News round up
We still have some places left for our next Employment seminar which will take place on Thursday 7th March at our offices. At the seminar, Sarah Tahamtani (Partner) and Joanna Dodd (Senior Associate) will help the delegates define and identify a redundancy situation. We will explain what is involved in a collective consultation and how it overlaps with individual consultation and will also discuss the pros and cons of paper-based selection criteria as opposed to a recruitment selection process.
We have officially launched the Leeds 10K Clarion Corporate Challenge 2019!
As loyal supporters of Run For All, we have sponsored the event from the very beginning and we are delighted to be involved again this year.
The Leeds 10K event attracts organisations from across Yorkshire and a wide variety of sectors. The event is known for its fun, friendly atmosphere and we would for you to join us!
In addition, we are always talking about key legal developments, topical issues and what we are up to on our twitter account (@ClarionEmpLaw), so please follow us if you want to be kept up to date between our monthly newsletters.
Understanding a reasonable adjustment
If an employee is disabled, as defined in the Equality Act 2010, there is a requirement from the employer to make reasonable adjustments to overcome any disadvantages or difficulties that arise from the disability.
What is reasonable when it comes to adjustments?
An adjustment that is extremely costly or impractical may be reasonable to refuse, but an employer must show that they have thought carefully about what can be done to help the disabled employee.
This was considered in the recent case of Da Costa v Summer Garden Salads . The employee, Da Costa, suffered from glaucoma and had lost the vision in one eye. She worked in a role preparing food and the employer moved from using dried or frozen onions to using fresh onions, which Da Costa was required to chop. This caused her a lot of pain in her eyes, so she asked if she could be excused this part of the job. Her request was refused and she was eventually dismissed. She was successful in arguing that this was disability discrimination and unfair dismissal. The tribunal found that excusing her from this part of the role (and getting someone else to cut the onions) was a reasonable adjustment.
Another recent case has also emphasised the importance of thinking carefully about reasonable adjustments. In Procter v Haxby Group Practice and John James McEvoy  the employee suffered from problems with her hands which meant that operating a keyboard caused her considerable pain. An occupational health assessment resulted in a recommendation that voice recognition software be installed to reduce her keyboard work.
Although the employer agreed to install the software, they primarily left all the arrangements and sourcing to the employee. There were a number of delays in the installation. The employee eventually resigned and claimed constructive dismissal. In total, she was awarded just under £45,000 for disability discrimination and unfair dismissal. The employer had not taken a proactive approach to reasonable adjustments. It is not adequate to leave it to the disabled employee to resolve.
A further case shows the importance of making reasonable adjustments at all stages of employment. In Valentine v Department of Work and Pensions , the employee suffered from depression and migraines. She was employed on a programme specifically designed for the long-term unemployed and those struggling to get work. In her probation period, she was absent due to her migraines, and when she reached the ‘trigger point’ of four days’ absence she was invited to an attendance meeting. Despite knowing that she suffered from a disability, her line manager continued with the attendance management process, and the employee was dismissed.
The employer was criticised for ‘slavishly following the attendance policy in a blinkered manner’. There is a requirement to make reasonable adjustments if an employee is disabled and this could mean making adjustments to an established policy.
- If one of your employees is disabled or suffers from a physical or mental health condition which could amount to disability, always think quite broadly about the possible reasonable adjustments that can be made.
- Discuss the situation with the employee. However, remember that you cannot make the employee responsible for identifying adjustments. You are responsible for doing this.
- If reasonable adjustments are agreed, you must take responsibility for putting these in place. You cannot delegate this to the employee.
- If the employee suggests an adjustment that you do not think is possible, consider it properly and explain to the employee the reasons why you consider it to be unfeasible.
- Before you decide to dismiss an employee or reject an applicant because there are no reasonable adjustments that can be made, contact us to discuss the situation. It is very important to be certain that there is nothing more you can do before making such a decision.
Providing a written statement of employment particulars
You are required to provide employees with a written statement of their terms and conditions of employment once they have worked for at least one month. This must be provided within two months of them starting work for you. If you do not provide this written statement, and the employee subsequently brings another claim (e.g. unfair dismissal), the employee can add a claim for failure to provide employment particulars and could be awarded up to four weeks’ pay as compensation.
