One in four employers would not hire a disabled person if they have knowledge of a disability, according to a survey [link to this] that Leonard Cheshire published recently. An alarming statistic to say the least. Employees and employers alike will find that the devil is in the detail. There is a very important detail to know when it comes to disability discrimination.
What constitutes disability discrimination?
There are six types of disability discrimination
- Direct (unequal treatment because of a disability)
- Discrimination ‘arising from’ (unequal treatment because of a related reason, eg absence)
- Indirect (a one-size-fits-all policy that is harsher on the disabled)
- Harassment (hostility because of a disability)
- Not making reasonable adjustments for a disability
- Victimisation (retaliation for bringing a discrimination complaint)
Knowledge of a disability is needed for 1, 2, 4 and 5. So an employer can’t be guilty of direct discrimination if it doesn’t know the employee is disabled. But does this mean actually knowing, or strongly suspecting or does having an inkling count?
Time to speak up?
What happens when you hide your disability from your employer? lets look at the case of A Ltd v Z.
The claimant in this case didn’t tell her employer that she had mental health issues. It dismissed her because she frequently took days off from work. These were days off which she had to take off because of her illness. Was it discrimination to dismiss her? The question is whether an employer can be guilty of disability discrimination if they didn’t know their employee was disabled.
The short answer is no. An employer can’t be liable for disability discrimination if they didn’t have knowledge of the disability. However, the longer answer is that in some cases the law will presume that an employer knows about their employees disability. This is ‘constructive knowledge’. The law recognises this in cases where the employer ought to have known or could have found about the disability of their employee. Red flags include lots of absences and visible symptoms.
The employee’s claim failed as the tribunal found even if the employer had inquired further into the health of the claimant, she wouldn’t have shared her health information. So the employer couldn’t have found out about her disability.
Does this case set any precedent?
It is still possible to succeed in a disability discrimination case, even if the employer is unaware. In cases like this the employer must have ‘constructive knowledge’ of their worker’s disability.
Can an employee be dismissed while on long- term medical absence?
An employee can be dismissed while on medical leave. But it can’t be because of medical leave or a disability, unless it is justified.
By Faize Tahir.
Image used under CC courtesy of Marco Verch
Rugby Australia has sacked Australian rugby star Israel Folau because of what he said in a posting on Facebook. He wrote the following on his church’s Facebook page despite being warned not to do so.:
“Drunks, homosexuals, adulterers, liars, fornicators, thieves, athiests and idolators – Hell awaits you”.
We’ve posted on this very recently, so we are confident about how a UK employment tribunal would handle this.
The Equality Act bans discriminating on the basis of religious belief or sexual orientation. It could therefore lead to disciplinary action and/or dismissal. But what happens if an employee expresses their religious view which happens to offend colleagues? Is it fair to dismiss an employee for such conduct? Is the employee expressing their religious view or, discriminating against colleagues of a particular sexual orientation? Does it matter if the offended person is gay?
To prove unfair dismissal, an employee must show that the decision to dismiss fell outside one of the ‘fair reasons’ of dismissal. And they must show it was unreasonable.
For direct discrimination, an employee must show that the employer treated them less favourably than someone without the same ‘religion or belief’ or ‘sexual orientation’. The employee must then show that the treatment was because of their belief.
This article discusses how UK law would deal with this issue.
Mr Folau is a devout Christian. Rugby Australia recently terminated his contract for the facebook posting, saying that he:
“had committed a high-level breach of the Professional Players Code of Conduct warranting termination of his employment contract”.
Mr Folau said in the immediate aftermath “I share it with love. I can see the other side of the coin where people’s reactions are the total opposite to how I’m sharing it”.
Mr Folau has now lodged a claim to the Australian Industrial Tribunal (the equivalent to the UK Employment Tribunal) alleging his contract was essentially unlawfully terminated. He says “No Australian of any faith should be fired for practising their religion”.
How do UK employers deal with an employee’s use of social media
Social media has grown enormously over the last 10 years, to the extent that all employers can presume all their employees have a social media presence of some sort. Not all of them are as famous as Mr Folau of course.
Employers often have a social media policy. This aims to minimise the adverse impact of social media on businesses (i.e. bad publicity, revealing trade secrets or other confidential information). Guidelines typically include:
- Avoiding social media communications that could damage reputation or business interests;
- A ban on using social media to disparage the business, its staff or contacts;
- A ban on sensitive business information (i.e. business performance), jeopardising trade secrets, confidential information and intellectual property; and
- Being respectful to others.
Breaching social media policies is generally regarded as misconduct. Depending on the circumstances they can result in formal disciplinary action including dismissal. Having a policy in place makes it harder for an employee to bring a successful employment tribunal claim.
How would Mr Folau’s case be dealt with by a UK employer and through the courts?
