It’s not enough to have fair procedures: they must be applied fairly

In Buchanan v Commissioner of Police of the Metropolis the Employment Appeal Tribunal considered the case of a serving police officer who was disabled as the result of a serious motor bike accident while on duty (the bike’s brakes failed). The accident happened in late 2012 when he was responding to an emergency call. Following the accident he was diagnosed with serious PTSD and did not return to work. By April 2013 he was recognised as a disabled person within the meaning of the Equality Act 2010. By May 2013 the employer knew or could reasonably have been expected to know that he was disabled and during that month he was placed on the employer’s rather unfortunately named “Unsatisfactory Performance Procedure” (UPP).

The Procedure is derived from provisions in the Police (Performance) Regulations 2012. The Regulations define unsatisfactory performance as “an inability or failure of a police officer to perform the duties of the role or rank he is undertaking to a satisfactory standard or level”. The Procedure has three stages. Under the first, a line manager may require an officer to attend a stage one meeting to discuss performance or attendance. Following such a meeting an improvement notice may be issued. Alternatively the meeting may be adjourned or postponed so that the process does not have to proceed to the next stage.

The second stage is invoked if there has not been a sufficient improvement and involves a mandatory meeting. If a notice is issued then it must be a “final improvement notice”. The third stage (which was not reached in Mr Buchanan’s case) also involves a mandatory meeting, this time before a panel and witnesses may be called.

Sitting in the Employment Appeal Tribunal, His Honour Judge David Richardson noted that the Regulations make no express provisions relating to disability, but the Procedure includes plenty of opportunities for allowances or adjustments for disability to be made (for example by exercising the discretion not to call a first stage meeting). However, although the Procedure could be made to work in the case of a disabled officer, the question of disability would have to be addressed carefully by management in order to comply with the requirements of the Equality Act 2010. Judge Richardson observed that what was really required for an informed decision to be made in respect of disabled employees was medical evidence concerning the prospect of an officer returning to work and, if so, in what capacity, as well as opportunities for consultation with the officer about available options.

In Mr Buchanan’s case he was told on 21 August that he had to return to work on 9 September or face “UPP and all that it entails”.

Online assessments and discrimination

There is an increasing tendency for employers to use online services in order to carry out HR related functions, including assessments, job interviews and appraisals. This can be daunting even for the most confident and well-equipped candidates and employees. I have recently witnessed such a process in action, with an international employer using an American Company to carry out initial interviews on a system similar to Skype but with time limits for replies in the style of a TV quiz show.

While this may be something that many candidates and employees will just have to get on with, it has the capacity to present fairly obvious problems for those who are disabled or have other protected characteristics within the meaning of the relevant sections of the Equality Act 2010. As an aside, it also seems to provide almost the polar opposite of providing fair opportunities by anonymising applications for employment.

The issue of discrimination and online assessments was to the fore in the recent Employment Appeal Tribunal case of Muzi-Mabaso v Commissioners for HMRC. Mr Muzi-Mabaso joined HMRC as a Grade AA employee in September 2004. As was known to the employer he suffered from depression and was a disabled person for the purposes of the Equality Act 2010, thereby obliging the employer to make reasonable adjustments where necessary to take into account the effects of the disability.

In 2010 Mr Muzi-Mabaso was temporarily promoted to Grade Band O and undertook training over two years with a view to possible promotion to Grade HO. He did not pass the required module and therefore reverted to Grade AA with effect from 28 November 2011. However there was little available work for Grade AA employees. Mr Muzi-Mabaso was on sick leave from 14 November 2011 to 22 April 2012, having been certified as suffering from stress and depression. Efforts were made to find a post for him but he was told that promotion opportunities could arise only as a result of open competition. Shortly before he returned from sickness absence he was place in a redeployment pool. After six months in the pool, if a job had not been found, an employee would be deemed surplus, thereby opening the possibility of redundancy.

In April 2012 Mr Muzi-Mabaso brought to the employer’s attention his phobia of the job application process. He said that going through the process was very stressful for him and therefore put him at a disadvantage by reason of his disability. He submitted an application for a Grade O vacancy. However, he said that he could not complete the online test as part of the process because he was too stressed due to his disabilities, specifically his frame of mind and phobias.

An offer was made for his manager to sit in with him and talk him through the questions. He was also offered a private room with a computer and extra time to complete the form. There was also a discussion about doing a paper test. However all these options were rejected by him. His application was kept open pending further medical reports. The employer took the view that excepting him from the online process was not a reasonable adjustment, not least because of the high number of applicants, many of whom needed reasonable adjustments for medical reasons.

Mr Muzi-Mabaso brought two claims before the Employment Tribunal: indirect disability discrimination on the basis that he was part of a disadvantaged group and direct disability discrimination on the basis of alleged failure to make reasonable adjustments in his case. Both claims failed and a costs order of £5000 was made in favour of HMRC.

On appeal it was held that Mr Muzi-Mabaso had not suffered any particular disadvantage by being placed in the redeployment pool. The main issue was the online test and Her Honour Judge Eady QC had trouble with the Employment Tribunal’s reasoning in concluding that Mr Muzi-Mabaso was not placed at a substantial disadvantage in this regard.

what do the main political parties have in mind for employment law?

With the countdown to next May’s general election well under way and the party conference season behind us, now is a good time to look at what (if anything) the main political parties have in their pre-manifestos or policy briefings concerning employment law.

