Articles | Employment bulletin January 2017

January can be a tough month, so it seems fitting to report on workplace stress and rest breaks!  We’ve also got an update on gender pay reporting, plus 5 things you may have missed in 2016.

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David Clay

David Clay

Does workplace stress count as a disability?

Employers must be wary of anti-discrimination law

Does workplace stress count as a disability?

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When performance, misconduct and other workplace disputes occur it is common for the employees involved to be signed off with stress. These employees will qualify as disabled and be protected from discrimination if they can show they have a 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) offers helpful guidance on when stress might amount to a disability.

 

The case concerned Mr Herry, a design and technology teacher, who was on long-term sick leave due to workplace stress. Mr Herry brought claims alleging disability discrimination by his employer, relying on stress (and his long-standing dyslexia) to establish a disability. An employment tribunal determined he was not disabled and Mr Herry appealed.

 

The EAT upheld the tribunal’s decision. Focusing on stress, it echoed the tribunal’s findings that Mr Herry’s stress was largely a result of unhappiness about what he perceived to have been unfair treatment and that he had provided little or no evidence that his stress had any effect on his ability to carry out day-to-day activities. It held that Mr Herry had failed to establish that he was disabled as he did not establish a mental impairment nor the requisite substantial long-term adverse effect.

 

The EAT explained that there is a distinction between a clinical mental impairment and what is simply a reaction to life events. It indicated that Mr Herry’s case fell into the latter category and that while his reaction to events at work had become entrenched this did not amount to a mental impairment.

 

Employers will welcome this decision, which confirms that the burden rests with employees to show that their work-related stress has a substantive and long-term adverse impact on their day-to-day activities. The decision also suggests that without appropriate supporting evidence, a doctor’s note referring to ‘stress’ will not on its own be sufficient to establish a disability. However, employers should still be proactive when an employee is on long-term sick leave due to stress. Maintaining an appropriate level of contact and obtaining a medical report will help employers assess the practical impact of an employee’s stress and whether or not it may be sufficiently serious to qualify as a disability.

Do employers have to force workers to take breaks?

Regulations can be infringed even where there is no express request for a break

Do employers have to force workers to take breaks?

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The Working Time Regulations 1998 (WTR) provide that workers working more than six hours per day are entitled to a rest break of at least 20 minutes. If workers are refused this right they can bring a claim in the Employment Tribunal.

 

The Employment Appeal Tribunal (EAT) recently considered what amounts to a “refusal” of a break for the purposes of bringing a claim.

 

Mr Grange was employed by Abellio London (Abellio) as a relief roadside controller. Mr Grange was contracted to work an 8½ hour day with a half hour unpaid lunch break. The nature of Mr Grange’s role made it difficult for him to fit his lunch break into his working day. In recognition of the practical difficulties of fitting in a break, Abellio emailed Mr Grange stating that he would now work 8 hours straight and leave half an hour early. Mr Grange subsequently issued a claim in the Employment Tribunal (ET) alleging an infringement of his WTR rights.

 

The ET held, following past case law, that Abellio’s email did not amount to a “refusal”, as Mr Grange had not expressly asserted his right to a break and been refused permission to take it. Mr Grange appealed the decision.

 

The EAT upheld Mr Grange’s appeal, finding that a claim for “refusal” to permit rest breaks can be brought where the employer fails to make provision for such breaks, even if the worker does not expressly request them.

 

Employers should ensure that their working arrangements allow for their workers to take sufficient rest breaks and that, whilst they cannot force workers to take breaks, their policies and procedures proactively encourage the practice.

Update on gender pay regulations

 

Are you prepared?

 

 

Update on gender pay regulations

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In March 2016 we reported on draft regulations requiring large employers to disclose their gender pay gap (read more). In response to feedback, the government has now published revised draft regulations. Here are some of the key points to be aware of:

 

  • The snapshot date. The date when the snapshot of pay data needs to be taken is 5 April each year, starting in 2017 (not 30 April, as originally suggested). The first gender pay gap report must then be published by 4 April 2018.

 

  • Which companies need to report? The obligation to prepare a gender pay gap report will apply to each corporate entity with at least 250 employees. This could mean a group of companies will have only some of its entities covered, or that the whole group could fall outside of scope if it does not have any single entity with 250 or more employees. However, large corporate groups may have to produce separate reports for multiple entities.

