PBS HR Newsletter – June 2018

Teacher dismissed for showing horror film awarded for disability discrimination

A teacher dismissed for showing an 18+ horror film to a class of 15-year-olds has been awarded £646,000 for disability discrimination by the Court of Appeal.

Phillip Grosset was employed as an English teacher before he was dismissed in 2014. The school’s governors deemed that Mr Grosset, who suffered from cystic fibrosis, acted inappropriately in showing the 1978 film ‘Halloween’ to his class, without first clearing this with the children’s parents and he was subsequently dismissed for gross misconduct.

The previous EAT heard that Mr Grosset acknowledged that his actions were ill advised but that he acted in this way because of the added stress brought about by recent changes, including the appointment of a new head teacher and changes to examination procedures, which increased his workload and exacerbated his condition. It also found that although the school had originally made efforts to manage Mr Grosset’s disability, these adjustments did not continue, as the new head teacher was unaware of his condition.

The Court of Appeal upheld the decision of the EAT, agreeing that the teacher would have been unlikely to have shown the film if his workload has been adjusted to accommodate his condition. As the school failed to appropriately accommodate his  disability and reduce his stress, they were guilty of disability discrimination in dismissing him, regardless of whether or not they had known his actions had arisen from his disability.

This decision indicates that employers may be liable for disability discrimination when dismissing an employee for gross misconduct, even though their actions may not initially appear to be related to their disability. It also highlights the importance of maintaining accurate personnel files on staff when senior management changes and the need to fully investigate and consider the reasons behind instances of misconduct, particularly if the individual concerned is known to suffer from a disability.

Survey finds significant increase in employees working when sick

A recent health and well-being survey undertaken by the CIPD and Simplyhealth has found a significant increase in the numbers of employees working whilst ill.

Presenteeism, or working whilst ill, can have a negative effect on both employees and their organisations. It has an obvious impact on the productivity and performance of the individual, as their poor health impacts their work. Not taking sickness absence to enable them to return to full health will often result in the individual being ill for longer, whilst increasing the likelihood of fellow employees suffering from poor health also.

The CIPD/Simplyhealth survey reveals that 86% of organisations have observed presenteeism in the previous 12 months, an increase from 26% per cent in 2010.  However, only 25% of those who observed presenteeism have taken action to dissuade sick employees from attending work.  It also reports that ‘leavism’ is an increasing problem. The practice of staff using their annual leave entitlement to carry out work has been observed by 69% of organisations in the last year. Of those who observed this, however, only 27% made positive steps to manage this practice.  Unhealthy work practices are thought to be increasingly contributed to by the use of technology and 87% of organisations believe that a negative effect of technology is that it impacts on an employee’s ability to switch off from work outside of their working hours.

The CIPD advises that organisations who wish to encourage healthy workplace practices can consider taking practical steps to help employees switch off or focus on their health and well-being at work. These can include:

  • reviewing the absence management policy to ensure this is not overly restrictive and does not discourage taking time off work for genuine health reasons
  • reiterating rules around working outside of normal hours and whether employees are expected to “switch off” from their mobile devices
  • reviewing workloads and task management where employees are working during personal or holiday time
  • encouraging senior staff to lead by example and avoid sending emails or tasks outside of work hours, and
  • providing workplace health and wellbeing support, including recognising and embracing mental health awareness initiatives.

Recent case provides clarity on third party harassment

Originally, there were specific provisions in the Equality Act 2010 to deal with whether employers were liable for third party discriminatory harassment of employees. These provisions were known as the ‘three strikes rule’ because, if an employer was aware that an employee had been harassed by a third party on at least two previous occasions, it would be liable for the third incident of harassment that took place. However, these provisions were repealed as they were not often used and it was usually difficult for employees to establish three separate incidents of harassment.

The repeal of these provisions meant that it was not clear how, if at all, a complaint of harassment by a third party fitted into the remaining legal framework around discrimination. Case-law seemed to suggest that, if an employer created a hostile environment for an employee or failed to tackle discriminatory behaviour by a third party, it might still be liable.

In Unite the Union v Naillard, the Court of Appeal has provided clarification on this matter. The claim arose because someone employed by Unite the Union as a regional officer was bullied and harassed by two officials, who were employed by the airport, not by the union. The Court confirmed that, while every case should be considered on its own merits, an employer will generally not be liable for the harassment of an employee by a third party, unless the employer has failed to deal with the harassment in a manner that is also motivated by discrimination.

