Articles | Employment bulletin April 2015

This month we report on whether type 2 diabetes may be a disability, the risks of relying on variation clauses and when employers might foresee a stress-induced illness.

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Louise Smyth

Louise Smyth

Are type 2 diabetics disabled?

EAT considers latest case on defining disability

Are type 2 diabetics disabled?

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Under the Equality Act 2010, a person is disabled where they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.  A recent case in the Employment Appeal Tribunal (EAT) considered whether type 2 diabetes could qualify as a disability.

Mr Stoute, the claimant, was a bus driver with type 2 diabetes.  Mr Stoute managed his condition mainly through limiting his intake of sugary drinks to control his blood sugar levels.  The Employment Tribunal (ET) found that Mr Stoute’s diabetes amounted to a disability, but his employer, Metroline Transport Ltd (MT Ltd), appealed to the EAT.

The EAT judge, who had type 2 diabetes himself, felt the ET’s decision was perverse.  In the EAT’s view, abstaining from sugary drinks could not be considered to have a substantial adverse effect on Mr Stoute’s day-to-day activities.  Having regard to guidance issued by the Secretary of State on the definition of disabilities, the EAT noted that while a particular diet might constitute a treatment to be ignored when considering the adverse effects of a disability, it did not regard abstention from sugary drinks as amounting to a particular diet or, by extension, a treatment.  The EAT felt that avoiding sugary drinks was a modification that a person could reasonably be expected to make to prevent impairment of normal activities.
 
While employers may welcome this decision, it is surprising that the EAT did not refer to the specific wording in the guidance relating to diabetes.  The guidance states that the question of whether a person’s diabetes causes a substantial adverse effect “should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet”.  Arguably the EAT focused too much on the perceived ease with which diabetes may be controlled without properly analysing the effects of failing to follow a certain diet.  Its view that avoiding sugary drinks could not amount to a particular diet also seems open to challenge.

Employers should treat similar cases on their specific facts and should not assume that a condition controlled by diet (whether diabetes, a nut allergy or lactose intolerance) cannot be a disability for the purposes of the Equality Act.

Changes to working hours

Can an employer vary working hours without consent?

Changes to working hours

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Broadly speaking, variations to an employment contract are unenforceable unless agreed by both the employer and employee.  Employment contracts will often include clauses that seek to give an employer the right to change an employee’s working conditions without their agreement.  These are commonly called variation clauses and may apply to location or hours of work or they may grant a general power to amend contractual terms.  Historically, tribunals have been tough on employers who amend contracts unilaterally in reliance on broadly drafted variation clauses.  The Employment Appeal Tribunal (EAT) has continued this approach in a recent case involving a change in the working hours of a part-time learning support teacher.

The teacher, Mrs Hart, worked at St. Mary’s School in Colchester.  Although her contract did not specify her working hours, in practice Mrs Hart was working three days per week from Tuesday to Thursday.  The School reorganised its timetable and, in reliance on its contractual variation clauses, asked Mrs Hart to spread her existing working hours over a five day week.  Consultation took place but Mrs Hart did not agree to the changes.  The School unilaterally imposed new working hours; Mrs Hart resigned and brought a claim for constructive dismissal.

The relevant variation clauses in Mrs Hart’s contract were as follows:

Clause 2.2: “During School term time, except as may otherwise be provided for under clause 1.4 ... the Teacher shall work all School hours while the School is in session and at any other time ... as may be necessary in the reasonable opinion of the Principal for the proper performance of his/her duties.”

Clause 1.4: “In the case of a Teacher on a part-time contract the fractional part will be notified separately and may be subject to variation depending on the requirements of the School Timetable”.

Mrs Hart argued that as a part-time employee clause 2.2 did not apply to her.  She also submitted that clause 1.4 was unclear and/or ambiguous and so could not be relied upon as a general right to vary the contract unilaterally.  The EAT agreed.  It considered that clause 1.4 permitted some variation of hours by either party, but not on an entirely unilateral basis as the wording was not sufficiently clear.  It found there had been a fundamental breach of contract by the School.

The EAT’s decision reinforces previous case law in this area; simply stating that the terms of a contract are ‘subject to variation’ will not normally suffice for unilateral amendments.  Variation clauses can be a helpful tool for employers, but must be carefully drafted and provide as much detail as possible regarding the circumstances in which a variation may take place.  Where possible, employers should obtain prior written agreement to any substantive change to an employee’s terms of employment.

Managing stress in the workplace

When is an injury foreseeable?

Stress in the workplace

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Where an employee brings a claim for psychiatric illness caused by stress in the workplace, an employer will not be liable for damages where the employee’s injury was not reasonably foreseeable by the employer.  The question of foreseeability has been explored in a recent High Court case.

The case concerned Mr Easton, the manager of a B&Q store in Romford.  In May 2010, shortly after overseeing a substantial and successful refurbishment exercise, Mr Easton was diagnosed with depression.  Mr Easton ceased work and was treated with medication.  After 5 months’ absence B&Q arranged a phased return to work at a quieter store, but Mr Easton was again signed off with depression. He subsequently brought claims against B&Q.

The Court held that Mr Easton’s initial illness was not reasonably foreseeable by B&Q.  Mr Easton had spent 10 years managing large retail outlets with no history of psychiatric problems, and none of his colleagues thought he was at risk of psychiatric illness.  The Court noted that no other B&Q managers had suffered from similar conditions during the previous decade.  There was no indication from Mr Easton’s background or his working environment that put B&Q on notice of a risk.