Conservatives
Nothing to see here! Having reduced access to employment protection by reverting to the two years’ qualifying period for protection from unfair dismissal and introducing fees for employment tribunals, the only policy announcements of note concern proposals to curb industrial action and zero hours contracts. The proposals concerning industrial action appear pretty reasonable: (i) the ballot must have been recent (industrial action took place this month based on a ballot in 2011) and (ii) there should be a minimum 50% turnout. It seems to me that these requirements should not be unduly onerous to comply with and will result in industrial action having a greater impact on the basis that there is a genuinely significant mandate and that this has been obtained recently.

I have already covered the proposal to ban exclusivity in zero hours contracts and the Government is currently consulting about how to put in place suitable anti-avoidance measures. There seems to be a consensus that zero hours contracts have been used to conceal poor and exploitative working practices and I’ve written another article this month about Sports Direct and the need for openness.

Labour
Unsurprisingly, Labour has focused on inequalities in the workplace, including the need for diversity monitoring, specifically highlighting social background and equal pay for women. Public sector employers may be required to publish information concerning the social background of employees while companies with over 250 employees may be required to publish the average pay of male and female employees, regardless of whether any equal pay issues have been identified in the organisation.

There is also a plan to increase the minimum wage from the current £6.50 and hour to £8 an hour by 2020. As commentators have pointed out, although it’s a good headline, the increase is not in fact much more than would be required to keep in line with predicted inflation.

Labour intends to “do something” about Employment Tribunal fees but precisely what remains unclear. There have been suggestions of a sliding scale according to the wealth of the individual to scrapping fees completely. However there has also been an announcement that there will be wholesale reform of the employment tribunals system so the issue may be academic. What we do know is that Labour is determined that reform will ensure that “affordability is not a barrier to justice”.

There are also plans to increase the number of apprenticeship schemes with the aim that “as many young people will do apprenticeships as go to university”. Finally, in his conference speech, one part that Ed Miliband did remember was an extension of employment rights (or perhaps more accurately quasi-employment rights) to Britain’s five million self-employed. Now that would be a radical development and would undoubtedly keep employment lawyers very busy for years to come.

is obesity a disability?

Under the Equality Act 2010 disability is a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on one’s ability to carry out normal daily activities. According to government guidance “Substantial” is more than minor or trivial – e.g. it takes much longer than it usually would to complete a daily task like getting dressed, and “long-term” means 12 months or more – e.g. a breathing condition that develops as a result of a lung infection.

What is potentially a landmark case was heard by the European Court on 12 June and the decision when delivered could have ramifications that require significant adjustments to working arrangements. Danish child minder Karsten Kaltoft weighs 25 stone. He was sacked by his local authority because he could not perform his duties. As a result of his size he is unable to tie children’s shoelaces.

Of course, the main dilemma here is whether the condition is regarded as self-inflicted or caused by, say, a genetic predisposition. Medical evidence in this regard is likely to prove to to be very contentious. And what of conditions which might have been caused or contributed to by obesity, e.g. diabetes? In Walker v Sita (2013) the Employment Appeal Tribunal noted that 21.5 stone Mr Walker suffered from 16 medical conditions which were compounded by his obesity. The employment tribunal found that he was not disabled since there was not a physical or organic cause of his conditions other than his obesity. The EAT disagreed and held that he was disabled on the basis that his physical and mental impairments were genuine and their cause was irrelevant. However it was noted that obesity in itself did not render him disabled. If the European Court decision goes in favour of Mr Kaltoft such distinctions will no longer matter.

Changes that may have to be implemented include special seating, access to the workplace and the location of car parking places. Further, employees will not be able to be dismissed merely because they are overweight.

In the UK 64% of adults are classed as overweight or obese, of which 23.1% are obese. The number of obese people has trebled in the last 25 years.

is John McCririck really in line for punitive damages?

According to aggrieved former Channel 4 Racing pundit John McCririck, he is entitled to damages for age discrimination of £3m since he was not retained by new producers IMG Sports Media when they took over TV horse racing coverage from Highflyer Productions on 1 January 2013. He says he is being represented on a no win no fee basis by specialist employment and sports law solicitor Stephen Beverley of West End firm Cavendish Legal Group.

Following the BBC’s abandonment of racing coverage, including the Derby, Royal Ascot and the Grand National, the new Channel 4 contract brings with it exclusive terrestrial coverage of racing on the Channel. Perhaps not surprisingly the team selected is drawn from both the prior BBC and C4 racing teams and among those not selected (in addition to Mr McCririck) were C4’s Derek “Tommo” Thompson (62) and the BBC’s Willie Carson (70).

72 year old McCririck issued a statement on 9 January:
Channel 4 and production company IMG Sports Media were yesterday each served a letter before action for age discrimination. After 29 years with Channel 4 Racing, on a rolling annual contract, I have been sacked without any consultation or cogent explanation. I am 72.

disability adjustments for exams

The second of this month's two disability cases, Burke v The College of Law & Anor, was a decision of the Court of Appeal concerning a mature student at the College of Law who had multiple sclerosis. He was seeking to qualify as a solicitor, and over the period of the legal practice course agreed a number of adjustments with the College to mitigate the effect of his disability. As the exams approached, he made requests for further special arrangements. These, including 60% extra time to complete exam papers with opportunities to take breaks, were agreed. However, part way through the exams, Mr Burke asked for yet more adjustments, including being allowed to take the remaining exams at home in Brighton and unsupervised. The College refused this, but did offer to arrange accommodation for him near the college during the exam period.