© Bircham Dyson Bell LLP 2016 50 Broadway London SW1H 0BL

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Jesper Christensen (Partner)E jesperchristensen@bdb-law.co.ukT +44 (0)20 7783 3545

EMPLOYER FAILED TO MAKE REASONABLE ADJUSTMENTS WHEN DISABLED EMPLOYEE WAS REQUIRED TO ATTEND COMPETITIVE INTERVIEWThe Equality Act 2010 requires employers to make reasonable adjustments where a provision, criterion or practice (PCP) puts a disabled employee at a substantial disadvantage compared with a non-disabled employee.

In Waddingham v NHS Business Services Authority, an Employment Tribunal ruled that an NHS Trust breached its duty to make reasonable adjustments when it required a disabled employee to undergo a competitive interview as part of a redeployment process, even though the employee concerned had agreed to the interview.

Mr Waddingham had worked for the NHS in a variety of roles since 1984. In 2012 he was notified that he was at risk of redundancy due to the proposed abolition of Primary Care Trusts. A redeployment exercise was implemented to match redundant staff to new roles. In December 2012, Mr Waddingham was diagnosed with throat cancer and underwent radiotherapy

for eight weeks. Despite his ongoing treatment, in January 2013 he applied for a new role. His employer was flexible about the date and time of his interview and he was told that he could take a break during the interview, or stop and rearrange it. Mr Waddingham chose to proceed but scored below the required competency level of 75% and was not appointed. He was made redundant and subsequently brought various Tribunal claims including a disability discrimination claim for failure to make reasonable adjustments.

The Tribunal upheld Mr Waddingham’s claim of disability discrimination. It found that he had been adversely affected at the interview by his cancer treatment which meant he was

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suffering from considerable pain and fatigue, reduced concentration, and an inability to eat properly. He had even attended for radiotherapy earlier on the day of the interview. The Tribunal noted that Mr Waddingham was therefore unable to prepare in the way that he otherwise would have done. This was supported by a letter from his consultant expressing shock that Mr Waddingham had attended a job interview at this stage of his treatment.

The Tribunal found that Mr Waddingham was placed at a substantial disadvantage by the PCPs of having to attend a competitive interview and to score over 75% in order to be considered for the role. His employer therefore had a duty to make reasonable adjustments. The Tribunal acknowledged that Mr Waddingham had put a positive spin on his condition. However, this had to be seen in the context of being about to lose his job, and did not absolve his employer from the obligation to consider whether any reasonable adjustments

were needed. The Tribunal considered that even without specialist knowledge, anyone with the information supplied by Mr Waddingham about his treatment should have known that his ability to deal with an interview process would be adversely affected.

The Tribunal concluded that it would have been a reasonable adjustment to assess Mr Waddingham for the role without a competitive interview on the basis of other material available from his exceptionally long service, such as previous appraisals.

His chances of being appointed to the role were assessed as 75% and he was awarded £115,000 in compensation.

In many cases a disabled employee will tell their employer if any special arrangements are needed for an interview. However, as this case illustrates, it is important that employers also make their own assessment and do not rely solely on the employee. This will often mean obtaining proper medical advice and considering alternative means of selection. It is also vital to keep written records of what steps have been taken and of the reasons why a disabled employee has not been appointed. The adjustments requested by an employee will not always be reasonable. For example, as the Tribunal noted here, employers are not expected to give a disabled employee a job if they are not the best candidate, nor are they required to wait until the employee is better if the role needs to be filled urgently.

...IT IS IMPORTANT THAT EMPLOYERS ALSO MAKE THEIR OWN ASSESSMENT AND DO NOT RELY SOLELY ON THE EMPLOYEE...

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Brian Gegg (Partner)E briangegg@bdb-law.co.uk T +44 (0)20 7783 3570

APPEAL TRIBUNAL RULES THAT ADVERSE VERBAL REFERENCE WAS DISABILITY DISCRIMINATIONUnder the Equality Act 2010, unlawful discrimination may arise where an employer treats a disabled person unfavourably because of something arising in consequence of their disability. It can be very difficult to provide evidence of discrimination. Therefore, once an employee has established facts from which an Employment Tribunal could conclude that there has been discrimination, the burden will shift to the employer to show that, on the balance of probabilities, they did not discriminate. The Appeal Tribunal has recently considered these provisions in Pnaiser v NHS England and Coventry City Council, where a manager had given a negative verbal reference relating to a disabled employee.

Ms Pnaiser was employed by Coventry City Council. She suffered from a medical condition which amounted to a disability within the meaning of the Equality Act 2010 and had significant absence as a result. She also regularly needed to work from home due to ongoing symptoms. However, there were no issues with her performance and her appraisals were positive. When her employment was terminated because of redundancy, Ms Pnaiser received an agreed written reference from her line manager, Ms Tennant.