In Stefanko and others v Doherty and Maritime Hotel Ltd , the three employees had all worked as waiting staff for relatively short periods of time. They brought claims that they had not been paid correctly, and also claimed that they had never received written confirmation of their terms and conditions of employment and therefore sought additional compensation.
At the tribunal hearing, two of the three employees were awarded the additional compensation, but the third was refused because she had only worked for six weeks. However, on appeal, the Employment Appeal Tribunal ruled that this was wrong. The employee had worked for more than a month, so she was entitled to receive a written statement (even though she had left within the timeframe that the employer had to provide the statement).
- It is always best to issue employees with a written statement of terms and conditions of employment as soon as they start work, so that there is no confusion.
- If you do not provide the written document on day one of employment, aim to get it to the employee within their first month of employment.
- If the employee leaves within two months, but after one month, of employment, make sure that you still issue the document.
- Note that, from 6 April 2020, there will be a requirement to provide the written statement from day one of employment.
The need for a full investigation
Before dismissing an employee, there must be a full investigation. Sometimes this is difficult - particularly when there is a lot of evidence going back over some years. However, the investigation must be sufficient to be able to substantiate any allegations that are made, and to explain to the employee how you have reached the conclusion that dismissal is appropriate.
In Brough v Sheffield Teaching Hospitals NHS Trust , the employee worked as a Security Officer. A group of security staff raised a collective grievance which was submitted, and a consultant conducted some initial interviews to explore the issues raised. The staff then withdrew the grievance, but the employer decided to consider whether the grievance was malicious. After a series of meetings and discussions, the employer concluded that the grievance was malicious and Brough (who had written the grievance) was dismissed for gross misconduct.
This was an unfair dismissal. The issues had not been thoroughly investigated, the dismissing manager did not explain why the situation was gross misconduct and there was no explanation of what other sanctions had been considered.
- Always investigate a matter thoroughly before deciding whether to dismiss.
- The investigation should be sufficient to be able to explain the facts to the employee, and to explain how these facts have led to the conclusion that dismissal is appropriate.
- Alternatives to dismissal should always be considered.
Consider the full situation before deciding to dismiss
If an employee does something which appears to be gross misconduct, it could certainly be a fair outcome to dismiss the employee. However, before making that decision, it is important to consider all of the circumstances.
In Aquatronic Group Management Ltd v Mace , the employee lost his temper with a colleague and talked to him in a way that amounted to bullying. This was considered to be gross misconduct and the employee was summarily dismissed. However, he successfully argued that this was an unfair dismissal because regard was not given to his (1) 27 years’ service, (2) the fact that he accepted that his behaviour was unacceptable and (3) he had sought help for the stress and anxiety he was feeling. The Tribunal held that the decision to dismiss was not in proportion to what had happened. In addition, it was noted that the appeal only lasted 14 minutes and did not do enough to reconsider the decision.
- If an employee has long service, it does not mean that it would be inappropriate to dismiss. However, this should be taken into consideration when deciding what action to take – particularly if the service is long and unblemished.
- If an employee is contrite and accepts what they did was wrong, this should also be taken into consideration as potential mitigation.
- An appeal must not just be a ‘rubber stamping’ of a decision to dismiss. It must be a proper, reconsideration of the issues.
A final word - Let's talk about Brexit!
Every conversation at the moment seems to involve the "B" word. We still don't know whether we are facing a no deal Brexit, a hard Brexit or a soft Brexit. This uncertainty means many businesses are just continuing as normal and hoping it might not happen.
However, there are some things that businesses can do to prepare (whenever it actually happens).
We list below a selection of blogs that we have published in the last few weeks and there are plenty more available on our website.
- Skilled recruitment - Brexit immigration controls ‘a serious threat’ to the UK health and social care sector
- Brexit - Are you ready for the B-day?
- UK GDPR following Brexit
- What does the current EU Withdrawal Agreement mean for owners of EU Trade Marks and Community Designs?
- Operating cash flow - Don’t mention the “B” word