Providing information about sickness absence in a reference ruled as discriminatory

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services Commission audit report in 2006 the LSC contract with the CAB, for which Mr Mefful was responsible, was found to be “outstanding in quality and performance”.

He was absent from work from November 2009 to January 2010 due to grief and a stress reaction after he and his partner lost a baby. In 2012 he suffered severe and constant shoulder pain as well as total hearing loss in one ear, tinnitus and vertigo. An employment tribunal determined that these conditions meant that he was suffering from a disability within the meaning set out in the Equality Act 2010. He took 63 days off work between April and July 2012. In August of the same year he was made redundant.

Mr Mefful brought claims of unfair dismissal (upheld) and disability discrimination (continuing) but the judgment I am reporting here concerns separate proceedings relating to the provision of a reference by the CAB to a prospective employer. At the time the CAB had guidance concerning the provision of a reference which included the following:

“Any reference provided by the Bureau for an employee should be well researched and avoid unfounded opinions. If negative, it should not refer to matters not previously raised directly with the employee. If asked to speculate on suitability, it should be cautious and where necessary use a disclaimer. It should aim to offer a balanced view without being too glowing or too damning unless wholly merited.”

In May 2015 Mr Mefful applied for the post of Welfare Benefits Advisor at One Housing Group Limited. He was interviewed on 3 June and offered the post on 4 June, subject to a satisfactory reference. He was contacted by One Housing on 12 June because they wanted him to commence employment as soon as possible. At the time Mr Mefful was engaged in his separate employment tribunal claim and it turned out that the provision of the reference had been stalled because, in the words of Ms Harris, a former Chair of Trustees and a member of the strategy group, in an email sent to a colleague on 26 June, she described the reference application as being “very problematic”. She noted that “…the way that he has conducted himself in the [unfair dismissal and disability discrimination] litigation has been totally dishonest”.

Although denied by each of them when giving evidence, the tribunal found that Ms Harris and Ms James, CEO of the CAB, had consulted in detail about the reference. It was eventually completed by Ms James on 29 June. Sickness absences had been filled out in the form. In answer to a question about whether the CAB would re-employ Mr Mefful, the answer given was “no”.

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Unfair dismissal resulting from demotion to do “officey things”

Easington Lane Primary SchoolZena Dickenson worked for 21 years at Easington Lane Primary School. From 2009 she was employed as the School Business Manager. She was responsible for a £1.2 million budget and she had 15 employees reporting directly to her.

In 2015 it became apparent that there would be an overspend and reduced income for reasons including shortfalls in the ‘pupil premium’ income and income from ‘early years’. She was approached by a clerk/receptionist, Kellie Todd, who wanted to know what her prospects were. Mrs Dickenson said that she could not be guaranteed additional hours in the future and there was a possibility that there would be redundancies. Ms Todd reported to a senior teacher, Hannah Wardle, that she was upset as a result of the conversation with Mrs Dickenson. Hannah Wardle in turn reported the matter to head teacher, Sarah Nordstrom, who commenced an investigation. The school’s HR adviser, Paula Barclay, interviewed Hannah Wardle, Kellie Todd and others and prepared draft witness statements for them. She advised Sarah Nordstrom as follows:

“I would start with

“There are some rumours in the school that there is going to be redundancies next year – what you know about this? and let her speak.

“If her response is she doesn’t know anything about it probe a little by asking if she denies having any conversations with colleagues about redundancy, reducing hours etc.

“Then ask her how this risk has not been brought to your attention and why it has not been reported on in the recent Finance meetings.

“If you believe the explanation about the budget stacks up you may choose not to suspend her. However, I think we both agree that she has stepped outside of her remit as Business Manager and SMT in divulging this information to colleagues. Therefore you can tell her you have concerns about this and an investigation will take place but you could do this with her still at work. However, unless she comes up with some plausible explanation which eliminate your concerns about funds the prudent approach would be to suspend her to allow a full and fair investigation to take place.

