difficult employment issues, including discrimination update

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Difficult Employment Issues,

Including Discrimination UpdateWednesday 6th December 2017

Sarah Hooton - Browne Jacobson LLP

Rachel Mills - Geldards LLP

Sophie Thring - Geldards LLP

Thursday 9th November, 2017

Managing Sickness

Absence

Sarah Hooton, Browne Jacobson LLP


CIPD Annual Survey Report – Absence Management 2016

Public Sector Summary

• Average level of absence has decreased slightly – 8.5 days per employee,

compared to 8.7 days in 2015 (private sector: 5.2 days per employee in 2016)

• Median length of absence is 3.3 days higher than in the private sector

• Median cost of absence has increased from £789 per employee (2015) to

£835

• Stress, musculoskeletal injuries and mental health are top causes (after

minor illness for short-term absence)

• More likely that those from other sectors to report that heavy workloads and

considerable organisational change/restructuring are the main causes of

stress at work

Some statistics


Make sure you:

• Follow your policy and regularly review it

• Monitor absence rates

• Carry out return to work interviews

• Use your triggers points to take action

• Make effective use of occupational health

• Keep in contact with employees during absences

• Ensure a “joined up” approach is taken

• Keep a paper trail

How to manage absence?


Individual level:

• What are the triggers?

• How will you know that they’ve been met?

• Who will take action if they are?

• Be consistent and fair

Organisation wide:

• Areas for concern

• Areas of good practice

• What information needs to be monitored?

How to measure absence?

TIP:

Use working days lost

per employee as your

measure – it shows

greater impact

= no. days sick ÷

average number of

employees


Case study 1

• Amanda works within your legal department and has done for four years.

• As her manager, you have noticed that she seems to have had a few odd days sick here and there. Thinking about it, you think she has had quite a few days off over the last 12 months, and this causes you concern due to the impact on other employees and service delivery.

• What would you do?


• Identify if there is a pattern which needs to be dealt with -have they hit triggers?

• Identify whether there is an underlying health condition (are the absences genuine?)

• Hold series of meetings (with warnings) and timescale for review

• Remind the employee of their contractual obligations and consequences of continuing poor attendance

Short term sickness absence


• Do not allow the situation to drift

• Hold review meetings – keep in contact

• Determine action based on reason for absence

• Consultation in light of medical evidence is important

• Think about:

• Is the employee capable of performing their full duties safely?

• Reasonable adjustments /alternative employment

Long term sickness absence


Conduct during absences

• Holidays and trips abroad

• Dealing with concerns over whether someone is

genuinely ill

• Social media


Return to Work Interviews:

• Common absence management tool – they do make a difference to

reducing levels of absence and reinforcing your duty of care

• Need not be time consuming

• Ensures you are consistent

• Essential to help identify potential underlying conditions

• Opportunity to explain concerns about attendance

• Opportunity to identify support that may be required

• Disincentive to take sick leave

Fit notes:

• Consider adjustments and/or risk assessments

Rehabilitation back to work

Return to work interviews


Common issues

• Problem areas– Pregnancy related illness

• Protected period

• Discount absences within protected period

– Annual leave and sickness absence

• Does holiday entitlement accrue during sick leave? YES

• Can a worker on long-term sick leave take holiday, and/or carry holiday entitlement from one leave year to the next? YES

• Can a worker who falls sick over a holiday period treat that period as sick leave and "reclaim" their holiday entitlement? YES


• Advice on prognosis and recommendations for you to

consider

• But will depend what information you provide and what

you ask them

• They are not the employee’s advocate (that is the GP)

• Helps demonstrate you have acted reasonably – follow up on recommendations (can you action them?)

• Management decision to dismiss, not a doctor’s

• What if the employee refuses to attend?

Occupational health


• Why the need to refer?

• When is the right time to refer?

• What to include on the referral?

• What to do with the report?

• Telephone consultations can be appropriate

Occupational health referrals

TIP: If you can, speak to occupational

health on the phone to explain the

circumstances and don’t be afraid to

clarify or ask for further information when

you have received the report – they are

there to advise management


• If possible, complete with employee’s participation but at least inform them of

the referral

• Attach job description and make specific reference to important tasks

• What to ask

– “What is the prognosis of the condition?”

