UK Employment Law case updates - January 2018

Latest UK Employment Law case updates - January 2018

1. Perceived disability can amount to direct discrimination 
2. Creaking compensatory rest policies exposed
3. Whistleblowing: Disclosures made solely in self-interest are not protected
4. When "protected conversations" are admissible in evidence

Perceived disability can amount to direct discrimination 

The Chief Constable of Norfolk v Coffey (Employment Appeal Tribunal)

The EAT has upheld a finding of direct disability discrimination in relation to a non-disabled job applicant, whose application was rejected on the basis of perceived disability.

The case involved a serving police officer, who was refused a transfer to another force on the basis that she did not meet the Police National Recruitment Standards relating to hearing. The accompanying guidance stated that if evidence of hearing loss were border-line, then consideration should be given to a hearing function test. Following this guidance, the officer was asked to perform such a test by her employer, which she passed. However, when the hearing loss was identified during the officer's transfer application, her prospective employer failed to follow the function-test recommendation. Her application was rejected on the basis that her hearing was below the acceptable standard. The officer brought claims of perceived disability and direct discrimination, which the ET upheld, finding that the prospective employer had perceived the applicant to have an actual or potential disability which could require future adjustments to her role.

On appeal, the EAT agreed. It was irrelevant that her prospective employer did not consider the officer's condition to be an actual disability. What matters in such cases is whether the decision-maker's perception of an employee's condition meets the test for a disability within the meaning of the Equality Act. In the present case, the prospective employer had clearly rejected the officer's application, at least in part, because it thought that her hearing impairment could well progress to the extent that she would have to be placed on restrictive duties, thereby having a substantial adverse effect on her day-to-day activities. Since these are the features of a disability under the Equality Act definition, the employer had unlawfully treated the officer less favourably based on a perceived disability, even though the officer was not disabled and the employer did not believe her to be disabled.

This is the first case to address perceived disability discrimination directly since it was introduced into UK legislation. It highlights a trap into which employers can unwittingly fall when taking decisions influenced by employees' physical or mental condition. In such circumstances, employers should not focus solely on whether a disability exists in fact. Instead they should examine the rationale behind a particular course of action, and whether they are motivated by factors which, together, meet the definition of disability in the Equality Act.

Creaking compensatory rest policies exposed

Crawford v Network Rail Infrastructure (Employment Appeal Tribunal) 

The EAT has confirmed that where a worker is excluded from the general right to rest breaks under the terms of the Working Time Regulations 1998 ("WTR"), their employer must nevertheless allow them an equivalent period of compensatory rest comprising a single, uninterrupted break of at least 20 minutes wherever possible. Intermittent, short breaks that when taken together over the course of a shift meet this threshold are not permissible as a means of complying with the rest requirement.

Certain "special" categories of workers, including those whose roles require a constant or on-demand presence during shifts, are excluded from the basic WTR right to a continuous 20 minute rest break where their daily working time exceeds 6 hours. Instead, such individuals are entitled, wherever possible, to an equivalent period of compensatory rest. In this case, a railway signalman, who accepted that he fell into the "special" category before the EAT, argued that his employer's practice of only allowing him to take a series of short breaks (each lasting less than 20 minutes) did not meet the requirements of equivalence and compensation under the WTR. Hs employer claimed the practice was necessary to ensure the public health and safety.

The EAT agreed, holding that whilst employers may permissibly expect individuals falling within this "special" category to remain on call during any compensatory rest allowance, it is crucial that this comprises a continuous period of at least 20 minutes wherever possible. Here, a substitute relief signaller could stand in while the claimant took a break, so the employer could not avoid liability on the grounds of impossibility. The EAT also clarified that it was not for employers to deviate from the WTR obligations in order to accommodate their own standards of health and safety.   

Organisations engaging workers in roles requiring continuity of service or production during shifts, or involving foreseeable surges in activity, should review their break policies to ensure that those excluded from the general right to rest breaks under the WTR are benefitting from compliant compensatory rest periods. Although compensation awards for breaches of WTR rights have been limited in practice, Tribunals do have significant flexibility in this area. Employers should therefore proceed with care.

Whistleblowing: Disclosures made solely in self-interest are not protected

Parsons v Airplus International Limited (Employment Appeal Tribunal)

The EAT has held that disclosures made by an employee solely out of concern for her own potential liability were not in the public interest and did not amount to protected disclosures for the purpose of whistleblowing protection. 

The employee was hired as a Legal and Compliance Officer, despite having no previous compliance experience. She raised various queries in relation to her duties and her employer's failure to comply with its legal obligations, and expressed concern that she would face personal liability if her employer did not meet such requirements, even though there was no evidence of any breach. Her employer gave her training and changed her title to address her fears about personal liability. However, the employer continued to receive negative feedback about the employee, and her employment was terminated. She brought tribunal proceedings, alleging automatic unfair dismissal on the grounds of whistleblowing, which the ET rejected on the basis that the employee had not made qualifying disclosures. The employee appealed.

The EAT dismissed the appeal. The employee had not disclosed any information; she had merely checked as to whether minutes were being made in a meeting. She made the enquiry in order to deduce whether she would be personally protected, and so the concern was raised purely in her own interest: she held no belief that it was made in the public interest. The ET's finding that the reason for dismissal was her conduct, and not the disclosures themselves, was also upheld by the EAT.  

Employers should still be wary when approaching such situations, as it is difficult to demonstrate that a disclosure has been made entirely in an employee's own interest. An employee will be afforded protection if their disclosure is made even partly in the public interest, so it will be central to an employer's case when considering dismissal of such an employee to prove that the reason for their dismissal is distinct from any disclosures made.

When "protected conversations" are admissible in evidence

Basra v BJSS Limited (Employment Appeal Tribunal)

Tribunals can hear evidence of pre-termination negotiations in an unfair dismissal claim when the date of termination is in dispute, the EAT has held. This represents a limited exception to the general inadmissibility of 'protected conversations' in unfair dismissal proceedings, by which employers can under certain conditions offer and/or discuss mutually agreed exits in the knowledge that relevant correspondence cannot be presented before a tribunal. 

On receiving complaints about the employee's performance, the employer sent him two letters: one inviting him to a disciplinary hearing, and the other making him a without-prejudice offer of financial settlement in return for the immediate termination of his employment. The employee accepted the second offer by email, stating that this would be his "last day" with his employer, but did not sign a settlement agreement. He did not attend work again following his email, and informed his employer that he was suffering from stress. When he brought a claim for unfair dismissal, his employer disputed the date and manner of termination. The ET held that the employee's initial acceptance email amounted to his resignation, and so he had not been dismissed. It did not take into account any correspondence marked "without prejudice" before this email, ruling that they constituted pre-termination negotiations and were thus inadmissible.  

On appeal the EAT found that, as there was a dispute regarding the date of termination, the tribunal would not be in a position to determine which evidence should be excluded until that dispute was resolved. In order to do so, the Tribunal must consider all the relevant evidence to determine the termination date. Only once this has been decided should any pre-termination conversations be disregarded. The matter was remitted to the ET.

The protection of pre-termination negotiations has limitations. If the parties disagree only on the nature of an employee's termination, evidence of pre-termination discussions will be excluded. However, where the dispute lies in the date of termination, the content of such discussions may be admissible as evidence to decide the termination date. 

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