Latest Employment Law case updates - Frontline Edition 2 2020

By Tim Spillane, Elizabeth Lang, Alison Dixon, Ian Hunter

02-2020

1. Interpretation of "long-term" effect of a disability under the Equality Act

2. Employer not liable for damage to whistleblower's reputation caused by attempts to "set the record straight"

3. Confirmed: employers can enhance maternity pay and not shared parental pay

4. EAT decides that limited substitution right does not preclude worker status

5. Reasonable adjustments: a one-off decision is not a provision, criterion or practice


1. Interpretation of "long-term" effect of a disability under the Equality Act

Tesco Stores Ltd v Tennant UKEAT/0167/19/00

The Employment Appeal Tribunal ("EAT") has held that to claim disability discrimination, a claimant must show that their condition had a "long-term effect" at the time of the alleged acts of discrimination.

The claimant was off work sick from September 2016 as a result of depression. She brought a claim for disability discrimination against her employer a year later, alleging discriminatory acts which took place between September 2016 and September 2017.

To qualify as disabled for the purposes of the Equality Act 2010, a claimant must have an impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day-to-day activities. An impairment is "long term" if it has lasted for at least 12 months or is likely to last for at least 12 months. The Employment Tribunal found that the claimant's condition met this requirement as it had lasted for 12 months by September 2017.

However, the EAT overturned this finding, holding that it was necessary to determine whether the definition of disability was satisfied at the time of the discriminatory acts (i.e. from September 2016), not at the time the claim was submitted. The claimant was unable to show that her condition was long term at the relevant time and her claim therefore failed.

This ruling confirms that the question of disability must be determined by reference to the circumstances of the claimant at the time of the alleged discrimination. In cases where a condition has not lasted for 12 months at the time of the alleged discrimination, medical evidence will be required to determine whether it is likely to do so.


2. Employer not liable for damage to whistleblower's reputation caused by attempts to "set the record straight"

Jesudason v Alder Hey Children's NHS Foundation Trust [2020]

The Court of Appeal ("CA") has upheld an Employment Tribunal's decision to reject an employee's claim that his former employer's attempts to publicly "set the record straight" about his allegations amounted to detrimental treatment on the ground that he had made protected disclosures.

The claimant was a surgeon who had made disclosures to different parties, including the media, about alleged malpractice at his former employer NHS Trust. In trying to mitigate the impact of the allegations, the Trust made inaccurate statements, in a variety of internal and external communications, that the employee's complaints were completely unfounded. This caused harm to the claimant's reputation.

However, the CA held that the detriment caused to the claimant was not on the ground that he had made protected disclosures. The Trust's motivation had not been the protected disclosures themselves, but rather the desire to minimise the harm caused to its own reputation by the claimant having put adverse, and in part, misleading information about it into the public domain. The claimant's claim of whistleblowing detriment was therefore rejected.

Although this case clarifies that an employer can seek to defend its reputation against bad publicity arising from a whistleblower's disclosures, employers should still use extreme caution when responding to protected disclosures. Action of this type, which disadvantages the whistleblower, will almost certainly be added to the list of detriments alleged to have been caused by the protected disclosure, and the burden will be on the employer to prove otherwise.


3. Confirmed: employers can enhance maternity pay and not shared parental pay

Chief Constable of Leicestershire Police v Hextall

In a decision previously reported here, the Court of Appeal ("CA") held that it is not discriminatory for an employer to pay enhanced maternity pay to women on maternity leave and not to enhance pay for shared parental leave. The Supreme Court has now refused permission for a further appeal, meaning that the CA's decision remains binding, providing welcome clarity and certainty for employers.


4. EAT decides that limited substitution right does not preclude worker status

Stuart Delivery Ltd v Mr Warren Augustine UKEAT/0219/18/BA

In another decision on worker status, the Employment Appeal Tribunal ("EAT") has decided that a courier's right of substitution did not count as an unfettered right of substitution and therefore did not undermine the Tribunal's finding that the claimant courier was a worker. Consequently he was entitled to bring claims for unlawful deductions from wages, holiday pay, breaches of minimum wage legislation and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The claimant worked as a courier for a technology platform connecting "courier partners" with "clients" or "users". Courier partners were able to sign up for three-hour delivery slots. The claimant was paid a minimum of £9 an hour during the slot (with some conditions), and if he wanted to cancel, his slot would be released to a pool of other approved courier partners. If no other courier partner accepted the slot, then the claimant would remain responsible for completing the deliveries assigned to him during the slot.

The question of whether there is a requirement to perform work personally is a key element of the test for worker status. A genuine, unfettered, right of substitution is inconsistent with personal service and therefore precludes worker status. In this case the Employment Tribunal held that the claimant did not have a genuine unfettered right of substitution, mainly because he had no control over who would take a slot he could not complete, and if no one took it then he would still be required to complete the jobs assigned during the slot. The EAT agreed with the Tribunal.

Following on from the Supreme Court's 2018 decision in Pimlico Plumbers, this case provides further helpful clarification of the way in which limitations on a contractor's substitution rights will be viewed by the courts, and the need for genuinely unfettered substitution rights to defeat a claim of worker status. This has clear implications for those businesses using "gig"-type labour: exercising control over who provides the services is a clear indicator of worker status.


5. Reasonable adjustments: a one-off decision is not a provision, criterion or practice

Charles Ishola v Transport for London [2020] EWCA Civ 112

When bringing a claim of indirect discrimination or failure to make reasonable adjustments for a disability, the claimant must show that the employer operated a provision, criterion or practice ("PCP") that put them at a particular disadvantage when compared to someone who is not disabled. The Court of Appeal ("CA") has decided that a one-off act or decision, such as a failure to investigate a grievance, will not necessarily amount to a PCP.

The claimant employee raised several grievances whilst on sick leave due to a disability. He was subsequently dismissed from his job without those grievances having been heard. The claimant alleged that the employer had operated a PCP of requiring him to return to work without properly dealing with his grievances, which placed him at a disadvantage when compared to others without his disability, and had failed to make reasonable adjustments to eliminate that disadvantage.

The CA dismissed the claimant's argument that all one-off acts and decisions qualify as PCPs. The CA explained that Parliament specifically chose the words "provision, criterion or practice" rather than "decision" or "act" and said that although a single one-off decision or act could be a practice, this was not necessarily the case. Importantly in this case, it was not a practice of TFL to not investigate grievances and there was nothing to indicate that TFL would make such a decision again. On that basis, the decision not to investigate was not a PCP.

Although this case clarifies that one-off acts are not necessarily PCPs, if the evidence had suggested that TFL could have made the decision not to investigate again or that it had made similar decisions in respect of other employees, a PCP would be more likely to have been made out. Employers should in all cases ensure that grievances are properly investigated and, where possible, resolved swiftly.