– “When are they likely to return to work ?”

– “Are they fit and able to carry out full duties of the post?”

– “Does the employee have a disability within the meaning of the Equality

Act 2010 – if so what adjustments would be considered reasonable?”

What to include

TIP:

Ask what is the timescale for

return to work – and consider

whether that is reasonable


Consider:

• Does the adjustment get over the disadvantage?

• Is it practicable?

• Financial and other costs of making the adjustment

• Resources available to you

• Disruption to organisation’s activities of making the

adjustment

• The nature and size of the undertaking

Reasonable adjustments


Examples of adjustments

Phased return to

work

Varied start and finish

times

Alteration or reallocation

of duties

Relocating workstation

Purchasing equipment or software


Pete works within your Maintenance team and has been absent since

January due to a prolapsed disc. He had surgery in July and is currently

signed off sick until the middle of November. His latest fit note states he

could return in November if the school can make some changes:

• a phased return

• workplace adaptations as he can’t sit for long period, can’t climb, and

lifting is an issue

• home working would help

• the adjustments recommended are required for first 12 weeks of

return

• What can we do about Pete?

Case study 2


When absence becomes a

problem• Formal procedures where absence presents

unacceptable level of disruption

• Formal meetings to establish:– The reasons for the absence.

– When the employee is likely to return to work (in cases of long-term absence).

– When the employee is likely to show improved attendance patterns (in the case of short-term, intermittent absences).

• Long-term absence: first formal meeting– The likely date of return

– Whether the employee perceives they can return to their previous job and what adjustments can be made

– What alternatives the employee may wish to explore: redeployment or application for employment benefits

– The mechanics of a return to work programme

– Whether the person has a disability and, if so, whether there are any reasonable adjustments that should be made.


When absence becomes a

problem• Short-term absence: first formal meeting

– The effect of the pattern of absences on the employee's colleagues, department and the service

– The likelihood of continuing absences and the impact they are likely to have

– Whether there are changes to the employee's job or redeployment opportunities that would assist in attendance, reduce the effect on colleagues or the service provided

– Whether the employee has a disability and, if so, whether there are any reasonable adjustments that could be made

– Whether it is appropriate to give the employee a formal warning that their attendance levels need to improve.


Where the employee is on long term sick, consider if:

• It looks like the employee will not be able to return to work, or

• The prognosis is such that it cannot be said when (if at all) the

employee might be fit to return, or

• Redeployment/ retirement are not available

May also be appropriate for short term sickness, after a series of

graduated warnings for poor attendance, with no improvement

Dismissal – when is it

appropriate?


• Some other substantial reason (SOSR) or capability?

A tribunal will consider whether :

• The employee knew what was required of them?

• The employer took steps to improve the attendance?

• The employee was warned of the consequences of the failure to

improve?

• The employee was given an opportunity to improve with a reasonable

timescale?

• Was it reasonable to dismiss - band of reasonable responses?

Dismissal


Ill health retirement

• You should consider whether they meet the criteria as

part of any decision to dismiss

• You still need to consult with them if ill health is

recommended


Dealing with stress

• Common issue you will be dealing with:

“Anxiety, low mood, depression, psychological state”

• Is it related to capability?

• Will need a medical view and consider any recommendations for

adjustments (but are they reasonable)

• Identify if it is work-related and take action accordingly - consider

workloads


Case study 3

• Jane works within your People Services team and there are concerns in

relation to performance; she is receiving informal support

• She has had four absences totalling 16 days in the past 12 months

• Your trigger level is 3 occasions or 10 days

• The reasons for the absences is work related stress – she is unhappy

about the observations provided as part of her performance support

• Jane doesn’t feel able to speak to you and texts when she is unwell

What approach would you take and what would you need to consider?


