Legal Update - March 2016
Disability Discrimination and Reasonable Adjustments
Should the duty to make reasonable adjustments under s.20 of the Equality Act be abolished? No, held the Court of Appeal in Griffiths v Secretary of State for Work & Pensions.
The Appellant was an administrative officer who suffered from post-viral fatigue and fibromyalgia. She asked the Respondent to withdraw the warning issued after a 66-day absence from work, mostly attributable to her disability, and to modify the policy for the future so that she could have longer periods of absence without sanction than would be permitted to a non-disabled employee. The Respondent refused, and the Appellant complained of a failure to make reasonable adjustments required under the Equality Act.
The provision, criterion or practice (PCP) relied on was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” The employment tribunal and EAT felt bound by the perplexing decision of the EAT in Royal Bank of Scotland v Ashton to hold that the PCP did not put the Appellant at a disadvantage compared with those who were not disabled, because a non-disabled employee absent for a similar period would have been subject to the same process. Hence no s.20 duty arose.
The trouble with Ashton was that it abolished the duty to make reasonable adjustments at a stroke. If the correct comparator is a person on whom the practical effects of a PCP are the same as they are on the disabled person, no s.20 duty can ever arise: the devoted pet-owner’s dinner is as much disrupted by the restaurant’s ban on dogs as the blind diner’s.
Though dismissing the appeal (for other and less interesting reasons), Elias LJ has finally laid Ashton to rest.
The practical effect of this case is to remind employers that the duty to make reasonable adjustments remains and we can advise on such matters as appropriate.
Andrew Macmillan, Solicitor, Motor Industry Legal Services
Removal of Company Car from an Employee on Sick Leave
“If an employee is off on sickness absence but has the use of a company car, can we take the car back whilst they are off?”
It may be possible, but it will depend upon what the relevant contractual clause and/or any policy document/handbook says. In some cases, the remuneration package includes benefits in kind, for instance personal use of a car, wording could be included to state it may be removed at a specified point during long term absence.
Where there is no such wording in the contract, policy or handbook, the position is less clear. Employers should bear in mind the implied terms in employment contracts, particularly the obligation of mutual trust and confidence. This implied term provides that the employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy, or seriously damage, the relationship of trust and confidence between employer and employee. It is therefore possible that removal of a company car could amount to a breach of trust and confidence, particularly if a consistent approach is not followed. As is always the case, much will depend on the specific circumstances in each situation.
Another point to note is where the long term sickness absence is due to a disability. In these circumstances consideration should be given to whether the removal amounts to disability discrimination and legal advice should be sought.
Remember 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 at any stage for advice and assistance as appropriate.
Andrew Macmillan, Partner, Motor Industry Legal Services
Holiday Pay and Irregular Workers
“I have a lot of workers, particularly drivers but also some MOT testers, who work very irregular hours for me, on an ‘as and when’ basis. Some days and weeks they can be in regularly but weeks can go by when I don’t need them. They are happy with this arrangement and so am I.
One worker has now come to me claiming that I should have allowed him holiday and I now must pay him holiday pay? He works so irregularly for me that I considered he had plenty of holiday between the assignments of work, am I wrong?”
The simple answer is yes. In employment law not only ‘employees’ but also ‘workers’ (a broader category than employees) are entitled to statutory minimum holiday under the Working Time Regulations.
In the UK this essentially means all full-time workers/employees should be receiving the 20 + 8 days leave over the course of the year. If workers are part-time then you should pro-rata holiday entitlement.
The difficulty in the above situation obviously comes with calculating the holiday pay where the hours are very irregular, and also the simple fact that many employers and workers aren’t aware of the statutory right to holiday pay for all workers.
These practical problems have led over the years to some employers instituting a process of “rolled up” holiday pay. This involves paying extra each month in lieu of entitlement rather than actually giving holiday. Technically in law since 2006 the European Court of Justice has ruled that is contrary to the Working Time Directive however many employers still employ the system, as there is further commentary that provided the holiday pay is a genuine calculation and is transparent and is a genuine addition to the worker’s rate then, although workers could bring a claim, that would have effectively have already been settled by the payment of the rolled-up holiday pay. There are risks for employers however as this area of law is not entirely settled so there remains a risk that by doing so employers could in the future be challenged and have to pay additional sums on top of what they thought they were already paying for holiday pay. In commercial reality however the practice still continues and many employers and workers find it mutually beneficial.
If you don’t want to give rolled-up holiday pay then ACAS publishes guidance on how you should be trying to calculate holiday pay for workers with very irregular hours. It remains the case that employers should be trying to calculate and grant holiday to all workers, however difficult this can be in reality.
Henry Knill, Head of Employment, Motor Industry Legal Services
“There was a fight in the workplace between a technician and a salesman. The technician has admitted to punching the salesman so I don’t really see there is any need to investigate further. He is saying he was provoked, but in my view that is gross misconduct so I am going to dismiss. We are only a small employer and investigating what seems obvious is a waste of time. If I just invite him to a disciplinary hearing and dismiss I should be safe, shouldn’t I?”
The employer in these circumstances, even if it is a small employer, needs to consider requirements under Section 98(4) of the Employment Rights Act 1996 as clarified by case law. It has long been established that fairly investigating a potential disciplinary charge is an important procedural step in any disciplinary or dismissal of an employee. If the employer skips this step that can lead to a procedurally unfair dismissal.
Unfair dismissal rights only apply to employees with over 2 years’ service, so with those under 2 years the risks of not investigating can be less, provided of course the lack of investigation is not so poor that it might support the employee’s claims that they are being disciplined or dismissed for other automatically unfair reasons, such as whistle-blowing or discrimination, where there is no requirement for 2 years’ service to bring the claim.
Even where the disciplinary charge seems very obvious as in the above situation, an employer can still be liable for procedurally unfair dismissal if they make assumptions which would have been quickly set aside had the matter been investigated. If you walked into a room and one man had a smoking gun in his hand and the other was lying dead on the floor. Whilst it might be assumed what had happened there may be other potential plausible explanations for this scenario and so rushing headlong into making a decision without having all the information to hand could still lead to an erroneous decision.
In the example above the employer doesn’t know until it has investigated and statements are taken what preceded the assault. It may be relevant what was being said to the employee prior to him assaulting the other employee. How serious was the assault? The facts should be investigated first before the disciplinary charges are decided.
As with many areas in employment law, if the employer considers any mitigation against the offence, but ultimately decides to progress, that is in most circumstances (unless the decision is so unreasonable that another employer could not have decided the same) likely to be fair and reasonable. The greater legal danger for the employer is often excluding evidence that provides a potentially different explanation to any charges. The proper course to take in employment law is to investigate all explanations but then come to a reasonable decision based on all the evidence, even if some of the evidence runs against the weight of the disciplinary charges.
In the above example, the investigation would normally involve taking statements from those involved and any witnesses who saw or heard the affray. Remember it is important that all information and evidence from the investigation is enclosed with the disciplinary invitation letter and given to the employee a reasonable time before any disciplinary hearing.
Under ACAS guidance also remember that whoever was investigating the initial allegations should not be the subsequent disciplinary officer, particularly in cases of misconduct. The role of the investigation officer in the disciplinary procedure is essentially a fact finding role gathering evidence and deciding whether or not the issue should then go to a formal disciplinary hearing at which another officer of the company would make the disciplinary decisions.
Some issues could be informally investigated or would only require minimal investigation and other more complicated issues may require more detailed investigation and report.
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 us at any stage for advice and assistance as appropriate.
Andrew Macmillan, Solicitor, Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.