 

  • Who counts as an ‘employee’? Both employees and workers will be covered and those on zero-hour contracts may also be included. The government has recognised the difficulties employers may face in gathering data for workers who are not in their normal payroll systems and the draft regulations now exempt employers from reporting on workers where it is not ‘reasonably practicable’ to obtain relevant data for them.

 

  • ‘Full-pay relevant employees’. In calculating gender pay gaps and pay quartiles, employers are now required to base their calculations on ‘full-pay relevant employees’ only. This means employees receiving reduced pay due to maternity, paternity or other types of leave will be excluded from these calculations. The amendment should ensure an employer’s headline gender pay gap is not artificially distorted by such absences.

 

  • Enforcement. Guidance to the revised regulations states that the Equality and Human Rights Commission will be able to take enforcement action, but the Commission itself has questioned whether it has the necessary powers and resources to do this. Most employers will, in any event, feel compelled to comply in order to avoid adverse publicity and the potential impact on recruitment of staff.

 

This note is only intended as a brief update and does not cover all of the changes introduced. Employers should review their obligations and preparations carefully and take advice on any difficult issues (such as bonus pay, non-cash awards and workers with variable hours) in good time. Employers should also take advice on ensuring that the narrative accompanying their figures places them in context and reflects them in the best possible light.

5 things you may have missed in 2016

The key decisions summarised 

5 things you may have missed in 2016

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It seems likely that 2016 will live long in the memory as the year of political earthquakes on both sides of the Atlantic which confounded experts’ expectations. Given the wall to wall media coverage of the EU referendum and US presidential election, we can understand if the year’s more noteworthy employment law news may have slipped under your radar. So in case you missed them, or are in need of a recap, here is our pick of five of 2016’s most eye-catching employment cases.

 

1) Can you ban your staff from speaking foreign languages at work?

 

In January (read more), we reported on a case where an employee was asked not to speak Russian at work and brought a race discrimination claim. Her employer had suspicions about her behaviour and feared she may have been an undercover activist.

 

The Employment Appeal Tribunal (EAT) held there had been no discrimination as the request not to speak Russian was related to her suspicious behaviour and not her nationality. The case turned on its facts, but the decision showed that employers may be able to ban foreign languages in certain (limited) circumstances.

 

2) The holiday pay saga rolls on…

 

In February (read more) and October (read more), we reported on the decisions of the EAT and Court of Appeal respectively in the long-running holiday pay case of Lock v British Gas. Mr Lock earned 60% of his pay as commission and complained that his holiday pay was calculated by reference to his basic salary only.

 

Most recently the Court of Appeal confirmed that commission should be included in holiday pay, but narrowed the scope of previous decisions and refused to give practical guidance on how to calculate the commission element of holiday pay. The case seems certain to be appealed again to the Supreme Court in 2017.

 

3) Can employees get away with ‘pulling a sickie’?

 

In April (read more), we reported on the case of an employer who dismissed an employee it believed was fraudulently claiming to be sick, resulting in the employee bringing an unfair dismissal claim.

 

The EAT stated that an employee who “pulls a sickie” is committing a fundamental breach of contract. However, it confirmed that as with all misconduct dismissals, an employer must have a genuine belief in the misconduct, have reasonable grounds for holding that belief, and have conducted a reasonable investigation in order for the dismissal to be fair.

 

4) Pay protection can be a reasonable adjustment

 

In September (read more) we reported on the case of a disabled employee who argued that his employer should not have proposed a cut to his salary after his transfer to a less demanding role for health reasons.

 

The EAT accepted the employee’s argument. It held that maintaining pay was a reasonable adjustment in the circumstances, and noted that making adjustments will often incur costs for employers.

 

5) And finally… don’t forget Uber

 

Although we reported on the Uber case as recently as November (read more), a summary of 2016 employment highlights would not be complete without it. As was widely reported in the press, an Employment Tribunal held that drivers who accept work via the Uber app have worker status and are not self-employed.

 

The implications are substantial, not only for Uber, as their drivers will now benefit from paid annual leave, the minimum wage and whistle-blower protection, but also for the ‘gig economy’ as a whole. Uber are appealing the decision, but companies with similar business models should take stock.