Absence myths

• You can’t take action if they are covered by a Fit Note

• You don’t have to wait until an employee has exhausted sick pay before

dismissing (although check what your policy says)

• You can’t use triggers if the employee is off with a disability

• You can’t dismiss someone if they have a disability

• You can’t dismiss someone if they are suffering from work related stress

• You need to abide by the phased return recommended by OH or GP

• You can’t hold sickness review meetings until they have returned to

work

• You can’t continue to manage the absence if the employee raises a

grievance


Any questions?


Flexible Ways of Working

Sarah Hooton, Browne Jacobson LLP

Sophie Thring & Rachel Mills, Geldards LLP


Flexible Working

• Agenda

– The statutory regime

– Requests for flexible working following periods

of leave

– Flexible working as a reasonable adjustment

– Common issues with flexible working requests


• Since 30 June 2014 the right to request flexible working

has been extended to all (eligible) employees

• Employers must consider requests ‘in a reasonable

manner’

• ACAS code of practice available “Handling in a

Reasonable Manner Requests to Work Flexibly”

Flexible Working


Eligibility

• Request must be made by an employee, not worker

• Any employee can apply, not only those with caring

responsibilities

• Employee must have 26 weeks’ continuous service –

but you may consider requests from employees who

do not meet this criterion

• One application in any 12 month period


Types of changes

Flexible working requests can cover:

• change to hours, e.g. part-time, compressed

• change to times when they are required to work

• change to the place of work, e.g. working from home


Procedure

• Flexible working flow chart


Requests for flexible working

following periods of leave


Returners from leave

• Maternity Leave/Adoption Leave/Shared Parental

Leave

– KIT/SPLIT days

– Use of annual leave

– Discussion of procedures pre-leave

– Indirect discrimination claims


Flexible working as a

reasonable adjustment


The duty to make reasonable

adjustments• Equality Act 2010

• Duty on employer to make reasonable

adjustments to help disabled employees

• The duty arises where a disabled person is

placed at a substantial disadvantage by:

– An employers provision, criterion or practice

(PCP)

– A physical feature of the employer’s premises

– An employer’s failure to provide an auxiliary aid


The duty to make reasonable

adjustments• Employer must know or ought reasonably to have

known that:

– Employee is disabled; and

– Likely to be placed at a disadvantage

• EHRC Code of Practice

• Employment Tribunal will objectively determine

whether adjustment would have been reasonable

in the circumstances


Definition of disability

"A person (P) has a disability if P has a physical or

mental impairment, and the impairment has a

substantial and long-term adverse effect on his

ability to carry out normal day-to-day activities".

(Section 6(1), Equality Act 2010.)


In practice

• Be mindful of the duty

• Beware of requests linked to a medical condition


The EHRC Code of Practice

• Altering a disabled worker’s hours of work or

training

– Additional breaks

– Part-time working

– Different working hours

– Phased return gradual build up of hours


The EHRC Code of Practice

• Assigning the disabled worker to a different place

of work or training or arranging home working

– Relocating workstation to different area

– Working from home

– Working from a different location (if closer to

home or more easily accessible)


Alteration to working hours

• Many reasons why a disabled employee may find

it difficult to comply with normal working hours

– Impaired mobility – travelling to work

– Timetable of carer

– Disability necessitates shorter or more regular

hours



• Case law examples

– Caen v RBS Insurance Services Ltd

• Suffered nervous breakdown and agoraphobia

• Employee did not want to travel to work during

busy periods

• Unreasonable not to allow Employee to start at

6.30am




– Mansoor v SoS for Education

• Required to work fixed hours

• Colitis made it impossible to get to work at

scheduled start time

• Employer could easily have shortened M’s

hours or removed requirement to work fixed

hours




– Baverstock v Sos for Justice

• Disabled by Graves’ disease

• Couldn’t do full duties on full-time basis

• Offered regrading with 2 year pay protection

• Dismissed

• PCP of full-time work but reasonable

adjustment to continue in role on reduced

hours and lighter duties


Working at a different place


– Jasper v Commissioner for HM Revenue

and Customs

• Employee hearing difficulty exacerbated by

background noise

• Recommendation to move to quieter area

• Vetoed by senior manager


Working at a different place


– SoS for Work and Pensions v Wilson

• Employee suffered agoraphobia and panic and

anxiety attacks

• Due to be redeployed

• Employee proposed she worked from home

• Employer rejected proposal

• ET - Failure to make reasonable adjustments

• EAT - home working not practicable and not

feasible for her to do any work from home


Common Issues with flexible

working requests


Conflicting requests

• Flexible working requests from more than one

employee at the same time

• Acas Statutory Code of Practice

– Consider each request on merit

– Consider each request in the order in which they

are received

– Seek a compromise?

