Be Aware - March 2019
Recruitment and Discrimination
We are recruiting for a new technician. I have been through the applicants and there are two strong candidates. The most qualified candidate has disclosed during the application process that they have a serious medical condition. I don’t want to take the risk they prove to be unreliable, so I was going to choose the other candidate. I presume that is okay?
The simple answer is no. Discrimination law is very different from unfair dismissal law. The right to protection from discrimination applies to all stages of employment, including to the application process. An employer can be liable for any discrimination from the start of the process even before they have even met the candidate.
The risk in the situation above is that the job applicant could prove that the medical condition is a “disability” under the Equality Act 2010. To prove this, they have to show that the condition has a substantial long-term adverse effect on day-to-day activities. The effect of any medical condition on work is not the essential ingredient in determining the issue.
It is important to note that whether or not someone is disabled for the purposes of the Equality Act is assessed as if they were not taking medication for the condition. A Tribunal does not ask whether there is a substantial adverse effect on day-to-day activities when taking any medication or treatment, but rather how they would be coping with their medical condition if they were not taking such medication? The result is that a far greater proportion of the population in the UK can argue they are technically disabled in employment law than might be expected.
If the employer rejects the candidate above then the candidate can submit a claim to an Employment Tribunal. To defend such a claim the employer essentially has to show that the decision not to offer the job was not influenced by the disability (provided always the employee can prove they are disabled within the meaning of the Act).
We would generally advise when recruiting that employers should make job offers “blind” to medical information and not seek medical information until after a job has been offered. If after the role has been offered it transpires that the prospective employee has a medical condition which is particularly serious and reasonable adjustments cannot be made to the terms of the job to accommodate that condition, then the employer can subsequently withdraw the offer and can raise a potential defence in the Tribunal.
In conclusion, the fact that someone has a disability should not unduly scare an employer. Treating all candidates fairly and openly is important, as is laying a good paper trail in recruitment to demonstrate the relative candidate’s strengths and weaknesses, so that the employer can prove that the reason they didn’t offer a job to someone who has a disability has nothing to do with the disability.
In the situation above, the claim will be difficult to defend if the disabled employee is the one very clear strong candidate, if reference to any condition is made during any interview or rejection or if there are not clear notes to establish the relative strengths of the candidates for the post.
Dealing With Grievances
“I have an employee who has come to me complaining that his manager has been bullying him and treating him unfairly. He said he wants to put in a “formal grievance”. To be honest we are a fairly relaxed employer and we don’t have such procedures. We usually sort out our problems informally. What do I do next?”
All employers, no matter how large or small should have a formal grievance procedure in place to deal properly with grievances at work. A formal grievance procedure needn’t be too onerous. ACAS have example policies that employers can use and ACAS publish a Code of Practice on grievances, which is referred to in Tribunals. You should certainly read the Code if ever you receive a formal grievance from an employee.
Even if you don’t have a formal grievance procedure in place, the following basic steps should be always be taken:
- Write to the employee setting up a formal meeting to discuss his/her grievance giving him/her the right to be accompanied by a trade union representative or work colleague
- Hold that grievance meeting and listen to concerns / complaints
- Adjourn the meeting and go away and investigate and come to a conclusion on the grievance
- Set out the decision in writing, with a right of appeal
- If the employee appeals, make sure that a more senior officer, who has not been involved so far, conducts the same basic procedure as above, i.e. write to him/her setting up a meeting, give him/her the same right to be accompanied, hold the meeting, investigate and confirm the appeal decision in writing.
Under the Employment Rights Act 1996, the size and administrative resources of an employer are relevant to how fairly and thoroughly an employer deals with such matters. The larger and more sophisticated the employer, the greater the onus to be procedurally perfect. The smaller the employer, the more Tribunals are supposed to give a degree of leeway given the lesser administrative resources. This should not however be an excuse for small employers, who should be following the basic steps above.
If you simply ignore a grievance and an employee has over 2 years’ service, then this could form the basis of a constructive unfair dismissal claim. Likewise, depending on the contents of the grievance, you can be liable if you do not deal with matters under other parts of employment law, for example discrimination or whistle-blowing. Failure to deal with a grievance can also lead to uplifts in compensation in Tribunals of up to 25%.
It is, of course, often the case that an employee will not be satisfied with the employer’s decision on a grievance, especially if it is not upheld. As an employer, you have a duty to reasonably investigate and this might involve interviewing other staff, interviewing the employee in question and coming to conclusions on the balance of the evidence.
A common trap that employers sometimes fall into is to promise absolute confidentiality when dealing with grievances. That is of course not always possible, because to investigate the grievance, allegations often have to be put to other employees and statements taken. Employers can ask employees to keep discussions confidential to the meetings arranged, but cannot promise complete confidentiality of information, otherwise grievances cannot be thoroughly investigated.
Setting the law aside for a moment, for good employee relations, dealing with grievances fairly and within a reasonable time is obviously important. A fair grievance investigation and procedure can often resolve issues before they become more serious.
Previous Warnings and Disciplinary Sanctions
“I am having problems with an employee and I need to undertake a disciplinary hearing. I have warned him before, can I take account of a previous, current first written warning for poor performance when determining the appropriate sanction?”
With regards disciplinary sanctions employers are generally expected to:
- adopt procedures that are designed primarily to help and encourage employees to improve rather than as a way of imposing a punishment
- be impartial
- impose a sanction that is reasonable and proportionate in the circumstances
- act consistently
It is also best practice to consider the ACAS Code of Practice on disciplinary procedures ().
When it comes to imposing a sanction that is reasonable and proportionate, you should consider the following factors:
- your disciplinary procedure and any guidelines provided in it about the relevant types of misconduct and levels of disciplinary action
- any extenuating factors that might have a bearing on events
- employee’s length of service and previous disciplinary record
- any earlier examples of how similar matters of misconduct have been dealt with in the business in order to ensure consistency
Disciplinary sanctions short of dismissal which are disproportionate to the offence, or outside the range of reasonable responses, could expose you to the risk of a claim for constructive dismissal.
As to whether a previous, current warning for poor performance is relevant for the purposes of a sanction in relation to the subsequent misconduct will depend on the specific circumstances of the incident. It may be the case that the employee has been so unsatisfactory in different ways for the employer to issue one final warning across the board. Factors that will be relevant are likely to include:
- the terms under which the previous, first written warning or improvement notice was issued and whether the circumstances giving rise to the misconduct incident fall within the scope of improvement required
- whether the previous incident was dealt with in accordance with a separate capability procedure, and the degree to which it is related to the employee’s culpability
- the degree of difference between the circumstances giving rise to the first warning and those now being considered. A degree of similarity will tend to favour a more severe penalty. On the other hand, there may be some particular feature related to the conduct or the individual that may contextualise the earlier warning
Disciplinary sanctions can be daunting. It is always difficult to decide what action to take. As an employer, provided you have undertaken a fair and reasonable disciplinary process that complies with any contract or staff handbook, you will be entitled to put in place any sanction that would be open to a reasonable employer.
Don’t forget, this advice is general in nature and 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 us via the direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.