“Explain to her that this is not disciplinary action and that she will be paid while she is off. She will receive a letter confirming the position and she should not speak to anyone about this.”

Mrs Dickenson was duly suspended on 9 December 2015 to investigate allegations that she had a discussion with a colleague about the risk of redundancies when this had not been discussed by the senior leadership team and that, despite having the discussion she had not raised financial concerns with the senior leadership team. After a couple of false starts a disciplinary hearing took place on 26 February 2016. It was agreed that her suspension would be lifted. On attending work the following Monday she found that her security pass had been disabled. She was told not to go into the office but to wait in reception. The head teacher informed her that a performance improvement plan was to be put in place. She would no longer have any line management responsibilities and she would have to work in the main office at reception updating the school’s database until the plan was put in place.

Mrs Dickenson became distressed and said that she would like to be considered for redundancy. She was taken home and remained off sick until she resigned.

In the meantime Paula Barclay sent her two letters, one asking her to attend a formal absence review meeting and the other asking her to attend a protected conversation meeting. Mrs Dickenson did not attend the meetings. However there were negotiations via her union rep which led to a proposed termination date and settlement figure. After obtaining legal advice a revised offer was made on her behalf which the employer was not prepared to meet.

On 26 April she wrote and submitted a letter of resignation, providing the requisite three months’ notice. She set out various grounds on which she considered that both she and her position had been undermined. In particular she noted that Mr Trotter, the deputy head and occasional acting head, had effectively demoted her to the position of receptionist and that she had been told by him to do “officey things”.

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Deliveroo makes changes to contracts for UK Couriers

Following on from my colleague Martin Malone’s article back in March, takeaway delivery Company Deliveroo have now removed the clause in their self-employed courier’s contracts (or ‘supplier agreements’), which stated that the couriers would not be permitted to challenge their self-employed status at an Employment Tribunal.

New contracts (which are now just four pages long) have been distributed to the couriers,  and confirm that they can work for other businesses and no longer need to provide two weeks’ notice to terminate their contract with Deliveroo.

Dan Warne, Deliveroo UK MD, provided the couriers with a letter by way of further explanation, which stated the following:

“We know that many riders work with other companies as well as Deliveroo, including our competitors. That is fine with us: as an independent contractor you are free to work with whoever you choose and wear whatever kit you want.

“There continues to be no requirement to wear Deliveroo branded kit while you work with us, but please make sure that whatever you wear while riding means that you are safe and visible to other road users.

“This new simple supplier agreement for riders makes it easier than ever to work with Deliveroo. It makes clear that our riders are able to log in to work with us whenever they want – allowing them to fit their work around their life rather than their life around their work.”

The changes have been made following criticism from the House of Commons Work and Pensions Committee, who advised that companies such as Deliveroo, Amazon and Uber, deprived workers of their rights with the wording of the contracts previously utilised.

The distribution of the new contracts also came less than a day after the leak of Labour’s draft manifesto, which contained a proposal for the ‘gig economy’ to assume workers are employees unless proven to the contrary.

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Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination.

Background

The facts of the case were that the Government Legal Service (GLS) was recruiting lawyers in what the EAT later called “a fiendishly competitive recruitment process”. Applicants would be required to complete and pass a multiple choice ‘Situational Judgment Test’ (SJT), in order to be invited for interview.

Prior to commencing the test the Claimant, Ms Brookes, contacted the GLS and asked if adjustments could be made due to her Asperger’s – in particular, she asked if she could give her answers in a short narrative format rather than multiple choice so that she was not placed at a disadvantage.

Unfortunately, the GLS advised her that an alternative test format was not available, however did state that additional time allowances might be permitted for tests taken at a later stage following the successful completion of the entry tests.  The Claimant therefore completed the SJT in its existing format and failed, albeit she scored just 2 points under the pass mark required.

