Frontline UK - April 2018 - case updates

Latest UK Employment Law case updates - April 2018

  1. Injured feelings irrelevant under the Working Time Regulations
  2. How to give opinionated references
  3. Pre-cancerous condition a disability under the Equality Act
  4. Long hours culture can trigger disability discrimination 
  5. Managing transgender employees

Injured feelings irrelevant under the Working Time Regulations

Gomes v HigherLevel Care Limited (Court of Appeal)

The Court of Appeal has confirmed that compensation for ‘injury to feelings’ cannot be awarded where an employer provides inadequate rest breaks under the Working Time Regulations 1998.   

Soon after the termination of her employment, the Claimant filed a claim against her ex-employer alleging that it had failed to allow her the rest breaks to which she was entitled under the Working Time Regulations ("WTR"). She alleged that this had damaged her health, well-being and argued that her remedy should therefore include an element to reflect her injured feelings. The Employment Tribunal held that her WTR rights had been infringed, but considered it had no power to make an award in respect of this non-pecuniary head of loss. The EAT agreed, but the Claimant pursued a further appeal.

The Court of Appeal rejected her appeal. Whilst the WTR does confer discretion on tribunals to award compensation they consider ‘just and equitable’ for non-compliance, their   considerations should be limited to the extent of the employer’s default and the worker’s loss, rather than injury to feelings. Failing to permit sufficient rest breaks is best characterised as a quasi-breach of contract, entitling a Claimant to compensation to reflect the additional hours for which they, in effect, will have worked without additional payment.

This decision provides helpful clarity on the remedies available for direct WTR breaches. However, it does not rule out the possibility of injury to feelings awards in the context of broader claims relating to working time. For example, employees  suffering a detriment for seeking to assert their WTR rights may be entitled to such an award on the basis that this is a statutory tort analogous to discrimination for which injury to feelings awards are available.

How to give opinionated references

Hincks v Sense Network Ltd (High Court)

The High Court has held that where a reference contains opinions founded on the outcome of previous investigations into the relevant employee’s conduct, the referee need not inquire into the procedural fairness of those investigations in order to avoid claims for negligent misstatement.  

Here, the Claimant brought a claim for negligent misstatement against his ex-employer in relation to an employment reference which included critical comments based on the outcome of internal investigations into his conduct during employment.  He claimed that these ‘misleading’ comments flowed from a process which was an ‘inadequate sham’ and that a referee’s duty of care requires consideration of both the adequacy and procedural fairness of any investigations on which the contents of a reference depend.

The High Court noted formidable difficulties with the Claimant’s argument and dismissed his claim. Above all, it recognised that such a detailed, retrospective inquiry by a reference-writer, in particular where the reference request is made months or years after an investigation, would either be impossible (due to a lack of documentation or staff with relevant knowledge) or impose a disproportionate burden on employers. 

In fact the scope of a reference-writer’s duty of care is more limited and further analysis of procedural fairness is only necessary where there is evidence of obvious errors or other ‘red flags’ which may reasonably prompt further enquiries. However, the Court noted that this did not give employer’s free rein when including opinions in references, which in all cases requires: (i) objective and rigorous assessment; and (ii) the taking of reasonable care to satisfy itself that the basis for any opinion has a proper and a legitimate basis. Steps must also be taken to ensure that any reference is not misleading either by virtue of any omission or by implication, nuance or innuendo.

This case highlights the issues employers can encounter when willing to provide references which go further than simply setting out factual particulars of employment. Where an employer’s policy allows this, it would be prudent – in line with defined retention periods - to retain sufficient records to justify the opinion given.

Pre-cancerous condition a disability under the Equality Act

Lofty v Hamis (t/a First Café) (Employment Appeal Tribunal)

The EAT has found that an employee with a pre-cancerous form of melanoma was disabled for the purposes of the Equality Act 2010 and cautioned employers against drawing artificial distinctions between different types of cancer, or those at different stages, when considering the issue of deemed disability.

The Claimant was dismissed following a series of absences, a number of which were directly related to her diagnosis of and treatment for a pre-cancerous lesion, which is a type of the earliest stage of a skin cancer called melanoma. She claimed that her dismissal was an unlawful act of disability discrimination, relying on provisions under the Equality Act 2010 (“EqA”) which automatically deem those with cancer to be disabled. However, the employer contended that her condition was not cancer in the true sense because it was at an early stage, could not spread to other body parts and was therefore not invasive. The Employment Tribunal agreed with this assessment, finding that as the Claimant did not have an actual cancer diagnosis, he could not be deemed disabled. The Claimant appealed. 