Ms Pnaiser was then offered a new role with NHS England, subject to satisfactory references. Rather than completing the standard reference template sent to her by NHS England, Ms Tennant provided the agreed reference offering to discuss it further. Professor Rashid of NHS England rang Ms Tennant for further clarification. There was

some dispute over what was said in this phone call, but it seemed that Ms Tennant had stated that Ms Pnaiser had taken significant periods of sickness absence and that it was difficult for her to judge Ms Pnaiser’s suitability for the new role. NHS England subsequently withdrew the offer of employment, and Ms Pnaiser brought claims of disability discrimination against both the Council and NHS England.

The Employment Tribunal dismissed Ms Pnaiser’s claims because it found that she had failed to establish a case for discrimination that would shift the burden of proof to either NHS England or the Council. However, the Appeal Tribunal upheld her appeal, ruling that the Tribunal had misapplied the law. It had set an ‘impermissibly high hurdle’ by requiring Ms Pnaiser to demonstrate that the only inference that could be drawn from Ms Tennant’s comments about her unsuitability was a discriminatory one. Since there was sufficient evidence to conclude that at least part of the reason for the negative reference was Ms Pnaiser’s absences, which were a consequence of her disability, the Council had discriminated against her. The Appeal Tribunal also found that NHS England had constructive knowledge of Ms Pnaiser’s disability, since Professor Rashid had known about her

...THIS CASE ILLUSTRATES WHY MANY EMPLOYERS NOW ONLY PROVIDE BRIEF FACTUAL REFERENCES...

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Caroline Yarrow (Partner)E carolineyarrow@bdb-law.co.uk T +44 (0)20 7783 3538

absences and their medical context, and that withdrawing the job offer was therefore also unlawful discrimination.

This case illustrates why many employers now only provide brief factual references. There are considerable risks involved

in deviating from agreed references, and in providing additional comments, verbally or otherwise. It was also relevant in this case that Ms Pnaiser had previously received only positive appraisals from Ms Tennant. Potential employers should be

aware of the possibility that a reference could be influenced by discrimination, for example, in relation to an employee’s absence record. Even if the employee’s disability is not the only reason for a negative reference, the employee may still have a claim.

APPEAL TRIBUNAL CONSIDERS WHETHER INSTRUCTION NOT TO SPEAK NATIVE LANGUAGE AT WORK WAS RACE DISCRIMINATIONWith greater diversity in the workplace, employers increasingly face issues related to language. There have been some successful race discrimination cases relating to the imposition of language requirements in the workplace. In Kelly v Covance Laboratories Ltd, the Appeal Tribunal considered whether an instruction to an employee not to speak their native language at work amounted to direct race discrimination or harassment.

Covance is involved in the use of animals for product testing and has in the past been the subject of attention by animal rights activists, including infiltration by activists seeking information about their work. Mrs Kelly, who is Russian, was engaged as a contract analyst, subject to an initial six month probationary period. During the early weeks of her employment she would often speak in Russian on her mobile phone in the office, and disappear into the lavatories for long periods to speak in Russian on her phone.

This unusual behaviour led Mrs Kelly’s line manager to suspect that she might be an animal rights activist. He therefore instructed her not to speak in Russian at work. When Mrs Kelly objected that two of her Ukrainian colleagues spoke in Russian, he issued similar instructions to them. The problems continued and a formal capability process was commenced. Mrs Kelly resigned the day before a

disciplinary hearing had been scheduled to discuss this. She then brought various Tribunal claims including race discrimination and harassment.

The Tribunal found that, in principle, it was possible for the instruction not to speak Russian to amount to an act of direct race discrimination or harassment. However, it concluded that in this case any difference in treatment was not because of race. This instruction had to be seen in the context of Covance’s involvement in animal testing which had previously resulted in attacks by animal rights activists. Her unusual behaviour had understandably led Covance to believe that she might be an animal rights infiltrator. In addition, the Tribunal concluded that the same instruction would have been given to another employee who was speaking a language other than English in circumstances that gave the employer cause for concern.

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Her claims were therefore dismissed. The Appeal Tribunal agreed with the Tribunal’s reasoning. Her treatment was because of her manager’s concerns about her behaviour, not because she was Russian.

Imposing a requirement to speak a particular language must be done carefully to minimise the risk of claims. It is vital to ensure that any policy is applied consistently to

employees of all nationalities. If a particular language is banned there needs to be a very clear non-discriminatory reason for the instruction, such as confidentiality or operational requirements. The employer in this case had serious security concerns and was able to show that its instruction was unrelated to Mrs Kelly’s nationality. In order to avoid indirect discrimination claims,

an employer who is imposing a requirement to speak in a particular language must show that the policy is a proportionate means of achieving a legitimate aim. For example, it might be justifiable to require English to be spoken on a building site for health and safety reasons, but not for this requirement to extend to break times.

COURT OF APPEAL CLARIFIES AN EMPLOYER’S DUTY TO ADJUST ABSENCE POLICIES FOR DISABLED EMPLOYEES It can be difficult to assess the extent to which absence policies should be adjusted for disabled employees, even where policies give managers discretion to disregard some disability-related absence. The Court of Appeal has recently provided guidance on this issue in the case of Griffiths v The Secretary of State for Work and Pensions which considered whether the duty to make reasonable adjustments for a disabled employee applied to an attendance policy.

