Be Aware - March 2018
Employer’s knowledge of employee’s disability
The Court of Appeal has confirmed the importance of knowledge in a disability discrimination case.
To be liable for disability discrimination a Claimant would have to show not only (a) that they are disabled within the meaning of the Equality Act 2010 (which has its own specific definition), but also (b) that the Respondent employer knew or ought to have known (i.e. have constructive knowledge) of the disability.
In assessing this question a previous case Gallop v Newport City Council confirmed that an employer cannot simply ‘rubber-stamp’ an unreasoned occupational health assessment of disability and rely upon that to argue it did not know of the disability.
In a case last week Donelien v Liberata UK Ltd the Court of Appeal found that an employer, on the facts before it, should not have been treated as knowing that an employee was disabled when the medical evidence wrongly regarded that employee as not disabled.
In Donelien the Tribunal held as a finding that the Claimant was, in fact, disabled within the meaning of the Equality Act, but that the employer was not liable because they did not know, and could not reasonably have been expected to know, of the disability. In Donelien the employer had taken reasonable steps to assess the employee’s condition and had not simply ‘rubber-stamped’ the occupational health report, as had happened in Gallop. It relied upon an occupational health report stating the employee was not disabled, but also took into account return to work meetings and letters from the employee’s GP in the assessment.
The case is therefore good news for employers who are defending disability claims where the employer did not know and could not reasonably be expected to know the employee’s condition was serious enough to constitute a disability. It confirms that an employer who has taken reasonable steps to assess the employee’s condition and concluded that the employee was not disabled should not be liable, even if a later Judge at a Tribunal takes a different view.
GDPR: Data Retention
The GDPR has effectively rewritten the Data Protection Directive, the mainstay of current data protection regime. From May 2018, the GDPR will have a significant effect on your responsibilities when storing data and the uses you can put data to. All businesses are affected, particularly where they use customer details for marketing purposes or exchange them with other businesses in any way. Failure to get this right can result in fines, or worse.
In this the seventh of our series covering this significant change to the law, we look in more detail at the requirement for reasonableness when storing and retaining data.
There have always been controls over data retention and storage. Under the Data Protection Act 1998 (DPA) businesses were required to retain data only for no longer than necessary for the purpose for which it was obtained and then to destroy it securely.
To comply, businesses were required to review the length of time data was kept considering the purposes for which it was held, and compare it to the information given at the time of collection. In practice few, if any, considered this and many businesses decisions whether to retain data depended on the practical requirements of storing documents and data.
Under the GDPR the position regarding data retention and disposal remains broadly the same. Article 5 (1) (e) states that data should be
“kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed;…”
The position will remain broadly the same after 25 May 2018. Any data retention policies that were suitable for the DPA will likely remain suitable for the GDPR. However, it would be prudent to review your business’s position with regards data retention to ensure that the period for which it is retained is necessary and can be reasonably justified if required.
It will be reasonable to keep FCA regulated data for at least the retention periods required by the FCA. It will be reasonable to retain employee pay records for at least the period required by the HMRC for tax purposes. It will be reasonable to keep any documents related to a contract for at least six years from the date of the contract (and potentially the end of any finance period).
Going forward you should consider what types of data your business collects and the reason for its collection. You will then be able to set a Data Retention Policy that suits your business. Below is a non-exhaustive list of the types of scenarios where personal data will be captured.
Data retention in itself has never been a priority for ICO enforcement, and this is likely to continue under the GDPR. However, retaining too much data for too long does increase the risks of a data breach. That said, businesses will require data for a number of reasons, not least defending themselves in legal disputes such PPI claims or contract disputes. A good Data Retention Policy will not only help reduce the risks of a breach, but also ensure that a business has sufficient information to defend itself and comply with its legal obligations.
The above is a very broad overview of one aspect of the GDPR. The legislation and guidance is still developing in the weeks and months in the run up to their implementation. This advice is general in nature and we will endeavor to keep you informed through regular articles and case studies.
Perceived disability discrimination
In a recent case law development the Employment Appeal Tribunal (EAT) has provided a sobering reminder to employers of the extent of the protected offered by the Equality Act in respect of disability discrimination. In Chief Constable of Norfolk v Coffey the EAT affirmed that it can be direct disability discrimination if a non-disabled job applicant is rejected because of a perception that a condition could become a disability in the future.
In the case the Claimant who was a serving Police Officer in the Wiltshire Police Force applied for a transfer to another force. She had a degree of hearing loss. Norfolk Police rejected her transfer request because of concerns she might end up on restricted duties should her hearing deteriorate. The tribunal found the decision was direct discrimination based upon a perception that the Claimant would be disabled in the future. The hypothetical comparator for disability purposes would be a candidate whose condition was not perceived as likely to deteriorate. The EAT considered there would be a gap in the protection offered by Equality law if an employer wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially could dismiss him or her in advance to avoid any duty to make allowances or adjustments.
The case reminds employers that protection from disability discrimination therefore applies to job applicants (i.e. those who are not yet employees) and those who are not yet disabled within the meaning of the Equality Act.
This advice is general in nature and it will need to be tailored to any one particular situation. As an RMI member you have access to the RMI legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact 0845 305 4230 at any stage for advice and assistance as appropriate.