October 2018 Newsletter

When is notice not notice? When it is ambiguous, said the Employment Appeal Tribunal in East Kent Hospitals v Levy. The employee worked in the records department. She had a poor sickness absence record. She applied for a role in the hospital's radiology department, which she was offered subject to pre-employment checks. She wrote to her manager giving one month's notice, which her manager accepted in writing.

The Radiology department retracted the offer due to the employee's poor absence record. The employee then tried to retract her notice. The employer refused. The employee brought a claim for unfair dismissal, but the employer said she had resigned. The question was, had she?

The Employment Appeal Tribunal said the key issue was the content of the employee's letter and what had been understood by the employer at the time. The tribunal looked objectively at what the 'reasonable recipient' would have understood from the letter, armed with all the background information including the employee's expectation of an internal transfer to radiology. On receiving the letter, her manager did not take steps to recoup her excess holiday or do termination forms (which he did promptly after refusing her retraction). The EAT found that the reasonable observer would not have thought the employee was resigning from the Trust. They would have thought the employee was giving notice of her intention to accept a conditional offer of employment in radiology. The resignation had not been 'clear and unambiguous' and was not valid.

Employers can still (generally) refuse to accept a retraction of notice. The key is to ensure that notice has been validly given first, before refusing the retraction.

Establishing disability

Is every medical condition a disability? And if an employee mentions a medical condition, does that mean the employer knew that the employee was disabled? Not necessarily, said the Employment Appeal Tribunal in Mutombo-Mpania v Angard Staffing Solutions. The employer supplied agency staff to Royal Mail. The employee had essential hypertension (high blood pressure) for which he took medication. However, in recruitment paperwork, the employee said that he did not have a disability and did not need adjustments. He worked late shifts at Royal Mail and had done some night shifts. When he was moved to night shifts, the employee wrote saying his 'health condition' prevented him working nights. After that, the employee failed to show up on four occasions in less than a month. He was then told he would not be given more work.

The employee brought various tribunal claims, including disability discrimination. But was he disabled? And should the employer have known about that disability? The EAT said that the employee had not proven that he was disabled. He had not given any evidence of the substantial adverse effect that his medical condition had on his day to day activities (which is the requirement for a finding of disability). It was not enough to give his symptoms. He had to link those symptoms to his ability to carry out particular activities or his inability to work nights.

The EAT also agreed that the employer had no express knowledge of any disability. Reference to a 'health condition' and a failure to appear for work was not enough to imply constructive knowledge either (though it should have prompted the employer to make further enquiries). A health condition is not the same thing as a disability.

This decision is useful for employers. It is not enough for an individual to have a medical condition. They still need to show how it affects their day to day activities before they gain the protection of the law. Employers would be wise to make further enquiries if employees refer to any health condition.

Post TUPE variation of contract

Mr Tabberer and his colleagues were electricians. They were originally employed by Birmingham City Council. Their employment transferred several times by way of TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) over the years. At the time of the tribunal claims, they were employed by Mears. The employees were contractually entitled to receive an Electricians' Travel Time Allowance, though the historical reasons for the allowance no longer existed. Mears varied the employees' contracts to remove the allowance, saying it was outdated.

The employees brought claims saying that the variation was connected to the TUPE transfer to Mears. The variation was therefore void (which means unenforceable) and the employees were still entitled to the allowance. The Employment Appeal Tribunal disagreed. Just because a variation takes place after a TUPE transfer does not necessarily mean that the transfer is the reason for that variation. The question was: what caused the employer to remove the allowance?

The EAT found that Mears removed the allowance because it was outdated. Even before the transfer, the previous employer had thought it was outdated (they had chosen not to do anything because they did not want to provoke the trade unions while business contracts were being renegotiated). The principal reason for removing the allowance was not the transfer. The evidence showed that it was removed because the working conditions no longer justified its payment. Thus the variation was not void and the electricians were not entitled to claim the allowance.

 New ACAS guidance on employee references 

ACAS has published new guidance dealing with giving references. Although there is usually no legal requirement to provide a reference, employers must deal with reference requests consistently. This minimises the risk of complaints from employees, especially those who say they have been treated differently because of a protected characteristic (such as their gender, race or disability).

Factual references have become increasingly common. This approach is fine provided employers deal with requests consistently. The guidance recommends that employers have a policy to help managers handle reference requests. The guidance also covers what references can include, confirming that they must be true, accurate and fair, and based on facts. Subjective opinions should be avoided. The guidance also looks at the potential circumstances in which it might be fair to give a 'bad' reference. For example, a true and accurate reference might show that the job applicant is not suitable for a particular role.

The guidance confirms that employees can seek damages for an inappropriate reference only if they can show that the information was inaccurate or misleading (and they have suffered some loss, by not securing the job). Employers should stick to the facts and provide honest information.