The Court of Appeal held that employers should not be liable for harassment by third parties as “negligent failure to prevent another’s discriminatory acts is a very different kind of animal from liability for one’s own”. It stated that if Parliament had intended there to be continuing protection against third party harassment, it would not have repealed the “careful and explicit scheme” set out in the Equality Act.

This decision provides helpful guidance on a difficult area of law and, for the moment at least, establishes that an employer will not be liable for harassment of an employee by a third party unless it has been motivated by discrimination in failing to effectively tackle that behaviour.  It should be noted, however, that this does not change the fact that employers will still be held vicariously liable where an employee is harassed by another of their employees.

This does also seem to leave a significant gap in the law, which means that employees who suffer harassment at the hands of third parties are unprotected. With the issue of sexual harassment gaining an ever-increasing profile, the Government has launched an inquiry into the sexual harassment of women and girls in public places which is expected to report shortly. The inquiry is considering whether to reintroduce some form of explicit third-party harassment protection. Other protective measures such as mandatory sexual harassment risk assessments for female workers and the extension of time limits in sexual harassment claims (from three to six months), are also under discussion.

Millennials too scared to change careers

Recent research has found that most millennials – those born between 1980 and 1999 – have avoided changing their career, despite high levels of dissatisfaction, due to worries that they will not succeed.

The study undertaken by Teach First, an education charity, indicates that 53% of millennials have always worked in the same job sector.  33% of respondents stated that they have been put off a career change because they would have to start at entry level and 32% said that they feared that a change would not work out.  Nearly a quarter also said that they could not change careers because retraining would cost too much.  The charity observes that the findings seem to go against the stereotype of the ‘footloose’ millennial, constantly switching jobs and careers, rather than opting a ‘job for life’.

Most alarmingly, the survey also revealed that 32% of millennials found their current career only slightly, or not at all, fulfilling and that 60% said that they gained little sense of achievement from their work.  Fear of failure and the barriers created by the cost of retraining seem to be common reasons for not changing to careers, which in the long-run might be more fulfilling.

Supporting employees during Ramadan

Ramadan occurs during the ninth month of the Islamic calendar. It is a period of 29 or 30 days (dependent on the lunar calendar) and the precise timing varies each year. This year Ramadan falls between 16 May and 14 June. During Ramadan most Muslims will fast during daylight hours. It is also a time for prayer and reflection and increased charity work.

Employees are protected from discrimination on account of their religion or belief under the Equality Act 2010.  Therefore, refusing a request for time off to observe Ramadan, for example, when other employees are allowed time off for Christmas, or imposing a requirement that adversely impacts on Muslim employees which cannot be justified, such as a requirement to work particular hours, may amount to discrimination and could result in a claim against the organisation.

Employers must therefore consider carefully any requests from employees that are related to their religion or belief and must look at the impact of the organisation’s activities or requirements on those who have particular religious or other beliefs.  Whilst it is possible to refuse such requests, providing there is a clear business reason for doing so, ACAS advise that employers would be best served taking a flexible approach and working with the employee to come to an agreeable solution.  Organisations could, for example, consider whether it is possible to amend working hours, or patterns of work, during Ramadam, or whether there can be flexibility in break times to allow for observance of prayers etc.

The successful defence of a claim for discrimination often depends on an employer’s ability to demonstrate that it legitimately considered the request and whether it could be accommodated. Decisions should therefore be made following careful consideration of all the facts and the discussion, decision and rationale should always be recorded in writing.

New Dress Code Guidance published

The Government Equalities Office has published its latest guidance on the issue of workplace dress codes. The guidance is a direct response to requests made earlier this year by both the Women and Equalities and Petitions Select Committees and provides best practice recommendations for dress code policies.

The guidance advises that, whilst dress code policies remain lawful, they should not be constructed in a way that disadvantages one employee over another. Additionally, whilst dress codes for male and female employees do not have to be the same, the standards imposed should be equivalent and any less favourable treatment on account of gender runs the risk of direct discrimination. To mitigate the risks, employers are advised to avoid gender specific requirements altogether.  Requiring female staff to wear high heels, make-up or have manicured nails, for example, is likely to be unlawful, where there is no equivalent requirement for men.