Assuming that the employer had a social media policy with the typical guidelines stated above, in our opinion, a tribunal would find the post disrespectful to other players/staff. It would bring the profession into disrepute. It would also have resulted in a victory for the employer in an unfair dismissal claim.
On one hand, employers must uphold discrimination laws, which the anti-homosexual views of the Old Testament are at odds with. On the other, people generally have a right to freedom of thought and expression, especially outside work. But employers have a right not to be associated with such views, which could bring the company into disrepute. And no, it does not matter if the posting offended no gay person.
We think that an employer would be justified in dismissing someone for such a Facebook posting made on a private account, certainly if the employee was well-known or linked online with the employer. This is because it could bring the employer into disrepute. But it depends on the context. If it were a blue-collar type situation (as opposed to a client-facing role) then it would be hard for the employer to say that its reputation could be damaged. This is because the general public would not be able to tie the Facebook posting to the employer.
This case is interesting because there is a conflict between the protected characteristics of ‘religion or belief’ and ‘sexual orientation’. On one hand Mr Folau’s posting on Facebook was expressing his religious belief but on the other it was offensive to colleagues with modern and secular views on homosexuality. Mr Folau says that he was simply quoting from the Bible. But this does not make it right in the eyes of employment law.
Punishing someone for a Facebook posting is not the same as punishing someone for expressing their religious views in the way it would be to punish them for attending a Church that espouses bigoted views.
Nevertheless, employers should be wary of dismissing an employee with a link to their religious beliefs, as this carries a risk of a discrimination claim. It goes a long way to have considered this in advance in the social media policy or disciplinary policy.
It will be interesting to see how the Australian courts handle this case.
Hatton James Legal
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What would the compensation be for a one-off discriminatory act? In discrimination law, one of the main compensation categories is ‘injury to feelings’. Injury to feelings is designed to compensate the employee for the effect the act(s) of discrimination had. There are three levels of compensation. These depend on the seriousness of discriminatory acts, known as the ‘Vento bands’ (after the name of a case):
- Lower band – £900 to £8,800 – for less serious cases eg one-off discriminatory acts;
- Middle band – £8,800 to £26,000 – for more serious cases; and
- Top band – £26,000 – £44,999 – for the most serious cases.
We have written about this elsewhere.
Change in the law
In the recent the case of Base Childrenswear Ltd v Otshudi, the EAT (the Employment Appeal Tribunal) agreed with the ET (Employment Tribunal’s) decision to award £16,000 for a one-off discriminatory act (harassment).
Ms Otshudi worked as a photographer. She complained about six acts of racial harassment from colleagues. The company made her redundant. However she thought the dismissal was because of her race. So she appealed and submitted a grievance. The employer failed to respond to either.
She lodged a claim for racial harassment at tribunal. The employer changed their story at tribunal, saying that the reason for her dismissal was dismissed due to suspected theft. This was a mistake because it is rarely wise to change your story during legal proceedings.
The tribunal found that Ms Otshudi was a victim of racial harassment. It awarded (among other things):
- £16,000 for injury to feelings (on the basis of one harassing act); and
- £5,000 in aggravated damages (mainly because the employer failed to respond to the appeal and grievance, and lied about the reason for the dismissal).
The employer appealed the tribunal’s decision to award £16,000 in respect of one act of harassment.
The employment appeal tribunal found for the employee. It said that just because there had been a one-off discriminatory act, that didn’t mean that the award should be in the lowest bracket. The focus should be on the effect on the employee.
This decision illustrates that even a one-off act of discrimination can be very costly for an employer. This is because when assessing compensation the focus isn’t just on the number of discriminatory acts, but rather the affect on the employee. The employer can’t always know what this will be. this is because the employee might go off sick as a result, have trouble sleeping, see a doctor or specialist, be prescribed pills and so on. So compensation for a one-off discriminatory act which hurts an employee’s feelings deeply will be higher than for a number of acts which add up to less hurt.
Therefore this case highlights the importance of employers doing everything possible to prevent any discrimination. This includes having an equal opportunities policy in the staff handbook, and providing training to ensure all employees, especially managers, are aware of the zero-tolerance policy to discrimination in the workplace.
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Can religious conversations get employees into trouble for gross misconduct?
This article looks into a Court of Appeal case about the NHS dismissing an employee who had religious discussions with patients.
UK law outlaws religious discrimination in the workplace. If an employee engages in it, disciplinary action could result. That could lead to a dismissal or resignation which is unfair.
What happens if an employee claims that disciplinary action taken because of religious conversations is discriminatory? This case comes only a couple of years after the case of the prison worker who told convicts that homosexuality is a sin. In that case, the EAT said a workplace ban on that sort of discussions was not indirect discrimination. It was a ‘proportionate means of achieving a legitimate aim’ (keeping order and safety in the prison).
