Essential HR reading: our top 5 picks for April 2019
We set out details of 5 developments that could have a significant impact on HR practice.
1. Can disability discrimination arise out of a mistaken belief?
The EAT finds no causal connection between employee’s mistaken belief and her disability, so no disability discrimination is found.
When an employee suffers unfavourable treatment because of "something" which arises in consequence of their disability, this is disability discrimination, unless the employer can show the treatment is a proportionate means of achieving a legitimate aim. It is well established that there must be a causal connection (or more colloquially "a direct link") between that "something" and the disability. In this case, the issue was whether there was a causal connection between the warning given to an employee for refusing to obey a reasonable order, and her disability.
Ms Wood worked in a warehouse packing items at a fixed workbench. She suffered osteoarthritis which got worse in cold, damp weather. When her employer changed work practices requiring staff to move benches to "follow the work", Ms Wood refused to work at the end benches near the loading doors as she thought it was colder and damper there. Extensive investigation showed that her fears were unfounded. The employer considered Ms Wood's refusal to obey the instruction was unreasonable and so issued her with the final warning which she considered to amount to discrimination arising from her disability.
The EAT found that because Ms Wood was not actually being required to work in cold, damp conditions, there was no direct link between the warning and the underlying disability, and so there was no disability discrimination.
This case shows that when there is concern that a person with a disability might be adversely affected by a new policy or practice, employers should investigate whether this is the case, rather than just taking the employee's word for it. If the investigation shows that the employee would not be impacted, the employer will be in a stronger position to impose the policy/practice.
Not every case will come down to hard facts. If Ms Wood had been able to show that her judgement was impaired as a result of her disability then the tribunal might have been able to find a connection between her erroneous belief that the benches near the loading bays were cold and damp, and her disability, and that would have meant that the sanction of the warning for her unreasonable behaviour would have amounted to discrimination. Although justification is available as the ultimate defence, it is better not to get to that point at all.
2. Compensation for failure to provide rest breaks
The EAT finds that personal injury damages are available for failure to provide rest breaks under Working Time Regulations 1998 (WTRegs)
When an employer denies a worker their right to a rest break under the WTRegs, a tribunal may award such compensation as it considers "just and equitable" in all the circumstances, having regard to:
- The employer's default in refusing to permit the worker to exercise the right; and
- Any loss sustained by the worker which is attributable to the matters complained of.
Mr Grange was employed as a bus driver. He complained to the tribunal that his employer had denied him his rest breaks. He gave evidence that due to a medical condition involving his bowel, the lack of rest breaks caused discomfort that was more than a minor inconvenience. The tribunal awarded him £750. The employer appealed.
Before the EAT, the employer argued that compensation under the WTRegs did not cover personal injury and even if it did that £750 was excessive. The EAT disagreed and said that compensation for personal injury can be awarded to workers denied rest breaks. The Court of Appeal in Gomes v Higher Level Care Ltd  EWCA Civ 418 had said no more than that injury to feelings awards could not be made in such cases.
This case opens the door for personal injury compensation for breaches of the WTRegs, such as rest breaks. Workers with health conditions are more likely to suffer due to lack of proper work breaks. Make sure all staff (including workers such as consultants and zero hours workers) are receiving their proper work breaks to avoid risk of expensive claims.
3. Employer must have reasonable and proper cause to suspend in response to allegations of misconduct
The Court of Appeal decides that the proper test for determining whether an employer can lawfully suspend an employee to investigate allegations of misconduct is whether the employer's decision was a "reasonable and proper" response to the allegations.
Before suspending an employee, an employer must be satisfied that it has reasonable and proper cause for the suspension in order to avoid breaching the implied term of trust and confidence.
Ms Agoreyo, an experienced primary school teacher employed by the London Borough of Lambeth, was suspended pending investigation following allegations that she'd used unreasonable force towards two 5-6 year olds, including dragging them on the floor and shouting at them. Her letter of suspension made clear that the suspension was a neutral act and was not a disciplinary sanction.
Before the County Court, Ms Agoreyo claimed that the suspension was a breach of the implied term of trust and confidence since suspension was not reasonable or necessary for the investigation to take place. But the County Court found that Lambeth had been "bound" to suspend her after receiving reports of the allegations. As there had been reasonable and proper cause, the suspension had not breached the implied term of trust and confidence.
The High Court disagreed, finding that on the facts suspension had been adopted as the "default position" and was "largely a knee-jerk reaction". Lambeth appealed to the Court of Appeal which found that the High Court had been wrong to interfere with the County Court's finding of facts and draw its own conclusions about the evidence.
The Court of Appeal said that the crucial question was whether there had been a breach of the implied term of trust and confidence and that depended on whether there had been reasonable and proper cause for the suspension. That was a highly fact-specific question and not a question of law.
Whether it is appropriate to suspend is highly fact specific in each case; the employer's decision should be based on what is a "reasonable and proper" response to the allegations. A suspension must not be a "knee-jerk" reaction, but it is also clear that the employer will normally be justified in suspending an employee when faced with serious misconduct allegations, particularly if there are no other roles or locations to which the employee might be deployed until the investigation is completed. To comply with the ACAS Code, when suspending for an investigation, the employer should make clear to the employee that suspension does not amount to disciplinary action.
4. New guidance on women's progression in the workplace: actions for employers
The Government Equalities Office has published an action note for employers on how to promote the progression of women at work. One of the main reasons for the gender pay gap is that women are not progressing as much as their capabilities should allow, and as a result not reaching their full income potential. Supporting female progression is important because it helps to attract and retain talent as well as improving overall business performance.
To help close/ narrow the gender pay gap, the guidance includes recommendations such as:
- Creating an inclusive culture - a workplace which women feel part of
- Supporting women's career development by, for example, creating networking opportunities during the working day and providing training to line managers on how to support people to progress
- Supporting the career progression of part-time workers
- Improving recruitment and promotion processes, such as taking a 'CV blind' approach to recruitment, and identifying high achievers and support their career progression
- Advertising, measuring and evaluating diversity and inclusion policies
5. New Acas guidance on neurodiversity in the workplace
Neurodiversity refers to the different ways the brain can use and interpret information, such as attention deficit disorder, autism, dyslexia and dyspraxia. The new guidance explains how to support neurodiversity in their workplace, highlighting how employers may be obliged to treat certain types of neurodivergence as a disability under the Equality Act 2010 and make any necessary reasonable adjustments.
The guidance sets out steps for managers to take in response to neurodivergence and suggests that, in order to identify what should be done for each individual, an assessment must be made about how neurodivergence affects them in particular. It helpfully sets out different experts who should be contacted if unsure about which adjustments to make.