Articles | Employment bulletin June 2016

This month we report on cases concerning long-hours culture, offensive language and settlement discussions, plus the tale of an employee dismissed for choosing to stick by her husband.

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David Clay

David Clay

Long hours give rise to discrimination claim

Expecting disabled employees to work late may trigger duty to make reasonable adjustments

Long hours give rise to discrimination claim

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The Equality Act 2010 requires employers to make reasonable adjustments when there is a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage compared with a non-disabled person. Failure to make reasonable adjustments will amount to disability discrimination.

 

In Carreras v United First Partners Research the Employment Appeal Tribunal (EAT) held that an assumption that a disabled employee would continue to work late constituted a PCP triggering the duty to make reasonable adjustments.


Mr Carreras was employed as an analyst for a brokerage firm. At the outset of his employment he regularly worked long hours, often until 9pm. Upon returning to work after a serious accident, Mr Carreras continued to suffer from a number of symptoms such as dizziness, fatigue, headaches and difficulty concentrating. As a result he found it difficult to work late and initially worked shorter hours on his return to work. His employer requested on a number of occasions that he work late and subsequently assumed that he would work late at least once or twice a week, asking him which nights he intended to work late. When Mr Carreras emailed his employer objecting to working late due to tiredness, this gave rise to a heated exchange during which Mr Carreras was told that if he did not like it he could leave.


Bringing a disability discrimination claim, Mr Carreras relied upon the “requirement” to work late as the PCP. His former employer argued that Mr Carreras had only been requested, not required, to work late. However, the EAT recognised that Mr Carreras had clearly felt obliged to work late. The EAT went on to confirm that the purpose of the Equality Act was to protect employees and the phrase ‘provision, criterion or practice’ should be widely construed and an expectation placed upon an employee could therefore constitute a PCP. This case serves as a useful reminder to employers that all working practices, not just contractual terms and/or specific requirements, should be considered in the light of a disabled employee’s circumstances.

Your marriage or your job?

Employee dismissed after sticking by her husband

Your marriage or your job?

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In an unusual case, the Employment Appeal Tribunal (EAT) has delivered its judgment on whether a schoolteacher suffered indirect religion or belief discrimination when she was dismissed for maintaining a relationship with her husband following his conviction for downloading indecent images of children and voyeurism.

 

The case concerned Ms Pendleton, a schoolteacher and practising Anglican Christian. Ms Pendleton’s husband had been a headmaster of another nearby school. Although she would not condone his actions, Ms Pendleton wanted to stay with her husband if he demonstrated repentance. This would be an act consistent with her marriage vows, which she believed to be sacrosanct.

 

However, Ms Pendleton’s employer, Derbyshire County Council, was unhappy with her stance. The Council summarily dismissed Ms Pendleton for maintaining her relationship with her husband, which it believed eroded her suitability to carry out the safeguarding responsibilities of her role. Ms Pendleton brought tribunal proceedings including a claim for indirect discrimination.

 

The EAT found that the Council’s decision reflected a policy of dismissing any employee who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism. Although acknowledging that the policy would put anyone in a loving relationship in a very difficult situation, the EAT held that Ms Pendleton and others with a genuine belief in the sanctity of marriage were placed at a particular disadvantage when compared with individuals not sharing that belief. Although it was open to the Council to objectively justify Ms Pendleton’s dismissal, it failed to provide any evidence. Accordingly the EAT upheld Ms Pendleton’s claim.

 

Although most employers are unlikely to encounter this precise set of facts, the case demonstrates that even a one-off disciplinary decision may amount to a policy or practice if there is evidence that the employer would have treated other staff in the same way. Whenever a policy is applied, employers should consider whether it places certain employees at a particular disadvantage and, if so, be ready to objectively justify the policy, with reference to supporting evidence.

It’s not over ‘til it’s over

When settlement negotiations break down…

 

It’s not over ‘til it’s over

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In broad terms, an employee can bring a claim for constructive dismissal if his employer breaches a fundamental term of his employment contract and he promptly resigns in response. A recent High Court case looked at whether Nigel Gibbs, an assistant manager at Leeds United Football Club, was constructively dismissed by the club during the course of settlement negotiations.

 

Following the departure of another key member of staff, Mr Gibbs had indicated to Leeds that, while he was willing to continue in his current post, he would also be prepared to discuss the termination of his contract. Negotiations commenced but ultimately faltered. Mr Gibbs subsequently found himself with minimal work to do, or work inappropriate for an assistant manager, including being offered “cleaning work at the training ground”. Mr Gibbs was later informed by email that he would no longer have any contact with the first team players and would be working with the U18 and U21 squads. Mr Gibbs saw this as a demotion and reacted by resigning with immediate effect.

 

The High Court upheld Mr Gibbs’ claim for constructive dismissal. It found that an assistant manager in the football league should be involved in the selection of the team, team tactics and training of the first team. The email led to a loss of these tasks and amounted to an intention to refuse to perform the contract or be bound by the essential terms of the contract as it had originally been made. This amounted to a fundamental breach of contract that entitled Mr Gibbs to resign and claim notice pay.

 

The case demonstrates that employers must continue to provide an employee with appropriate work and comply with all their obligations under an employee’s contract during the course of settlement negotiations, even where those negotiations are initiated by the employee. Although relations during such discussions can sometimes become fractured, employers need to be careful not to marginalise employees or treat them unfairly as this could lead to both constructive dismissal and (uncapped) discrimination claims.

Handling fiery outbursts

Do you have to show leniency to disabled employees?

Handling fiery outbursts

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An employer will unlawfully discriminate against a disabled employee if it treats them unfavourably because of something arising in consequence of their disability, unless it can demonstrate that the treatment was justified. A recent decision of the Employment Appeal Tribunal (EAT) has shown that the link between an employee’s treatment and their disability need only be very slight to establish discrimination.

 

The case in question concerned Mr Risby, a paraplegic and wheelchair user employed by a London Borough Council. Mr Risby, who had a short temper which was unrelated to his disability, became incensed after discovering that the Council had decided to hold a workshop at a venue without wheelchair access. He shouted at a junior colleague, Ms Scott, that “the council would not get away with this if they said that no fucking niggers were allowed to attend”. Although Mr Risby was not aware of it at the time, Ms Scott was of mixed race and was understandably upset. Mr Risby’s outburst was also overheard by other staff. He was suspended and subsequently dismissed for harassing Ms Scott and unacceptably breaching the council’s equal opportunities policy. He responded by bringing a claim for discrimination arising from disability.

 

The EAT concluded that if he had not been disabled by paraplegia, Mr Risby would not have been angered by the council’s choice of workshop venue. His misconduct was the result of anger caused by that choice, and his disability was one of two effective causes (alongside his short temper) of that anger and therefore of his misconduct. Accordingly it found that Mr Risby’s dismissal was unfavourable treatment arising out of his disability. The council will still have an opportunity to avoid liability for unlawful discrimination at a future hearing, but only if it can demonstrate that its treatment of Mr Risby was a proportionate means of achieving a legitimate aim.

 

The decision of the EAT in this case shows that any link between an employee’s disability and their treatment by their employer will leave the employer vulnerable to a finding of discrimination. Employers can still take action against a disabled employee for disability-related misconduct, but must be ready to justify their decisions. What is appropriate will depend on the specific facts, but could involve substituting dismissal for a lesser disciplinary sanction in order to demonstrate proportionality.