• Deal with reasonably and consistently

• Value judgment?


Informal requests

• Request outside the statutory scheme

• Employer’s must still consider such requests as

there may still be liability:

– Female employee, childcare – indirect sex

discrimination

– Time off for medical appointments – disability

discrimination/reasonable adjustments

• Be consistent

• Use statutory procedure for all requests?

• Flexible working policy


Any questions?


Discrimination Update

Sophie Thring & Rachel Mills, Associates,

Geldards LLP


Overview

• Recap of discrimination principles

• Case law update

– Religion and Belief

– Family leave and pregnancy

– Shared Parental Pay

– Disability Discrimination

• Arising from a disability

• Failure to make reasonable adjustments


Discrimination – The Principles

• Equality Act 2010

• Protected Characteristics

– Sex, Race, Sexual Orientation, Age, Disability,

Religion or belief, Gender reassignment,

Marriage and civil partnership*, pregnancy and

maternity*

*Not all types of discrimination claim apply


Discrimination claims

• Direct discrimination

• Indirect discrimination

• Harassment

• Victimisation



• Direct Discrimination

– “because of a protected characteristic, A treats

B less favourably than A treats or would treat

others



• Indirect discrimination

– A applies to B a provision, criterion or practice (PCP)

– B has a protected characteristic

– A also applies (or would apply) that PCP to persons

who do not share B’s characteristic

– The PCP puts or would put persons with whom B

shares the protected characteristic at a particular

disadvantage compared to others

– PCP puts or would put B to that disadvantage

– A cannot show the PCP to be a proportionate means of

achieving a legitimate aim



• Harassment

– General definition

A person (A) harasses another (B) if A engages in

unwanted conduct related to a relevant protected

characteristic which has the purpose or effect of either:

a) Violating B’s dignity; or

b) Creating an intimidating, hostile, degrading,

humiliating or offensive environment for B

– Sexual harassment



• Harassment

– Take into account:

• The Perception of B

• The other circumstances of the case

• Whether it is reasonable for the conduct to have

that effect



• Victimisation

– Take into account:

• Victimisation occurs where a person (A)

subjects another person (B) to a detriment

because either:

• B has done a protected act.

• A believes that B has done, or may do, a

protected act.


Case Update


Imposing Religious Views

• Wasteney v East London NHS Foundation

Trust (EAT 0157/15)

• Ms W employed in a senior position

• Born-again Christian

• Informally warned in 2011 of the need for

boundaries between her spiritual and professional

lives




Trust (EAT 0157/15)

• 2013 junior Muslim employee complained that Ms

W tried to impost her religious views on her – felt

“groomed”

– Invited her to attend Church

– Prayed with her – laying hands on her

– Book about Muslim woman who had converted to

Christianity

• Serious misconduct – Written Warning

• Claim for direct religious discrimination




Trust (EAT 0157/15)

ET Decision: Claims rejected

• Context was religious acts

• Reason was her actions blurred professional

boundaries and placed improper pressure on a

junior employee

• ET satisfied that the Trust would have taken the

same action had Ms W been pressing a non-

religious point of view




Trust (EAT 0157/15)

EAT Decision: Appeal dismissed

• Disciplinary action not discriminatory

• Reason was that she had subjected a subordinate

to unwanted and unwelcome conduct which went

beyond “religious discussion”



• Distinction between disciplining because of beliefs

and the way in which those beliefs are manifested

in the workplace

• Promoted in an inappropriate way


Refusal of leave to attend

religious festivals• Gareddu v London Underground Ltd

• Mr Gareddu had on previous occasions been

permitted to take 5 consecutive weeks’ holiday

during the summer period.