However this was a case about unfair dismissal. In order to prove unfair dismissal, an employee must show that the decision to dismiss fell outside the prescribed ‘fair reasons’ of dismissal. And they must show it was unreasonable.
The allegation against Mrs Kuteh
Mrs Kuteh, a devout Christian, had 8 years’ service. Her role was to carry out pre-operative assessments on patients. The NHS began receiving complaints from patients that she was discussing religion with them. Specific complaints about Mrs Kuteh included:
- Saying ‘what do you think Easter is about’, to a patient, who responded that ‘[she] wasn’t there to talk about religion’;
- Telling a cancer patient that if they prayed to God, they would have a better chance of survival; and
- Giving a patient a bible and telling them she would pray for them.
The NHS suspended Mrs Kuteh whilst they investigated the allegations. At the investigation meeting Mrs Kuteh argued that her actions were a legitimate part of her healing work. In a later disciplinary hearing, the NHS dismissed her for gross misconduct.
Mrs Kuteh brought a claim of unfair dismissal. She argued that she had a right to freedom of thought, conscience and religion or belief under the European Convention of Human Rights. The ET rejected this. It said the dismissal was fair because her conduct fell in the category of converting, or attempting to convert someone from one religion to another (this is known as ‘proselytising’). It wasn’t expressing or having those religious beliefs.
What the case says
Mrs Kuteh appealed it up to the Court of Appeal, which agreed. It said that proselytising against someone’s will isn’t protected by the Convention on Human Rights.
Therefore employers should feel confident in giving warnings or even dismissing staff who have this kind of discussion with others. But remember that there is a gradient of behaviour ranging from “I went to Church on Sunday” through “Will you come to Church with me on Sunday”, all the way to “Homosexuality is a sin”. There is no blanket rule so you must take each case on its merits.
Case report: Kuteh v NHS
By Zahid Reza
Image used under CC courtesy of Masterbutler
Under the Working Time Regulations 1998 (WTR), workers are entitled to an unpaid 20-minute rest break after working six hours. During this 20-minute break, workers must not be required to perform any duties.
We look at the recent case of Grange v Abellio London Ltd, where the EAT held that
(1) An employer acts unlawfully by even not accommodating (as opposed to refusing) the 20-minute rest break ; and
(2) ET’s can permitted to award personal injury compensation for this.
Mr Grange worked as a relief roadside controller. This role involved monitoring and regulating the bus services. He was to work 8 hours 30 minutes per day, with a 30-minute uninterrupted lunch break. However, because of the responsive nature of the position, he found it difficult to fit in his break. Therefore Abellio changed Mr Grange’s hours to a continuous 8 hours (without the 30-minute break). He filed a grievance, complaining that over the previous two and a half years, he had been made to work without a break, which adversely affected his health. Abellio rejected this grievance.
Mr Grange lodged a claim at the ET, alleging a breach of the WTR. The ET rejected the claim, concluding that ‘there had never been a refusal of a rest break’ by Abellio.
Mr Grange appealed to the Employment Appeal Tribunal (EAT).
The EAT allowed Mr Grange’s appeal in that they rejected the ET’s rationale that there had to be a explicit ‘refusal’ to win a claim. The EAT confirmed that ‘simply the denial of a right through the arrangement of the working day’, even if the worker didn’t request one could constitute a refusal and therefore a breach of the rest break requirements in the WTR.
The EAT also said that the ET can award personal injury damages for a failure in providing rest breaks under the WTR. The EAT’s rationale was that because the WTR is designed to protect the health and safety of a worker, naturally ET’s should be able to award personal injury damages for these breaches.
This case serves as a stark reminder for employers to ensure that arrangements are in place for workers to have an uninterrupted break of 20 minutes if they are working for more than six hours on a given day. Failure to do this may prove costly, especially now this case confirmed damages for personal injury can be awarded.
Case report: Grange v Abellio London Ltd.
By Zahid Reza
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The Equality Act 2010 forbids victimisation. The employee must show that they were subjected to some negative treatment, as a result of a protected act (discrimination).
Wrongful dismissal is a breach of contract claim for unpaid notice pay. If an employer legitimately dismisses an employee for gross misconduct, they don’t have to pay the notice period.
This article looks at the recent case of Francesca Carpos. She claimed the employer dismissed and victimised by dismissing her. She had circulated a memo which allegedly brought her employer’s name into disrepute.
Dr Carpos was a bassoonist and lecturer at the Royal Academy of Music. Dr Carpos had done PhD research into discrimination in the classical music industry. One of her findings was that people often used the term ‘gypos’ for session violinists. She wrote a memo to students, advising them on how to fit in and get a job. The memo included:
“….Be discreet; what’s on tour stays on tour. Become familiar with shared understanding of anecdote, caricature, stereotype and jokes. Google them and look on YouTube, if this is not your culture. For example, you may hear terms like this: Pond life = (string players). Gypos (short for gypsies) = violinists specifically…”.