Ms Brookes brought claims of indirect disability discrimination and failure to make reasonable adjustments at the ET, arguing that the multiple-choice format of the test placed her at a disadvantage in comparison to other candidates who did not suffer from Asperger’s.  She further claimed that there could be no justification for this, and no reasonable adjustments had been made to the process.

The decisions

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Is requesting a holiday from July to September manifestation of a religious belief that is capable of protection?

Sardinian churchWhere do you draw the line with protection of workers on the grounds of religious or philosophical belief? It is a question that I have been addressing in this blog ever since protection from discrimination on these grounds was first introduced. It is logical that there is a limit. For example, if a person’s belief is used as justification for discriminating against others, there can be no case for allowing the alleged victim of discrimination him or herself to engage in discriminatory acts. Another question is whether and if so at what point the manifestation of a religious belief tips over the edge between a “reasonable” accommodation and one which, perhaps for a number of reasons, “just goes too far”. That leads us to the remarkable case of Mr Gareddu, a practising Roman Catholic of Sardinian origin.

Gareddu v London Underground Limited concerned Mr Gareddu’s requests for summer holidays running from 27 July to 2 September (five consecutive weeks). He joined London Underground in 1990 and was entitled to 38 days’ holiday per year (including Bank Holidays). From 2009 to 2013 he took five weeks’ consecutive summer holiday to travel to Sardinia with his two brothers to visit his mother and attend a number of religious festivals, up to 17 per visit. He said that he would attend the festivals for those saints with whom he felt a particular affinity.

In March 2013 a new line manager, Mr Cross, took over. He refused the request for five weeks’ holiday and said that, in future, he would be unlikely to be granted more than 15 continuous days during the summer holiday period. As it happened the 2014 trip was pre-booked and allowed but a holiday request from 27 July to 2 September 2015 was refused. Mr Gareddu contended that this amounted to indirect religious discrimination, contrary to section 19 of the Equality Act 2010.

At a tribunal in December 2015 Mr Gareddu’s claim failed on the basis that the “asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September” was not made in good faith. While attending religious festivals was a manifestation of religious belief, being required to do so within a specific five-week period was not in itself a specific manifestation capable of protection under the Act.

Mr Gareddu appealed to the Employment Appeal Tribunal on four grounds:

  1. The tribunal took the wrong approach by failing to make findings as to the provision, criterion or practice (PCP) in issue, whether the employer applied that PCP to people with whom Mr Gareddu did not share the characteristic of being a Sardinian Catholic, whether participating at numerous religious festivals was a typical manifestation of the religious beliefs of Sardinian Catholics, whether Mr Gareddu was put at a disadvantage as a result of the PCP and, if so, whether the disadvantage was justified as a proportionate means of achieving a legitimate aim.
  2. The tribunal imposed an unwarranted additional requirement that religion should be the sole or primary motivation for the manifestation in order to benefit from protection under section 19.
  3. It considered an irrelevant factor – the desire to worship collectively with his family – when considering whether he had acted in good faith.
  4. It adopted a perverse construction of Mr Gareddu’s evidence by finding that he had claimed to attend the same 17 events annually and, flowing from this, that he had changed his evidence in the course of the hearing.
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More about zero hours contracts and other election proposals

McDonaldsOn 29 April the Labour Party announced that, as part of its 20 point election package for workers, it would ban zero hours contracts, end unpaid internships and end the public sector pay cap. Although well-received by many, the subsequent round of interviews on the Sunday morning politics shows quickly flagged up a problem: what about those who want to be employed on zero hours contracts? It was pointed out that these contracts are convenient for many, including students who want to earn some casual income when time permits. Another problem with a ban is where the line is drawn. Would, four, six or ten hours’ contracts be permitted?

