Constructive knowledge of disability

Constructive knowledge of disability

An employer will not discriminate against someone because of their disability if the employer did not know, and could not reasonably have been expected to know, that the employee was disabled. Whether an employer could reasonably be expected to know about a disability is often referred to as 'constructive knowledge'.

In A v Z, the employee was employed as a part time finance coordinator for less than six months. She had stress, depression, low mood and schizophrenia but had not told her employer about these conditions. When she was recruited, she had explained away significant historical sickness absence with physical illness. She completed a form saying she did not have a disability. During her short period of employment, the employee had 85 days' absence, with 52 days recorded as sick. Again, the employee said her absence was due to physical illness. She did not mention any mental health issues. She was signed off with low mood and wrote to the employer a week later, saying she was 'incredibly depressed' due to family problems. However, she did not tell her employer when she was hospitalised for two weeks for psychiatric care and continued to explain her absence with physical illness. When she was dismissed, she brought a disability discrimination claim. The question for the tribunal to decide first was whether the employer had constructive knowledge of her disability.

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Whistleblowing

An employee is unfairly dismissed if they were dismissed because they made a protected disclosure. In order to be a qualifying disclosure, section 43B Employment Rights Act 1996 says the disclosure must be made in the public interest 'in the reasonable belief of the worker making the disclosure'. Is a tribunal wrong to consider whether the disclosure really is in the public interest?

In Okwu v Rise Community Action, the employer was a small charity which provided support to people affected by domestic violence, female genital mutilation or HIV. They employed the employee as a specialist worker. In the first few months, the employer raised numerous performance issues with the employee and extended her probationary period. The employee then wrote to the employer saying that they were in breach of the Data Protection Act for not providing an individual mobile phone and secure storage when she was dealing with such sensitive matters. She was dismissed and the letter of dismissal referred to performance issues and her 'antagonism' towards the charity. The employee brought an unfair dismissal claim saying she had been dismissed for making protected disclosures. She said nothing else had happened between her probationary period being extended and her dismissal other than her sending the letter.

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Job adverts

Job adverts

Are your job adverts accidentally putting off potential applicants? A new LinkedIn report has looked at the language used in job adverts and found that certain things can deter a potential applicant from applying. The survey of more than 1000 employees and 250 recruitment managers found that more than half of women would be put off by an advert describing the workplace as 'aggressive', compared with only a third of men. Surprisingly, there are more than 50,000 jobs on LinkedIn which include the word 'aggressive' in their description. More women than men were put off by the term 'born leader' too. The approaches to annual leave and flexible working also differed between the genders, with more women than men giving these issues top priority.

Are your job adverts accidentally putting off potential applicants? A new LinkedIn report has looked at the language used in job adverts and found that certain things can deter a potential applicant from applying. The survey of more than 1000 employees and 250 recruitment managers found that more than half of women would be put off by an advert describing the workplace as 'aggressive', compared with only a third of men. Surprisingly, there are more than 50,000 jobs on LinkedIn which include the word 'aggressive' in their description. More women than men were put off by the term 'born leader' too. The approaches to annual leave and flexible working also differed between the genders, with more women than men giving these issues top priority.

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Agency workers

Agency workers

The Agency Workers Regulations 2010 (AWR) require that agency workers who are employed for more than 12 weeks receive the same basic terms and conditions of employment as permanent staff. Regulation 6 says that entitlement includes terms and conditions relating to 'the duration of working time'. Does this mean an agency worker can use the regulations to insist on the same hours as a permanent employee? The Court of Appeal has looked at this issue in Kocur v Royal Mail.

Mr Kocur was an agency worker who worked alongside permanent members of staff at the Royal Mail depot in Leeds. He worked on average 20 hours a week. He brought a claim, saying that regulation 6 entitled him to the same 39 hour working week as his permanent colleagues. He lost his claim in the employment tribunal and the EAT. He appealed to the Court of Appeal.

Court of Appeal said that reference to 'the duration of working time' was a reference to the limits imposed on working periods by the Working Time Regulations 1998. The AWR were not intended to regulate how much work agency workers were given. The flexibility provided by agency workers would be undermined if a business were required to give them the same hours as someone who is employed directly by the business. This decision will come as a relief to companies who use agency workers during busy periods precisely because of their flexibility.

Religious discrimination

Religious discrimination

Employers are not allowed to discriminate against workers on the grounds of their religion or religious beliefs. In Page v NHS Trust Development Authority, the Employment Appeal Tribunal looked at whether an employee can be fairly dismissed for the way he expresses his beliefs, rather than the beliefs themselves.  

Mr Page was a non-executive director of an NHS Trust. He also had a job as a magistrate. In his magistrate's role he sat on a panel to consider an adoption by a same-sex couple. He said it was 'not normal' for children to be adopted by a single parent or same-sex couple and children should be brought up by a father and a mother. His magistrate colleagues complained and disciplinary action was taken. Mr Page then spoke to the press, saying his views stemmed from his Christian beliefs. The Trust heard about these comments and told him to stop talking to the press. However, he continued to do so, including primetime TV interviews. He was removed as a magistrate. He was also suspended by the Trust and his position was not renewed due to his behaviour. He brought discrimination claim against the Trust.