The EAT allowed the appeal and criticised the ET’s reasoning on this point. The medical evidence before it had shown that the nature of the Claimant’s in situ melanoma meant there were cancerous cells in the top layer of her skin, and that this should simply be considered a particular stage in a cancer’s development. The provisions which deem cancer to be a disability from the point of diagnosis under the EqA were intended to avoid uncertainty and so make no distinction between categories of cancers, or those at different stages. A broad, factual approach which is specific to each condition is therefore necessary. The EAT noted that whilst pre-cancerous conditions may not always necessarily equate to cancer, the evidence before it here required the ET’s original decision to be set aside. 

Employers should therefore be extremely cautious before concluding that an individual with a pre-cancerous condition should not benefit from deemed EqA protection against disability discrimination. Strong medical evidence would likely be needed to show that such a condition does not constitute cancer. Sensible employers would be well-advised to permit reasonable time off for those suffering from cancer – regardless of its stage or type – to attend consultations and procedures, in accordance with their duty to make reasonable adjustments.

Long hours culture can trigger disability discrimination 

United First Partners Research v Carreras (Court of Appeal)

The Court of Appeal has held that an employer's expectation that its employees work long hours may amount to a provision, criterion or practice ("PCP") under UK discrimination legislation, in respect of which it is required to make reasonable adjustments when this arrangement risks putting a disabled person at a substantial disadvantage. 

The Claimant had typically worked 14 to 15 hour days in his role at a brokerage firm. On his return to work after a serious bike accident, he continued to suffer from related physical symptoms, such as dizziness, fatigue and headaches, which inhibited his ability to concentrate and ultimately return to his customary working pattern. Nevertheless, he soon came under pressure from senior management to do so. When the Claimant objected to this expectation, he was reprimanded in front of colleagues. He resigned in response and initiated claims for unfair constructive dismissal and disability discrimination.

On the latter point, the ET accepted that he was disabled for the purposes of the Equality Act 2010 ("EqA"), but did not consider that a mere expectation to work long hours would constitute a PCP in respect of which reasonable adjustments should be made. The EAT overturned this on appeal: (i) criticising the ET's narrow and rigid approach, which equated a PCP with a strict requirement; and (ii) noting that an expectation may often be interpreted as a requirement in the employment context because of the subordinate nature of the relationship. The CA agreed with the EAT, on broadly similar grounds.

This decision confirms, once again, that workers do not need to show that a workplace practice is a strict requirement in order for it to constitute a PCP under UK discrimination legislation. Employers should adopt a broad approach to this concept, and consult carefully with staff who may suffer from health or disability problems to assess reasonable adjustments that could be made to their working arrangements, whether these are express instructions or perceived expectations.

Managing transgender employees

Miss A de Souza E Souza v Primark Stores Ltd (Employment Tribunal)

Employers who fail to preserve the confidentiality of transgender employees may be held vicariously liable for gender reassignment discrimination. 

A transgender woman applied for a job as a retail assistant with the Defendant. She referred to herself as her female name on her application form and was informed she would be able to use this name on her uniform badge, but that her official (male) name from her passport would be required for payroll purposes. When she began work, the employee was given a name badge with her male name on it and the daily rota also referred to her by her birth name. As a result of the employer's failure to protect the employee's privacy, other staff ridiculed and bullied her for her transgender status (saying, amongst other things, that she had "evil inside her" and consistently referring to her as a man). She subsequently raised grievances but did not receive outcomes from her employer, and she resigned, treating herself as constructively dismissed.

The Employment Tribunal agreed that the employee was constructively dismissed and that the employer was vicariously liable for direct gender reassignment discrimination for failing to deal with the matter appropriately. The employee was awarded £25,000 in respect of injury to feelings, in addition to compensation for loss of earnings and the Employment Tribunal made various recommendations for managing the employment of transgender staff in future. 

Although this is only a first-instance decision, it provides clear guidance on what is expected from employers of transgender employees.  As a minimum, policies should be established for preserving the privacy of transgender employees and in this case the Tribunal even suggested that specialists be instructed to help formulate such a policy.

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