Ms Griffiths was employed by the Department for Work and Pensions (DWP). She suffered from post-viral fatigue and fibromyalgia, which the DWP conceded amounted to a disability. The DWP’s attendance policy was activated when an employee reached the ‘consideration point’ which was eight working days’ absence in any rolling 12 month period. The policy also provided that this consideration point could be extended as a reasonable adjustment for disabled employees. After a continuous period of absence of 62 days, Ms Griffiths was given a formal written improvement warning. No extension was granted to take account of her disability. She raised a grievance about the fairness of that warning, arguing that the DWP should have made two adjustments to its application of the attendance

policy. First, her 62 day disability-related absence should have been disregarded and the warning withdrawn. Secondly, the consideration point at which warnings could be issued to her under the policy should in future be extended by 12 days. The grievance was rejected and Ms Griffiths brought a claim in the Employment Tribunal alleging that the DWP had failed to make reasonable adjustments.

The Tribunal rejected her claim, finding that because the attendance policy applied equally to all employees with the same level of absence, whether disabled or not, Ms Griffiths was not at a substantial disadvantage in comparison to non-disabled employees. This meant that the duty to make reasonable adjustments did not arise. The Appeal Tribunal agreed with

Nicholas Le Riche (Partner)E nicholasleriche@bdb-law.co.uk T +44 (0)20 7783 3560

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the Tribunal’s analysis. The Appeal Tribunal also agreed that in any event the adjustments requested by Ms Griffiths were not reasonable because they related to the treatment of absence from work, whereas the purpose of reasonable adjustments is to enable a disabled employee to carry out their work, or to return to work after disability-related absence.

The Court of Appeal has now overturned part of the Appeal Tribunal’s decision. It rejected the argument that the duty to make reasonable adjustments did not apply simply because the policy applied equally to everyone. The correct comparator was an employee who had no sickness absence. Where an employee’s disability leads to levels of absence above those which a non-disabled employee is likely to have, a policy providing for management intervention to address absence will put the disabled employee at a substantial disadvantage. This meant that the duty to make reasonable adjustments was triggered in Ms Griffiths’ case.

However, the Court agreed with the Appeal Tribunal that the adjustments proposed by Ms Griffiths were not reasonable because they would not remove the disadvantage suffered by her. Medical evidence indicated that Ms Griffiths was likely to have further periods of lengthy absence, so it was not

reasonable to expect the DWP to disregard an extended absence. In addition, in these circumstances, an extension of the consideration point would be unlikely to remove any disadvantage to her.

It is now clear that the duty to make reasonable adjustments will apply where a disabled employee has disability-related absences which trigger disciplinary sanctions. The Court stressed that the duty to make reasonable adjustments goes beyond equal treatment and requires employers to take positive steps. However, the extent to which adjustments are reasonable will depend on the facts and circumstances of each case. Although the adjustments requested in this case were not reasonable, on different facts the outcome might be different, for example, if the employee’s future absences were likely to be minimal an extension of the consideration point might have been reasonable.

...THE DUTY TO MAKE REASONABLE ADJUSTMENTS GOES BEYOND EQUAL TREATMENT AND REQUIRES EMPLOYERS TO TAKE POSITIVE STEPS...

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AND FINALLY...

Exclusivity clauses which prevent zero hours workers from working for another employer became unenforceable in May 2015. However, until recently, there was no remedy available where employers sought to enforce an unlawful exclusivity clause. On 11 January 2016 new regulations came into force to give zero hours employees the right not to be unfairly dismissed, and zero hours workers and employees the right not to be subjected to a detriment because they have breached an exclusivity clause (Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015).

The Government Equalities Office has published guidance on the recruitment and retention of transgender staff. This contains advice for managers and HR on how to manage transgender employees from both an

operational and strategic perspective, including those who are transitioning or planning to transition. Employers are also advised to check their policies and procedures in order to ensure compliance with equality legislation. For example, inclusion plans and other HR policies, application forms, monitoring procedures, and equal opportunities training may all need minor amendments to take account of transgender issues.

The Government has confirmed that consultation on a British Bill of Rights, which was due to be published in December 2015, has been delayed until later this year. It is intended that the British Bill of Rights would replace the Human Rights Act. One reason given for the delay is that further research is needed into the establishment of a constitutional court which could have

supremacy over European decisions on human rights.

After years of protracted negotiations, agreement has finally been reached on EU proposals for data protection reform. The EU General Data Protection Regulation is due to be formally adopted early this year by the European Parliament. Since the Regulation will be directly applicable to member states, no further national legislation will be required, and it is expected to become law in early 2018. This gives employers time to prepare for the far-reaching changes, which will include new rules on consent for processing personal data, data portability, and responsibilities to report data breaches. There will also be increased financial penalties for breaches of data processing principles and the rights of data subjects.

...AFTER YEARS OF PROTRACTED NEGOTIATIONS, AGREEMENT HAS FINALLY BEEN REACHED ON EU PROPOSALS FOR DATA PROTECTION REFORM....

© Bircham Dyson Bell LLP 201650 Broadway London SW1H 0BLT +44 (0)20 7227 7000www.bdb-law.co.uk

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