Employers are also advised to consider if there is a valid business reason for enforcing a specific dress code and if this is truly required to achieve a legitimate business aim. For example, employers in formal settings who wish for their staff to dress smart can reasonably achieve this aim without requiring female employees to wear high heels.

The guidance also recommends that dress codes should:

  • Not be a source of harassment at the hands of colleagues of customers
  • Take into account relevant Health & Safety requirements
  • Allow for reasonable adjustments under the Equality Act 2010
  • Allow transgender staff to dress in line with their gender identity
  • Allow flexibility around religious symbols and jewellery

Plans to offer financial incentives to employers to take on ex-offenders

A proposed new scheme is set to offer financial rewards to organisations who employ qualified ex-offenders.  These plans form part of the ‘Inmate education and employment strategy’ which was recently unveiled by the Justice Secretary David Gauke MP. The strategy looks to increase employment rates amongst ex-offenders, as currently only 17% are in taxpaying roles a year after their release.

A key part of the plan will see inmates receiving a variety of training aimed at improving their skills and job prospects from the day they enter prison. In some cases, prisoners will even be able to work towards industry recognised qualifications whilst serving their sentence. Prison governors will be given greater autonomy to tailor courses to meet the demands of businesses in their local area, giving ex-offenders a greater chance of finding a job on their release.

As a reward for hiring ex-offenders under this programme, organisations will be given a national insurance contribution holiday, which could lead to a significant annual saving. The ‘New Futures Network’ body will be set up with the objective of working with organisations to create job opportunities and allow them to take advantage of this tax break opportunity.

Alongside this, an open consultation has been launched to obtain opinions on how to get more risk-assessed prisoners out of their cells and into real workplaces.

Constructive dismissal decision

Constructive dismissal can be a difficult area of employment law. Employees may allege that their employer has breached the implied term of mutual ‘trust and confidence’ in the employment contract, either through a single serious action, or a series of smaller incidents that cumulatively amount to a fundamental breach. In the latter case the employee must identify the ‘last straw’, or the final incident that prompted them to resign. They also need to satisfy the Employment Tribunal that they resigned, at least in part, because of that particular event and that the resignation followed quickly after it took place.

In Kaur v Leeds Teaching Hospitals NHS Trust, an employee who resigned following an unsuccessful internal appeal against a disciplinary penalty, was held to have no reasonable prospects of success in her constructive dismissal claim. It was considered that the ‘last straw’ she had identified was “innocuous” and did not breach her contract.

Ms Kaur was employed by the Trust as a nurse and was subject to a formal capability procedure, which she alleged was unjustified. Later, she complained of bullying by colleagues. Following an altercation between Ms Kaur and another staff member in April 2013, the Trust began disciplinary proceedings. In October 2013, the disciplinary panel found her guilty of inappropriate behaviour and issued a final written warning. Her appeal against this penalty was rejected in July 2014 and she resigned the next day.

The Employment Tribunal held that the ‘last staw’ event that triggered her resignation could not be considered to be the disciplinary process or appeal, as the Trust had acted fairly and properly throughout the process. They also felt that it would not be the April 2013 altercation with a colleague, as she had waited too long to resign and had effectively accepted this alleged breach of contract.

The Employment Appeal Tribunal and Court of Appeal ultimately agreed.  They considered whether an old breach of contract, which has apparently been accepted by the employee, can be revived if another breach occurs much later and concluded that it can.  However, in this case, the old incident (the altercation between the Claimant and her colleague) was never brought back to life, as no further breach of contract took place.

Importantly, for employers, this case demonstrates that a properly followed disciplinary process, or its outcome, cannot be a fundamental breach of contract for the purposes of a constructive dismissal claim and cannot contribute to a series of events that are alleged to cumulatively breach the contract. Additionally, the Court of Appeal confirmed that it is perfectly acceptable to consider an employee’s grievance alongside a closely related disciplinary matter, rejecting the employee’s argument that failure to deal with the grievance first was unfair.

This newsletter was curated by Nicole Squires, MA, Chartered MCIPD, an Executive Consultant at People Based Solutions. People Based Solutions is an HR support company that specialises in supporting small and medium sized businesses meet all of their HR commitments. If you want to know how People Based solutions can help you meet your HR and Employment Law obligations click here for your free HR Health Check. Alternatively, you can call us on 01925 425 857, send an e-mail to enquries@peoplebasedsolutions.co.uk or Click Here to visit our website.