Employment Law Bulletin November 2016 Part 2

8th Dec 2016

Employment Law

Justification in Discrimination Cases Buchanan v The Commissioner of Police of the Metropolis

Disability discrimination happens when a person is treated unfavourably because of something arising in consequence of their disability, and that unfavourable treatment can’t be objectively justified.

The Employment Appeal Tribunal (EAT) in this case was asked to consider, in the context of long-term sickness absence, what it is that must be justified. Is it the employer’s procedure, or the way in which they applied that procedure to a particular employee?

Mr Buchanan was a police officer who was disabled after a serious motorbike accident. He remained off work with post-traumatic stress disorder, and was being managed under his employer’s Unsatisfactory Performance Procedure (UPP), which had three stages. Mr Buchanan had reached the second of these stages. He went on to claim that his employer had discriminated against him by applying the UPP and issuing improvement notices. He said that the notices required him to work when he was clearly incapable of doing so. He also said that his employer ought not to have persisted with the UPP process, or it should have been more measured in how it went about it. The complaint was about the application of the UPP rather than the UPP itself.

The Employment Tribunal held that there had been unfavourable treatment. It also decided that the employer needed to justify the procedure itself rather than the way in which it was applied to Mr Buchanan.

The EAT disagreed with the Tribunal. It was the treatment of the employee that needed to be justified, the EAT said. In this case, the treatment was the application of the UPP to Mr Buchanan. The UPP didn’t say that the employer should place the demands it did on an employee in Mr Buchanan’s position. That being the case, the employer needed to be able to justify its action in doing so.

So, in this sort of situation, remember it may not be enough to point to a decent policy. The way in which you applied that policy will be under scrutiny when it comes to justification. It won’t always be an easy distinction to follow in practice, and it’s worth taking advice if you think you might be at risk of a claim.

Dismissal had to be Communicated Sandle v Adecco

Ms Sandle was an agency worker employed by the recruitment and employment business, Adecco, which provides temporary agency workers to its clients.

When the assignment Ms Sandle had been working on came to an end, Adecco didn’t take proactive steps to find other work for her. It made little attempt to contact her (nor did she make any attempt to contact Adecco). Adecco assumed that she wasn’t interested in any more agency work, but didn’t check.

Ms Sandle’s unfair dismissal case depended on her having been dismissed by Adecco. Had she been? No, held the Tribunal. Adecco hadn’t communicated a dismissal and so the employment relationship was ongoing when she issued her claim.

The Employment Appeal Tribunal agreed. Although dismissal can sometimes be implied from the way an employer has acted, the employer still needs to have communicated its unequivocal intention to dismiss the employee. Communication might be by conduct, but the important thing is that the employee is aware of it.

However, had Ms Sandle chosen to resign in response to Adecco’s failure to use its best efforts to promote her to its clients to maximise her assignment opportunities, that might well have been a constructive dismissal.

Validity of Settlement Agreement Glasgow City Council v Dahhan

Mr Dahhan entered into a settlement agreement with his employer, Glasgow City Council, after issuing various race-related claims against it. That agreement purported to draw a line under his claims; in signing it, Mr Dahhan was giving up all claims arising from his employment. He withdrew his race claims and they went on to be dismissed by the tribunal. However, he then asked for that to be reconsidered. He said that he had lacked mental capacity and therefore wasn’t equipped to sign the settlement agreement. The question for the Tribunal was whether it could set aside the agreement for being invalid on that basis.

Yes, the Tribunal said, and the Employment Appeal Tribunal agreed. Where a party argues incapacity, the tribunal must look carefully into that. If that incapacity is found to have existed, the agreement must be unenforceable.

A cautionary tale for employers, keen to ensure that a settlement agreement does its job. Any hint of mental incapacity should ring alarm bells, not least because it could scupper the deal and the certainty that settlement is supposed to achieve.

And finally….

Jobs Requiring Particular Attributes

A recruitment agency has been in the news for the wording it has used in job adverts.

One, for a personal assistant/private plane flight assistant, reportedly required ‘a classic look, brown long hair with b-c cup’. The company is reported to have had its reasons for advertising in those terms. Criticism has come from various quarters, with the Chief Executive of the Equality and Human Rights Commission, Rebecca Hilsenrath, describing this sort of advertising as, “appalling, unlawful and demeaning to women”.

Also in the news was a survey that revealed a lack of knowledge among employers when it comes to the laws around recruitment. The Equality and Human Rights Commission found that only 39% of businesses know that it is against the law to advertise a job vacancy just in one foreign language where that language isn’t required in order to do the job. The survey also revealed that employment checks are not being properly performed; less than 50% of those that took part in the survey said they knew that employers must check that all job applicants have a right to work in the UK, irrespective of their place of birth, before taking them on.

You’ll find plenty more interesting statistics here.