 Limiting Discrimination claims 

Can a tribunal make an employee choose their 'best ten' allegations in a discrimination claim? Not usually, said the Employment Appeal Tribunal in Tarn v Hughes. Dr Tarn was a GP. She brought claims for sex and pregnancy discrimination. She had agreed a list of issues with the employer, which contained 21 acts of alleged direct discrimination, 19 of harassment and 6 of victimisation.

At a preliminary hearing, the employment judge told the employee to choose the most recent and serious events to be dealt with at a hearing, to a maximum of ten. He said she could rely on the other allegations as background information or they could be dealt with at a later hearing. The judge said dealing with all the allegations was not a proportionate use of tribunal resources. Dr Tarn appealed.

The Employment Appeal Tribunal agreed with the employee. Apart from striking out claims which have no reasonable prospect of success, a tribunal has no power to limit the claims a claimant can pursue. Dealing with a sample of claims might be difficult in discrimination cases where the whole picture is relevant, and claims are linked. Perversely, separating claims out into different hearings might result in repetition of evidence and more time being taken to reach a conclusion. This could increase costs rather than reduce them. In this case there was a list of issues agreed between the parties already. The allegations involved much overlapping evidence. The tribunal was wrong to impose those limits.

This decision might be disappointing for employers facing the scattergun approach of multiple allegations which span a long period of time. Employers should insist on agreed lists of issues to nail the employee down on the allegations. Applications for strike out and deposit orders can be a useful tool where certain claims appear weak.

Time away from work with pay for parents who lose a child

The Parental Bereavement (Leave and Pay) Act 2018 has received Royal Assent. It will give bereaved parents the right to two weeks' leave within 56 days of losing a child under 18. Bereaved parents can also claim statutory parental bereavement payments during their leave, subject to certain qualifications (which are likely to resemble those seen in other family leave provisions). The leave can also be taken by parents who have experienced a still birth after 24 weeks of pregnancy.

More details will be given in Regulations, including notice provisions, evidence required and procedures to be followed by employers and employees. It will also set out how much pay employees will be entitled to. The Act is expected to come into force in 2020.

Disability discrimination

Is it disability discrimination if an employer deals with an ill health retirement procedure badly? Not necessarily, the Court of Appeal has said. Mr Dunn was employed by the Ministry of Justice. He had depression and a serious heart condition. He applied for ill health early retirement. The process was handled badly and was unnecessarily bureaucratic. But was this poor treatment because of his disability (direct discrimination) or something arising in consequence of it (discrimination arising from disability)? The employment tribunal said yes, but the Employment Appeal Tribunal disagreed.

The Court of Appeal agreed with the EAT. The employee was treated unreasonably. But unreasonable treatment does not always mean discrimination. The employment tribunal had failed to look at why Mr Dunn was treated badly, or how his employer would have treated someone without his disability. The employment tribunal had found many reasons for the unreasonable process: the system was arcane and cumbersome; cases were not properly managed; no single person had oversight of the whole process; and the system involved three different contracted out services. None of those reasons involved discrimination of any kind. The tribunal was wrong to uphold the employee's discrimination claims.

If an employee is unable to show that their treatment was motivated by discrimination, the only way they can show that their treatment is 'because of' their disability is by showing the process is inherently discriminatory. This means the criteria applied (in this case, the ill health retirement process) necessarily treats disabled people less favourably than those without disabilities. This argument was not used by the employee in this case, but the Court of Appeal indicated it was unlikely to be successful anyway. A process which is inherently defective is not necessarily inherently discriminatory.

The employer in this case won the case, but still came in for some harsh criticism in open court. Employers should scrutinise their internal processes, especially those which are likely to involve ill or disabled employees.

 And finally… 
Should emailing whilst commuting count as work?

A study by the University of the West of England argues that the working day is extended during commutes by advancements in technology. The study looked at 5,000 passengers commuting into London. Many employees were using their commuting time to send work emails from their phones and tablets.

Some passengers felt sending work emails was helpful as a 'transition' between home and work. One felt it was making use of 'dead time'. The study suggests that the extra work is added onto the day rather than replacing office hours. Researchers are calling for this time to be treated as part of working hours.

Working on a commute can be part of 'flexible working', which can increase productivity and create goodwill. One of the commuters in the study left the office early to make up for working on the way into work. Banning staff from sending work emails whilst travelling might be counterproductive and increase the time people spend in the office. And not everyone is working. No doubt some of those staring at their phones are chatting to friends on WhatsApp or watching the latest episode of The Apprentice.

There may still be some risk. The Working Time Regulations 1998 impose a maximum 48 hour working week, although employees can opt out. If working during a commute is 'working time', it could result in workers reaching the maximum weekly hours without an employer even knowing. It is worth keeping an eye on your staff and any work done during commutes. An employee who is doing extra work might also be struggling or have too high a workload, which an employer needs to know about too.