Meanwhile, McDonalds has announced that it is giving 115,000 workers on zero hours contracts (approximately 10% of the entire UK zero hours workforce) the option of moving to fixed contracts with a guaranteed number of hours per week. The move came in response to feedback from staff that they were struggling to obtain loans, mortgages and phone contracts without being able to demonstrate that they had a secure income. However, in the trial run at 23 sites, 80% of staff chose to stay on their existing contracts when offered four, eight, 16 or 35 hours per week contracts (in line with their existing typical working hours).

Other notable proposals in the Labour Party’s Promise to Workers include:

  • guaranteeing trade unions a right to access workplaces;
  • four new Bank Holidays;
  • full employment protection from day one (rather than, for example, the two year qualifying period for protection from unfair dismissal);
  • abolition of employment tribunal fees;
  • doubling paid paternity leave and increasing the rate payable;
  • strengthening protection from redundancy when the individual concerned is pregnant or on maternity leave;
  • reinstatement of protection against third party harassment.

The Conservative Party has announced that its manifesto will include the replacement of the Mental Health Act and “sweeping reforms” to the Equality Act 2010 “to protect those with depression and anxiety from being discriminated against at work”.

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The Apprenticeship levy – how am I affected?

moneyAs you may have expected, the Government’s initiative to introduce three million new Apprenticeships by 2020 has created a funding dilemma – the solution being that the shortfall will essentially be funded by employers in England who have an annual pay bill of over £3m.

The levy came into force on 6 April 2017 and is set at 0.5% of an employer’s total wage bill. It is paid via PAYE monthly and in return, each employer receives an annual allowance of £15,000 to spend on approved apprenticeship training programmes – this allowance is also applied monthly and any funds not used by employers can be carried forward.

Employers are able to access a ‘digital apprenticeship service’, an online system where they can manage how much they are spending, and recruit apprentices through various training providers.

Many employers have argued that they should be permitted to decide how their own training budgets are allocated, whilst others are concerned that the initiative has placed more emphasis on the quantity rather than quality of training provided.

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Can workers receive payment for ‘sleeping’ at work?!

asleepThe Employment Appeal Tribunal (EAT) has recently considered this question, more specifically whether workers are entitled to the national minimum wage when ‘on-call’ (or sleeping!) at work.

In the case of Focus Care Agency v Roberts, along with two other cases heard at the same time (Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake), Mrs Justice Simler (President of the EAT) assessed whether the Tribunals had been correct in deciding whether ‘sleep-in’ time should be considered ‘time work’ for the purposes of the National Minimum Wage Regulations.

The EAT essentially concluded that it depends on the circumstances – although it disapproved of the approach taken where workers are deemed to be working simply by being present on the employer’s premises or even provided with accommodation when being on-call. The EAT decided that a multi-factorial approach was required, or in other words it depends on the facts of each case.

Employers will obviously be asking themselves at this point how you differentiate between cases where a worker is “working” throughout a sleep-in shift, being paid to be on the employer’s premises “just in case”, and those where a worker is “on call” and not deemed to be working the entire time? The EAT guidance provided is as follows:

  1. Consider the employment contract in addition to the nature of the engagement and the work to be carried out. Does the contract provide for the period in question to be part of the employee’s working hours? Depending on the facts of the case it may be appropriate to consider whether the contract provides for pay to be calculated by reference to a shift or by reference to something else, and if so, to what; or to whether a period is directly specified during which work is to be done.
  2. The fact that a worker has very little/nothing to do during certain hours does not mean that they are not working. A particular level of activity is not required. An individual can be working simply by being present even if they are simply required to deal with unexpected circumstances, but are otherwise entitled to sleep – this is the case even where the likelihood and frequency of an untoward matter arising is low.
  3. No single factor is determinative and the weight each factor carries varies according to the facts of the particular case in question. Potential relevant factors in determining whether a person is working by being present include:
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Communicating notice of termination of employment – when does the notice period start?

