider flexible working arrangements for staff to help with work-life balance;
Create a culture which values and rewards hard work and achievement and offers varied training opportunities.