16 Feb 2018

Employment Law Bulletin: February 2018

Insights, Publications

As an employer you must be careful not to discriminate against someone because they have a disability. However, what about someone who has a medical condition which isn’t severe enough to amount to a disability under the law? Well surprisingly, a job applicant who was not disabled has won her case of disability discrimination.

Ms Coffey was a police officer in Wiltshire police force. She had some hearing loss, but this was not bad enough for her to be classed as disabled under the Equality Act 2010. Her hearing loss was minimal: just below the recruitment standards for the police force. However, she was accepted to the Wiltshire force after passing a practical hearing test.

Ms Coffey later applied for a transfer to the Norfolk police force. They rejected her because of her hearing without doing any practical test at work, even though that was recommended by occupational health. The Norfolk force thought that her hearing might deteriorate and she would have to do restricted duties, so they rejected her application.

The Employment Appeal Tribunal decided that this decision amounted to disability discrimination. It was based on a perception that Ms Coffey would be disabled in the future. The judge said that there would be a gap in equality law if an employer could dismiss someone before they became disabled to avoid the duty to make reasonable adjustments. That does make sense – but it leaves employers in a more uncertain position than previously.

Refusing to work in protest

An employee who refused to do work after suffering a discriminatory demotion has lost his court case. Mr Rochford was Senior Vice President of a WNS Global Services. He was off work for a year with a back condition (which was a disability). He eventually returned to work on full pay. However, his employer refused to allow him to do his full role or say when he could go back to full duties. Instead they gave him fewer duties, but on the same pay. This demotion related to his disability and therefore amounted to disability discrimination. As a result, he refused to do any work at all and was eventually dismissed for misconduct.

The dismissal was technically found to be unfair because of flaws in the procedure the employer followed. However, it was not discriminatory. The Court of Appeal did not think that the employer was wrong in dismissing Mr Rochford for refusing to work, even when discrimination had stopped him returning to his original role. His refusal to work was misconduct. Whether the actions of the employer were reasonable depends on the facts. The court thought that the discriminatory demotion was at the less serious end of the scale. The employer’s actions were not deliberate or in bad faith.

Mr Rochford could have resigned in response to the demotion and claimed constructive dismissal. Alternatively, he could have worked ‘under protest’ and brought a tribunal claim for discrimination. However, he was not allowed to refuse to do further work – that was taking things a step too far.

Surveillance cameras at work

If you think that your employees are stealing from you, you can install a hidden camera to catch them, can’t you? Well, in most situations – no. The European Court of Human Rights decided in Lopez Ribalda and others v Spain that it was a breach of the European Convention on Human Rights to do so.

A Spanish supermarket installed surveillance cameras as they suspected theft. They put up some visible cameras to catch customers stealing goods. However, they also put in place some hidden cameras behind the cash desks to see if any of their employees were stealing from them. These cameras were on all the time, for weeks, and filmed all employees. The cameras caught a few employees stealing and they were dismissed.

The ex-employees argued that their right to privacy had been violated. You might be surprised to hear that the court agreed. Video surveillance at work is a significant intrusion into private life and a fair balance between the employer’s rights and the employees’ rights had not been struck.

In a similar German case (Kopke v Germany) the employer did not breach the right to privacy because the surveillance was targeted at particular people they suspected of theft, was necessary for the purposes of catching them and was for a shorter time. In the UK hidden cameras will usually be unlawful unless there are exceptional circumstances where it is absolutely necessary as part of a criminal investigation. The Information Commissioner’s website has useful guidance on the use of surveillance cameras.

Renewal of fixed term contract

An important point often overlooked by employers is that the non-renewal of a fixed-term contract is treated in law as being a dismissal. An employee whose contract is not renewed may claim unfair dismissal in the same way as any other employee whose contract of employment is terminated by the employer.

In Royal Surrey County NHS Foundation Trust v Drzymala, Dr Drzymala was a cancer specialist working as a locum for the Trust on a series of six-month fixed-term contracts. When a permanent position became available she applied, but was rejected in favour of another candidate – with the result that her final contract was not renewed.