In respect of the phased return, the Court accepted that B&Q were now aware that Mr Easton was vulnerable to a psychiatric illness.  However, for Mr Easton to establish employer liability for his illness required him to show that B&Q could have reasonably foreseen an illness caused by work-related stress.

Although Mr Easton continued to take medication, the Court found he had told B&Q he was well enough to return to work and that he wanted to do so.  Mr Easton had sought to rely on the lack of a risk assessment but the Court found that B&Q were entitled to take Mr Easton’s comments at face value and had no obligation to make searching or intrusive enquiries.  B&Q had acted appropriately in allowing an experienced manager to assess Mr Easton’s suitability to return to work.  B&Q also had a policy in place about managing stress, inviting employees to notify them of any symptoms, which Mr Easton had not done.

The decision in this case confirms that employees must jump a high bar to establish that a psychiatric illness caused by workplace stress was reasonably foreseeable.  The ruling is helpful for employers, but stress cases will always turn on their specific facts.  To strengthen their position against similar claims, employers should put in place appropriate policies addressing management of stress in the workplace and ensure that they are properly applied in practice.

Does a constructive dismissal amount to harassment?

EAT provides clear guidance

Does a constructive dismissal amount to harassment?

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In a constructive dismissal claim an employee must show a repudiatory breach of contract, resign in response to that breach, and avoid affirming their contract.  In a harassment claim an employee must show unwanted conduct related to a protected characteristic (such as sex) which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  The Employment Appeal Tribunal (EAT) has recently considered the extent of the overlap between these two types of claim.

The claimant, Ms Wilton, was employed as a director by Timothy James Consulting (TJC).  In July 2012 Ms Wilton raised concerns about the impact on her team of a relationship between Mr O’Connell (another director) and Ms Docker (who worked under Ms Wilton).  During September to November 2012 Ms Wilton was invited to a series of meetings with Mr O’Connell.  At these meetings Mr O’Connell subjected Ms Wilton to tirades of criticism and on one occasion threw a pen at her.  He also accused Ms Wilton of being a “green eyed monster”, alleging that she was jealous of Ms Docker.  Mr O’Connell and Ms Wilton had previously been in a relationship.

In November 2012 Ms Docker left TJC under a settlement agreement after she brought allegations of bullying against Ms Wilton.  Mr O’Connell called Ms Wilton into a meeting and told her he wanted to “draw a line” under the matter and move on.  Ms Wilton asked Mr O’Connell if he believed she had bullied Ms Docker; Mr O’Connell failed to respond and Ms Wilton left the meeting with the impression that he believed the allegations of bullying, even though there had been no proper investigation.  She resigned and brought claims for constructive dismissal and sexual harassment.

The original Employment Tribunal found that Ms Wilton’s treatment was because of her prior relationship with Mr O’Connell and was therefore related to her sex.  It held she had been harassed on three separate occasions, and this had led to her constructive dismissal.  It also found that the constructive dismissal was itself an act of harassment.

JTC appealed against this last element of the decision and the EAT upheld the appeal, finding that a resignation amounting to a constructive dismissal does not fall within the meaning of harassment as set out in the Equality Act 2010.  Ultimately, however, its ruling on this point was purely academic as it still found JTC liable for harassment and constructive dismissal.

The facts of this case underline the importance of handling sensitive workplace disputes with care.  This includes maintaining clear lines of communication and handling all meetings in a calm and professional manner.



Spring refresh for employment law

A re-cap on this month’s key changes

Spring refresh for employment law

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April often sees significant developments in employment legislation and this year is no different.  Here is a quick re-cap of some of the major points to be aware of:

 

  • Shared Parental Leave (SPL) – where a child is born on or after 5 April 2015, a mother now has the right to end her maternity leave early and instead share up to 50 weeks’ leave with her partner in alternating or overlapping blocks.  The right is also available to adopters where a child is placed for adoption on or after 5 April 2015.  The rules surrounding SPL are not straightforward and employers should seek advice if they are unsure how the new system will operate.

 

  • Additional Paternity Leave (APL) – coinciding with the introduction of SPL, the partners of mothers or adopters who return to work early will no longer be able to take APL in respect of children born or placed for adoption on or after 5 April 2015.  The only way for these partners to access extended periods of statutory leave will be to request SPL.

 

  • Parental Leave – working parents may now take ordinary parental leave (not to be confused with SPL) at any point up to a child’s 18th birthday.  The total amount of parental leave available per child remains 18 weeks, with a maximum of 4 weeks’ leave to be taken in any one year.

 

  • Adoption Leave – in respect of a child placed for adoption on or after 5 April 2015, there is no longer any length of service requirement to qualify for adoption leave (previously employees needed 26 weeks’ continuous employment).  In addition, statutory adoption pay is to be calculated on the same basis as statutory maternity pay (i.e. the first 6 weeks’ leave may be paid at 90% of normal weekly earnings with the following 33 weeks’ leave at the statutory rate).

 

  • ACAS Code of Practice on Disciplinary and Grievance Procedures – a revised Code has been published which clarifies that so long as an employee makes a reasonable request to be accompanied at a grievance or disciplinary meeting, they have the right to be accompanied by a colleague or trade union official of their choice.  Employers cannot challenge the specific colleague or trade union official chosen on grounds of reasonableness.

 

For employers who have not already done so, now is a good time to make sure that their staff handbook reflects all these recent changes and that any references to out of date practices and policies have been amended or removed.