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Restrictive covenants

Restrictive covenants

Restrictive covenants are clauses in employment contracts which protect a legitimate business interest by restricting what the employee can do both during and after their employment. The clause must be reasonable and not go further than is necessary to protect the business interest. 'Non-compete' restrictions are the strongest form of restraint – where an employee is prevented from competing with the business for a limited period after their employment ends. The recent case of Tillman v Egon Zehnder looked at whether words can be deleted from a restrictive covenant which is otherwise too wide, to make it enforceable.

The employee's contract contained a term which prevented her from being engaged, concerned or 'interested in' a competing business for 6 months after termination. She wanted to work for a competitor in that period so sought to challenge the clause. She said the restraint went further than necessary to protect a legitimate business interest because the term 'interested in' was too wide. It stopped her from holding an investment of even one share in a competing company and was therefore unenforceable. The company asked for an injunction to stop her working for the competitor. The High Court granted the injunction, saying the clause was valid and did not stop her owning a minor investment shareholding. The Court of Appeal disagreed and said the words 'interested in' did prevent any shareholding. The clause was therefore too wide and was unenforceable. The Court refused to erase the words 'interested in' to make it enforceable.

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Social media and harassment

Discrimination

Amy harasses Bill if she does something in relation to a protected characteristic (race, sex, disability etc) which has the purpose or effect of violating Bill's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. If Amy harasses Bill 'during the course of employment' then the employer will be vicariously liable for her conduct unless they can show that they took all reasonable steps to prevent it.

In Forbes v LHR Airport, the employee's colleague, S, shared a golliwog image on her private Facebook account together with a message saying, 'let's see how far he can travel before Facebook takes him off'. One of her Facebook friends was another colleague, BW, who showed the image to the employee. The employee lodged a grievance about S's behaviour. The employer investigated, S apologised and was given a final written warning. When the employee was later moved to work with S, he went off sick and lodged an harassment claim.

The employment tribunal found that S's actions were not done in the course of employment. She wasn’t at work when she posted the image. It was not done on a work computer. It was posted in a private group not including the employee and she didn’t mention any colleagues or her employer. The Employment Appeal Tribunal agreed. They noted that BW's act of showing the employee the image could have been done in the course of employment. However, the employee's case was based solely on S posting the image, not on BW's actions. The EAT said sharing an image on Facebook might be in the course of employment where the Facebook page is used mainly for work purposes but that wasn’t the case here. The fact that the employer had dealt with the grievance did not necessarily mean the act was done in the course of employment either. Depending on policies, employers can take action for conduct which takes place outside work.

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Unfair dismissal

In unfair dismissal cases, both the compensatory and basic awards can be reduced by the tribunal, potentially to zero, based on the employee's conduct before dismissal. Secret recordings of meetings by an employee can be admissible evidence in cases if the tribunal thinks it is relevant. However, secretly recording a meeting might amount to misconduct, depending on the employer's rules.

In Phoenix House v Stockman, the employee was unhappy about a restructure. She secretly recorded a meeting with HR. As part of an unfair dismissal claim, the tribunal accepted the employee's explanation that she recorded the meeting because she felt flustered rather than to entrap the employer. They reduced her compensatory award by 10 per cent because of her conduct. The employer appealed, saying they would have dismissed the employee for gross misconduct had they known about the secret recording so her compensation should be reduced to nil. They said the secret recording was a breach of trust and confidence.

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ACAS annual report

ACAS

ACAS's annual report shows that early conciliation is in high demand following the removal of tribunal fees. Early conciliation is mandatory and ensures that an employee tries to resolve any workplace dispute before lodging a tribunal claim. In 2018, tribunal proceedings were avoided in nearly three quarters of early conciliation cases, either because they settled or because the employee had a rethink. There are clear practical and financial benefits to nipping disputes in the bud. ACAS conciliation can also help during the employment tribunal process. Last year over half of employment tribunal cases were settled through ACAS.

ACAS's services are expert, impartial and free. With fees removed, there are fewer barriers to lodging a claim. Having early intervention from someone impartial can help knock out spurious claims and help businesses to resolve claims with merit before they escalate.

Have a look at the report for more information on the services ACAS offers:

Download the report

TUPE

TUPE

Employers have an obligation under the National Minimum Wage Act 1998 (NMWA) to keep pay records showing that they pay the national minimum wage (NMW). This requirement continues after employment has ended. The Employment Appeal Tribunal has looked recently at what happens when there is a TUPE transfer – does the transferor have to keep and produce those records for employees who have transferred to another employer?

In Mears Homecare v Bradburn, the employees transferred under TUPE. A few months later they requested pay information from their old employer (the transferor) as part of a query about payment of the NMW. The transferor didn’t respond within the time limit and the employees lodged an employment tribunal claim. The tribunal decided that the transferor was the relevant 'employer' for the purposes of the NMWA. The query about pay related to the employees' employment with the transferor and the duty to retain and produce pay records lasted beyond the end of employment. The tribunal ordered the transferor to pay compensation.

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