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.


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


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

Where 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:

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.
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.
It considered an irrelevant factor – the desire to worship collectively with his family – when considering whether he had acted in good faith.
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.


More about zero hours contracts and other election proposals

On 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”.


The Apprenticeship levy – how am I affected?

As 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.


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

The 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:

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.
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.
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:


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.


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).


Does a ban on wearing headscarves amount to direct discrimination?

In a somewhat surprising decision, given the views expressed in some other recent cases, the Court of Justice of the European Union (CJEU) has decided that a ban on wearing headscarves at work does not (necessarily) constitute direct discrimination with reference to religion or belief. In  Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions the European Court was asked to consider a case which was referred from the Hof can Cassatie (Court of Cassation) in Belgium, where the respondent, G4S, operated from 2006 a policy of neutrality which prohibited the visible wearing of any political, philosophical or religious signs.

Samira Achbita, a Muslim, was employed as a receptionist with G4S in 2003. In 2006 she told her employer that she wanted to start wearing an Islamic headscarf during working hours. After a period of absence due to illness she notified her employer on 12 May 2006 that she was returning to work on 15 May and would be wearing the headscarf. On 29 May the G4S works council approved an amendment to workplace regulations which provided that, with effect from 13 June 2006 “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”. On 12 June Ms Achbita was dismissed because she refused to accept the new policy.

The CJEU noted that G4S’s rule covered any manifestation of political, philosophical and religious beliefs without distinction. The rule was not applied to Ms Achbita in a way which was different from the way in which it would be applied to any other employees. Consequently, there was no direct discrimination.

However, such a prohibition could constitute indirect discrimination if the apparently neutral obligation in fact resulted in people adhering to a particular religion or belief being put at a particular disadvantage. Even if that was the case there could nonetheless be a legitimate aim such as the pursuit of a policy, in relation to customers, of political, philosophical and religious neutrality, provided that the means of achieving that aim were appropriate and necessary. In that case the policy might be maintained, for example, by allowing Ms Achbita to wear hear headscarf at work, but not in a role which involved any visual contact with customers, as an alternative to dismissal. The matter was referred back to the Belgian court for further consideration accordingly.

Also reported at the same time was the case of Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers. In this case, prior to being recruited by Micropole, Asma Bougnaoui was told that wearing her headscarf might pose a problem if she was in contact with customers of the company. Initially Ms Bougnaoui wore a bandana during her internship. Thereafter she wore a headscarf. A customer complained and, relying on the principle of neutrality, the employer asked her to stop wearing the headscarf.


When does it become fair to dismiss an employee for long term sickness absence?

We are often asked what is the best approach to dealing with an employee who has been on extended sick leave. In general, it is necessary to establish that the employee is not going to be fit to return to work (on a full or partial basis) for the foreseeable future. Without this there is the risk that the employee could contend that they were about to return when they were dismissed or there could be a sudden improvement in condition which might curtail the expected absence. Of course, that assessment requires medical evidence so the process normally involves engaging the services of an occupational health consultant. Employers also need to be aware of potential disability issues.

These issues were recently considered by the Court of Appeal in O’Brien -v- Bolton St Catherine’s Academy. Ms O’Brien commenced work with the employer as an ICT teacher in 2005. In 2011 she was assaulted by a pupil. She did not suffer severe physical injuries but she was very shaken. On her return to work she was concerned that the school was not taking adequate steps to protect her. In particular she was dissatisfied by a refusal to reinstate a policy under which pupils who assaulted staff were automatically excluded.

In December 2011 she went off sick with a diagnosis of stress at work. After more than a year off work she was dismissed on 31 January 2013 on the ground of medical incapacity. her appeal against the decision to dismiss was rejected. Ms O’Brien presented a complaint of unfair dismissal to an employment tribunal. She also claimed that her illness constituted a disability and that she was either dismissed in circumstances giving rise to direct disability discrimination or that she suffered unfavourable treatment on account of her disability. She also claimed wrongful dismissal (breach of contract) because the school paid her in lieu of notice when it was not entitled to do so, as well as claiming arrears of holiday pay.

Her claims for automatic unfair dismissal and direct discrimination failed, as did the claim for holiday pay. However, she was found to have been unfairly dismissed and subjected to less favourable treatment on account of her disability. There was also a finding of wrongful dismissal.

In June 2015 the Employment Appeal Tribunal (EAT) found in favour of the school (save in respect of the relatively minor claim for wrongful dismissal). Ms O’Brien appealed to the Court of Appeal and judgment was handed down on 15 March 2017. Lord Justice Underhill considered the relevant law. He noted that evidence had been presented on behalf of Ms O’Brien at the hearing of the initial appeal against dismissal indicating that, according to an associate psychologist, there was, as at February 2013, a diagnosis of mild depression and severe anxiety. There was also a reference to post traumatic stress disorder but it was unclear whether this was in fact diagnosed. She contended that she was fit to return to work. In its decision on appeal the school determined that Ms O’Brien was not fit to return to work because her condition had not been fully treated and accepted that she was disabled within the meaning of the Equality Act 2010.


EAT Judgment: There can be no disability-related harassment claim without first establishing the disability

In the recent case of Peninsula Business Service Ltd v Baker, the Claimant had advised his manager that he had dyslexia and had also provided a psychologist’s report confirming the diagnosis.

The Employer’s occupational health provider prepared a report confirming that the Claimant was likely to be considered disabled and recommended reasonable adjustments, however the Claimant’s supervisor had reservations about this and thought that the Claimant could have engineered the report in his favour.

The Employer subsequently arranged for a private company to carry out covert surveillance of the Claimant, the reason for this being that they suspected that he was carrying out work for a second Employer. The surveillance report did not substantiate the Employer’s suspicions, however it did show that the Claimant was not devoting all of his time to his work. Disciplinary proceedings were commenced and a copy of the surveillance report was sent to the Claimant during these proceedings, despite not showing that he was engaged in any fraudulent conduct.

The Claimant brought claims at the Employment Tribunal, claiming that the surveillance was harassment (unwanted conduct relating to his disability) and also victimisation as the disclosures he had made about his disability were ‘protected acts’.

The Tribunal found that the surveillance could not be deemed to be harassment as the Claimant did not know about it at the time, however later telling him about it for disciplinary purposes was harassment. Furthermore the Claimant’s reliance on his asserted disability was the reason for the surveillance, so the conduct did relate to his disability. The Employer arranging the surveillance was also victimisation – as the Claimant’s performance appraisals had always been positive the surveillance could only have been triggered by suspicions about his disability.

The EAT allowed the appeal.