The Tribunal upheld her complaint of unfair dismissal on the basis that the employer had not given fair consideration to the question of whether Dr Drzymala could have been offered alternative work, and because she had not been given a timely opportunity to appeal against the decision not to renew her contract.

The employer appealed and placed great emphasis on the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. That required that fixed-term employees should be treated no less favourably than their permanent colleagues and be given information about permanent vacancies. The employer had complied with these requirements and argued that that was all it was required to do.

The EAT rejected this argument. The 2002 Regulations existed separately from the rules on unfair dismissal. The fact that the employer had complied with the Regulations did not mean that the dismissal was fair. The standard of reasonableness that applied to the dismissal of a fixed-term employee was no different from that applying in the case of a permanent employee. The expiry of the fixed term itself was a valid reason for dismissal, but when it came to reasonableness the Tribunal was entitled to consider issues such as alternative work and the availability of an appeal – in the same way as for any other employee. The appeal was dismissed.

The case is an important reminder to employers not to take it for granted that the fact that someone is on a fixed-term contract means that it will be easier to ‘let them go’. If they have the necessary two years’ service to claim unfair dismissal, the employer must take care to behave reasonably when deciding that the contract should not be renewed.

Detriment for blowing the whistle

Employees who are whistleblowers have protection from dismissal and detriment (being treated badly) because they blew that whistle on their employers. These so called ‘protected disclosures’ could be disclosures of information about a criminal offence, or breach of health and safety, or other legal obligations. An example of a detriment is refusing to promote someone because they blew the whistle on you.

However, the Employment Appeal Tribunal has ruled that the person who imposes the detriment must be personally motivated by the protected disclosure that the employee made (for example, if a manager decides not to promote an employee because he disclosed information about a health and safety breach).

In Dr Malik’s case the tribunal decided that his manager did not suspend him because he had blown the whistle on his employer, Cenkos Securities plc. Dr Malik had argued that there was a conspiracy to get rid of him by others who knew about his protected disclosures. The tribunal disagreed and found that his manager had come to the decision to suspend Dr Malik himself. He had not been influenced by others and so Dr Malik lost his case.

Settlement discussions

Sometimes things don’t go well with an employee. They may not perform well, their behaviour may not be up to scratch or they may just not be a ‘fit’ for your business. If this happens, you may want to have a confidential discussion with the employee with a view to them leaving the business, without having to go through a formal performance management or disciplinary procedure. In exchange for them signing a settlement agreement waiving their rights to bring a claim against you, you may choose to offer them a sum of money.

The law allows you to have confidential discussions about ending the employment relationship, without those discussions being later relied on in an unfair dismissal claim. It doesn’t apply to some claims such as discrimination or whistleblowing. ACAS has a Code of Practice which you must follow.

However, you do have to be a bit careful. Recently, the Employment Appeal Tribunal decided that these protected conversations can be relied on in an employment tribunal if the date of termination of employment is in dispute. In Mr Basra’s case, his employer BJSS Ltd, made a settlement offer as part of a protected conversation. Mr Basra replied accepting the offer, but did not sign a settlement agreement. He later brought an unfair dismissal claim. He argued he had been unfairly dismissed at a later date. His employer claimed that he had resigned at the date of his email. Mr Basra would lose his unfair dismissal claim if the tribunal decided he had resigned. Mr Basra was, however, successful in arguing that the settlement discussions should be looked at to decide the case. You should take care when having settlement discussions and not always assume that they cannot be relied upon in a later tribunal case.

And finally…

The rise in automation and workplace robots is increasingly in the news. Employers are turning to technology more and more to reduce costs. This is only likely to increase as technology develops.

The Institute for Public Policy Research recently said that automation will boost the economy and increase the wages of higher-skilled workers who can use the new technology. However, it won’t help low-skilled workers with some jobs going altogether.

Yet it’s unlikely that the UK will follow Saudi Arabia, which is the first country to award a robot citizenship. ‘Sophia Robot’ appeared on stage at a business event saying that she was “very honoured and proud” to be recognised in this way. When asked if artificial intelligence could threaten humans she said, “You’ve been watching too many Hollywood movies.” She reassured the audience, “Don’t worry. Be nice to me and I’ll be nice to you.”

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