She circulated the memo to around 800 students. As a result a letter was sent to the Student Union, accusing Dr Carpos of ‘encouraging the development of a toxic environment in which musicians are complicit in the harassment of and discrimination against colleagues’.
Dr Carpos was dismissed for gross misconduct, that is bringing the academy into disrepute.
She didn’t accept this and lodged a claim of wrongful dismissal and victimisation. Dr Carpos argued that the it couldn’t be true the reason was the outpour of hysteria from the student body. The employer must have been discriminating – it victimised her.
Decision – the employer victimised her
Dr Carpos won her claims and the judge awarded over £180,000 in compensation. The tribunal concluded that the academy’s decision to dismiss her on grounds of gross misconduct was wrong and so she was entitled to her notice period. In relation to victimisation, the tribunal concluded that the dismissal was so obviously trumped-up that it really had to do with her having brought a previous complaint about discrimination.
Curiously, the judge also indicated that if Dr Carpos was eligible to bring an unfair dismissal claim, she may well have succeeded in that, too.
Therefore this case serves as a stark reminder that employers shouldn’t be pressured into making knee-jerk reactions because they may inadvertently (1) wrongfully (or unfairly) dismiss; and (2) discriminate against or victimised the employee.
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This unique birth has highlighted the inadequate paternity rights fathers of premature babies have. They have to return to work after just 2 weeks’ leave. Their babies may be in hospital for long periods of time with many complications. The current paternity leave laws make no provision for this scenario.
How do new dads cope?
Firstly, the employee should have discussions with their employer. The employee can check whether they have enhanced contractual paternity rights. The employer may also sign the employee off sick so they can support their partner and baby. The employee could use parental leave but this is usually unpaid and unsuitable.
Current paternity rights
Statutory paternity leave is limited to one or two weeks’ paid leave. It is taken after the birth and completed within 8 weeks from birth. The medical definition of a premature baby is at 37 weeks or earlier. Most are born between eight and three weeks early. Eight weeks is clearly insufficient time. Babies born prematurely are also more likely to have a disability.
Over 60,000 babies are premature in the UK, which is 7% of all births. A number that will affect many new fathers. Lobby groups are urging the government to do more to support these families by improving paternity rights.
What can employers do?
Employers might consider offering better contractual paternity rights by way of:
- Additional paid leave
- Allow employees to take leave beyond the 56 days deadline
- Allowing temporary flexible working arrangements
- Varied start/finish time
- Home working
Alternatively, employers could introduce a compassionate leave provision. Or even paid parental leave for such circumstances. Ensuring line managers understand the difficulties of this scenario will also help. This would result in better support for employees while balancing the needs of their business.
Employees who keep their employers informed of their situation will find most are supportive. Many problems arise through lack of communication. At such a difficult time, they might even consider asking a relative to speak for them.
Employees are encouraged to talk openly about the difficulties they face. Both parties can then agree practical ways to cope with paternity issues.
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If an employer doesn’t follow the correct procedure with notice of dismissal then it gives rise to legal claims. Except in cases of gross misconduct, a dismissed employee has the right to their statutory or contractual notice period (whichever is greater).
An employer can give notice of dismissal by email, letter, or in person. In writing is best, to avoid dispute about when it happened. The notice period starts when the employee becomes aware of it. Not for example, when the employer posts the letter.
Recent case law
A recent case took the view that notice of dismissal sent by post is only effective once the employee has had a reasonable time to read it.
A letter giving notice of dismissal to a Mrs Haywood dropped through her letterbox while she was away on holiday. Mrs Haywood read it on her return and the issue was when the notice period began. This was important, as she would get enhanced pension if dismissed after her 50th birthday, which she celebrated whilst on holiday. The employer argued that the notice period ran from the delivery date (which was before Mrs Haywood turned 50) and that they didn’t need to pay the enhanced pension.
The Supreme Court upheld Mrs Haywood’s claim. The court stated the notice period began when she had the opportunity to read the letter, not upon delivery. Creating uncertainty for employers as they cannot be sure as to when a letter will be read. As a result, the date of dismissal may not be that which was intended. However, the court ruled that only a reasonable amount of time would be afforded to an employee and wilful delay will not be considered.
How notice of dismissal is to be served should be set out in the contract, then this ruling will not apply. The employer should check the employee will not be away on leave or off ill, which can delay the process. The employer should serve the notice by post and follow it up by email or telephone to make sure it has been received. Also, the employer can ask the employee to confirm receipt of the letter.
Finally, it is best practice for the employer to give notice at a face-to-face meeting as it guarantees clarity for both the employee and the employer.
Case report: Newcastle Upon Tyne Hospital NHS Foundation Trust v Haywood
Reporting by our intern Maliha
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