• Declined in this instance

• Permitted to take a maximum of 3 weeks.

• Mr Gareddu had given untrue evidence as to his

attendance at previous religious festivals


Refusal of leave to attend

religious festivalsEAT

• Upheld the ET’s decision to reject the claim of

indirect religious discrimination

• Claimant had been disingenuous about

attendance at previous religious festivals

• Real reason for request was to spend time with

family

• Employer can justify refusal by showing PCP of

limiting holiday was a proportionate means

of achieving a legitimate aim


Indirect discrimination of part-

time worker• Fidessa Plc v Lancaster• A reorganisation of the department where Ms Lancaster worked

was proposed

• Essentially the role of IT Operative or Engineer would be reduced

from 3 to 2.

• The two roles consisted of a manager and an Engineer.

• The role of Engineer required working after 5pm which Ms

Lancaster was unable to do due to a commitment to collect her

daughter from nursery.

• Ms Lancaster did not get the Manager role and did not apply for

the Engineer role due to the requirement to work after 5pm.

• She was dismissed by reason of redundancy.


Indirect discrimination of part-

time workerEAT

• Upheld tribunal’s decision

• PCP to work in the office beyond 5pm

disadvantaged women and the Claimant

without objective justification

• No proper consideration of alternative

ways of working


Same-sex partners & pension

benefits• Walker v Innospec Ltd and others• Mr Walker worked for Innospec Limited from 1980 until 2003,

when he retired

• He had lived with his male partner since 1993, first entering into a

civil partnership in early 2006, and then marrying

• told that his civil partner would receive only a small pension of

approximately £1000 a year

• Pensionable service pre-dated 5 December 2005 when the Civil

Partnership Act 2004

• Married to a woman or subsequently divorced his partner and

married a women she would be entitled to two-thirds pension


Case Law Update -

Discrimination• Supreme Court

– Denial of a pension would amount to

discrimination on the ground of sexual

orientation

• Equalise pension benefit entitlement

• Consider back-payments


Maternity leave & pregnancy –

The Principles• A discriminated against a woman if, in the

protected period in relation to a pregnancy of

hers. A treats her unfavourably-

a) Because of the pregnancy, or

b) Because of an illness suffered as a result of it.


Discontinuing childcare

vouchers during maternity leave• Peninsula Business Services Ltd v Donaldson

UKEAT/0249/15/DM

• PBS operated a salary sacrifice childcare voucher

scheme

• Condition of entry that PBS could suspend

provision during maternity leave

• Ms D considered this condition discriminatory


Discontinuing childcare vouchers

during maternity leaveET decision:

• Childcare vouchers were not remuneration but

a non-cash benefit which PBS had an

obligation to continue during maternity leave

EAT decision:

• Childcare vouchers by way of salary sacrifice

should be regarded as remuneration


Direct sex discrimination and

shared parental payAli v Capita Customer Management Ltd

• Mr Ali was employed by Capita Customer

Management Ltd (Capita) following a TUPE transfer

from Telefonica in 2013.

• Transferring female Telefonica employees were

entitled to maternity pay comprising 14 weeks' basic

pay followed by 25 weeks' SMP. Transferring male

Telefonica employees were entitled to two weeks' paid

ordinary paternity leave and up to 26 weeks'

additional paternity leave which "may or may

not be paid".



shared parental pay• Mr Ali took two weeks' paid leave immediately upon

the birth of his daughter.

• Mr Ali accordingly wished to take further leave to look

after his daughter.

• Eligible for SPL, but that they only paid statutory ShPP.