In many situations the date on which someone receives notice of termination of employment and the corresponding date on which termination takes effect are neither here nor there. In other cases they can be critically important. One such case was recently considered by the Court of Appeal in Newcastle Upon Tyne NHS Foundation v Sandi Haywood.

Mrs Haywood was employed as an associate director of business development at Newcastle PCT from November 2008 to April 2011. She was on a salary of £84,446 p.a. and her contract provided for a minimum notice period either way of 12 weeks. Following a merger in April 2011 her contract was transferred to Newcastle Upon Tyne NHS Foundation. She was advised that she was at risk of being made redundant and a discussion meeting took place on 13 April 2011. It was confirmed at the meeting that no decision had been made about redundancy, alternative posts were considered and she was informed that she would be entitled to an NHS pension of about £200,000 if she was made redundant after 20 July 2011. She accepted that her post was redundant.

Mrs Haywood commenced sick leave immediately, brought on by the stress of the meeting. She commenced annual leave on 18 April and was on holiday in Egypt from 19 to 27 April. She remained on sick leave until 20 May 2011.

Her redundancy was confirmed. However, the key question left to be answered was whether she received her 12 weeks’ notice of dismissal before her 50th birthday on 20 July since that would have a significant effect on her pension entitlement. The employer maintained that notice was given that would expire before her birthday but she did not read the letter until her return on 27 April, so that if notice was calculated from that date it would expire after her birthday.

Notice was provided in a recorded delivery letter which was collected from the sorting office by her father in law on 26 April. There was also an email to Mrs Haywood’s husband’s email account , which was sent on 20 April at 10:55. A letter was also sent by normal post but this was disregarded as an effective method of communication. All the communications provided 12 weeks’ notice purportedly terminating on 15 July 2011. Mrs Haywood was also placed on garden leave. For the notice period to include her 50th birthday the notice would need to have been served by 26 April 2011. Mrs Haywood said that she opened the recorded delivery letter at 08:30 on 27 April and Mr Haywood did not read the email until 10:14 on the same day.

Sitting in the High Court in Leeds Judge Raeside QC decided that she was only given notice when she read the letter so that she remained employed up to and including her 50th birthday. She was therefore entitled to the better pension terms. The employer appealed and the matter was heard by the Court of Appeal in mid-February 2017 with judgment handed down on 17 March.

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Sickness absence at an all time low

The Office for National Statistics has published its annual report on sickness absence covering 2016, revealing that absence was the lowest recorded since records began in 1993. There were an estimated 137.3 million working days lost, equivalent to 4.3 days per worker.

The most common reasons for absence were coughs and colds (accounting for 34 million days / 24.8%), followed by musculoskeletal problems including back pain, neck and upper limb problems (30.8 million days / 22.4%). After “other conditions” the next distinct category was mental health issues, including stress, depression and anxiety, which accounted for 15.8 million days / 11.5%.

The statistics reveal that there has been a steady reduction in the overall number of sickness absences over a number of years.

The demographic breakdown highlights higher rates of sickness absence for women (2.5%  versus 1.6% for men). Older workers (2.9% for over 65s) are, unsurprisingly, more likely to be absent than younger ones (1.5% for ages 16 to 34). In  this context it is notable that the employment rate of those aged over 65 has more than doubled since 1993 and at October to December 2016 stood at 10.4% of the workforce (1.2 million people). While this trend indicates a need for employers to deal with more sickness absences, assuming that this trend continues in coming years, it is perhaps surprisingly counteracted by a reduction in the rate for 50 to 64 year olds from 4.4% to 2.7%.

The statistics revealed a 2.5% absence rate for smokers by comparison with 2.3% for ex-smokers and 1.6% for those who have never smoked.

The regional breakdown reveals that the highest sickness absence rates are in Wales and Scotland, followed by North East and North West England, while the lowest rates are in London and the South East. The research explains that this is because of the younger age profile, combined with a concentration of high-skilled jobs (which tend to have lower absence rates).

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