• Argued should receive the same entitlements as a

transferring Telefonica female employee taking

maternity leave. When his grievance to this effect was

rejected, he issued proceedings in the employment

tribunal, alleging direct and indirect sex discrimination.



shared parental payET

• Upheld the direct discrimination claim

• Mr A could compare himself with a

hypothetical female colleague

• Denial of full pay amounted to less favourable

treatment due to sex

• Hextall v Chief Constable of Leicestershire

Police

• Going to EAT


Discrimination – The principles

• Disability"A person (P) has a disability if P has a physical or

mental impairment, and the impairment has a substantial

and long-term adverse effect on his ability to carry out

normal day-to-day activities"

• Discrimination arising from disability

• Duty to make reasonable adjustments –

Disability Discrimination


Multiple choice test discriminatory

for disabled applicantThe Government Legal Services v Brookes

• Ms Brookes has Aperger’s syndrome

• Applied to join GLS as a trainee lawyer

• Required to sit multiple choice test

• Contacted GLS to ask for an alternative format

• Provide short narrative answers instead

• No alternative format available, extra time for tests at

a later stage provided 3 entry level tests had been

passed

• Ms Brookes did not pass


Multiple choice test discriminatory

for disabled applicant• ET upheld claims of indirect discrimination and

failure to make reasonable adjustments

• EAT upheld the decision of the ET

– ET entitled to reject the argument that the only way

of testing core competency of applicants was the

test

– Short written answers might have presented

logistical problems but these inconveniences did

not outweigh the factors on Ms Bookes’s side.


Discrimination arising from

disabilityPnaiser v NHS England (1) Coventry City

Council (2) [2016] IRLR 170

• Ms P had significant absences because of her

disability over a 2 year period

• P was made redundant by CCC

• Applied for a job with NHS who asked for a reference

• Difficult to judge suitability due to significant absence

and CCC would not employ her

• NHS withdrew job offer

• Ms P claimed discrimination arising from her

disability


Discrimination arising from

disabilityPnaiser v NHS England (1) Coventry City

Council (2) [2016] IRLR 170

ET decision:

• Dismissed claim – no prima facie case of

discrimination

EAT decision:

• Unfavourable reference given partly in consequence

of sickness absence – consequence of disability

• Finding of unlawful discrimination


Working late & reasonable

adjustmentsCarreras v United First Partners Research

(UKEAT/2016/0266/15/0704)

• Mr C suffered a serious bike accident

• Continued to be affected by physical symptoms

• Requests for Mr C to work late – Mr C objected to the

expectation to work late due to tiredness

• Resigned claimed Constructive Unfair Dismissal &

disability discrimination

• Alleged failure to make reasonable adjustments in

relation to the requirement to work long hours.


Working late & reasonable

adjustmentsCarreras v United First Partners Research

(UKEAT/2016/0266/15/0704)

ET decision:

• Expectation but no requirement to work late

• Dismissed reasonable adjustments claim no PCP

EAT decision:

• ET too narrow in its approach to PCP

• Request and expectation to work late amounted to a

PCP


Protecting a disabled employee’s

payG4S Cash Solutions (UK) Ltd v Powell

UKEAT/0243/15

• Mr Powell employed by G4S in a variety of roles since

1997

• Suffered back pain and by 2012 no longer fit for work

• Accepted as disabled under the Equality Act 2010

• New role of “key runner” on existing salary

• Employer sought to make new role permanent but

with a lower rate of pay

• Mr Powell rejected 10% pay reduction and was

dismissed on medical grounds


Protecting a disabled employee’s

pay• Did the reasonable adjustments duty extend to

protecting Mr Powell’s higher rate of pay

indefinitely?

• EAT said:

– It could

– No reason why pay protection could not be a

reasonable adjustment

– Not an “everyday event”

– Part of a package to get an employee back to

work and keep that employee in work


Type 2 diabetes may constitute a

disabilityTaylor v Ladbrokes Betting and Gaming

Limited

• Mr Taylor suffers from type 2 diabetes

• Dismissed and brought claims of unfair dismissal and

disability discrimination

• ET preliminary hearing decided he was not disabled

– No adverse impact on his ability to carry out normal

day-to-day activities

– Condition could be controlled through lifestyle, diet

and exercise


Type 2 diabetes may constitute a

disability

• EAT’s decision

– Position under Metroline

• Type 2 diabetes not a disability

• Effect of impairment on normal day-to-day

activities should be assess by person’s state as

controlled by managed diet

– Failure to consider whether Type 2 diabetes

was a progressive condition


Any questions?


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difficult employment issues, including discrimination update

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