Employment Law: Unfair Dismissal and Discrimination against Disabled Employees, Lecture notes of Law

Download Employment Law: Unfair Dismissal and Discrimination against Disabled Employees and more Lecture notes Law in PDF only on Docsity! Page 1 of 13 LEVEL 6 - UNIT 19 – THE PRACTICE OF EMPLOYMENT LAW SUGGESTED ANSWERS - JUNE 2016 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2016 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. Question 1(a) Margaret may have a claim for direct sex discrimination. The unlawful act concerns access to promotion (s.39(2)(b) EA 2010) and discrimination as to who should be offered employment and refusal / deliberate omission to offer employment (s.39(1)(a) and (c)). It appears that Margaret been treated differently and less favourably in the interview and by not being offered the position of Marketing Manager, but was the reason for the less favourable treatment because of her sex? The burden of proof here is on Margaret. Can she establish facts on balance of probabilities from which an employment tribunal could infer discrimination? Given the attitude of Terry Hunt during the interview, this should not be difficult to prove. The burden of proof will then shift to Athena – the employer must show that the less favourable treatment was in no way whatsoever because of Margaret’s sex. What Terry said in interview will certainly make Athena’s job difficult. Is there any other reason why Craig Denton (who would be an actual comparator for Margaret’s claim) might have got the job? E.g. is he better qualified and/or does he possess more experience? There is no occupational reason exception here so Athena can only defend by denying there was any discrimination – its motives are irrelevant. In conclusion, Margaret’s denied promotion is capable of forming the basis of a claim, but it is too early to be confident as regards its chances of success. Page 2 of 13 Question 1(b) 1. The Claimant commenced employment with the Respondent as an administrative assistant on 1 May 2012. 2. The Respondent is a company specialising in the design, delivery and installation of bathrooms. The Respondent employs approximately 60 staff. 3. The Claimant was initially recruited as an admin assistant and has been promoted twice by the Respondent between 2012 and 2016. She is now the Assistant Marketing Manager, Henry Atherton, and has held this post since May 2014. 4. The Claimant is responsible for 4 of the 10 employees in the Respondent’s Marketing department. Her duties include checking the work of her team, dealing with customer enquiries and completing weekly advertising impact studies. Since approximately June 2014 she has also deputised for the Marketing Manager in his absence. 5. Since the Claimant began to work with the Respondent she has worked hard to improve her formal qualifications. She attended evening classes twice a week to secure A levels in Business, Marketing and Computer Studies in 2013. She is now in the second year of a part-time degree course in Marketing, which she is self-funding. 6. In or about May 2016, the position of Marketing Manager was advertised by the Respondent. 7. The Claimant applied for the post and was interviewed on 3 June 2016. The Claimant was interviewed by Terry Hunt, the Respondent’s Managing Director and by the Respondent’s Human Resources Manager, Elizabeth Lyus. 8. During the interview Mr Hunt focussed on the Claimant’s children rather than the post on offer. Mr Hunt alleged that the Claimant’s commitment to her work had diminished in the past few months and implied that this was due to her family circumstances. Mr Hunt expressed doubt that the Claimant would be capable of fulfilling the post of Marketing Manager because she had two young children at home. 9. The Claimant was surprised and distressed by Mr Hunt’s attitude. The Respondent had not, on any previous occasion, expressed any concerns about the quality of the Claimant’s work. In or about May 2016, Mr Hunt had actually commended the Claimant on her good work. 10. On 5 June 2016, the Claimant received a memo from Mr Hunt stating she had been unsuccessful with no reasons being given. 11. An e-mail sent to all staff later on 5 June 2016 confirmed that Craig Denton had been appointed to the position of Marketing Manager. Mr Denton had previously worked in the Respondent’s Finance department. 12. On 7 June 2016 the Claimant wrote to Mr Hunt to invoke the Respondent’s grievance procedure. A meeting was held with Charles Berry, the Respondent’s Assistant Human Resources Manager and the Claimant on 9 Page 5 of 13 The general rule is that these are void for restraint of trade, but may be permitted if the Respondent has a legitimate business interest to protect and the clause is no wider than necessary to protect this and is also reasonable in time, scope and geographical coverage, Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd (1894); Lansing Linde v Kerr (1991). Is there a legitimate business interest here? Would the breach result in actual or potential harm to Nitrosoft’s business? Jack Allen Ltd v Smith (1999). Does Nathan have knowledge about Nitrosoft’s clients? What about trade secrets or highly confidential information – e.g. the course prices and deals done with clients? If disclosed, is the information likely to cause real or significant damage to’ Nitrosoft? Applying this to the facts the answer is likely to be yes; it would enable a competitor to potentially undercut Nitrosoft and poach clients. Is the clause reasonable in relation to activity prohibited, time and area? It also must be no wider than necessary to protect the business interest. Activity Prohibited This would prevent Nathan from taking up the post with QStep but it would also prevent him from taking up a post with any ‘business solution organisation’. Consider what this phrase could cover. It is likely to be wider than Nitrosoft’s business requires and as such would be void. However, this part of the clause may be saved by use of ‘blue pencil test’ (doctrine of severance) leaving ‘IT Training’ in place. Time 12 months may be ok. If the information and client connections are subject to rapid change one year may be over long. How long do the contracts last? Geographical extent This must be no wider than the area in which employer did business and we do not have this information. However, the way this clause has been drafted is very bad. Employment tribunals will not choose between alternatives, so clause 9.1 will be void (for uncertainty). Is there any other way in which Nitrosoft can prevent the disclosure of the information regarding the prices given to its clients? Even in the absence of an express term, there is an implied duty not to reveal trade secrets or confidential information amounting to a trade secret after the end of employment, Faccenda Chicken Limited v Fowler (1986). Some of Nathan’s dealings relating to course prices may come into this category. The following will be taken into account: (a) What was the nature of the employment? (b) What was the nature of the information? (c) Did the employer tell the employee the information was confidential? (d) Could the information be isolated from other information which the employee was free to use? Page 6 of 13 Remedies Nathan is likely to be free to take the job (as clause 9.1 does not appear to be enforceable) but if he breaches the implied duty of confidentiality, Nitrosoft will be able to obtain an injunction preventing the disclosure and use of the information. Damages would also be available if Nathan does disclose such information and Nitrosoft can prove pecuniary loss. Nitrosoft could also seek damages from QStep. Question 3 (a) Reg 3(1)(a) provides that a relevant transfer includes a business transfer, namely: ‘A transfer of an undertaking, business (or a part of one) situated immediately before the transfer in the UK to another person where there is a transfer of an economic entity which retains its identity’ According to the EAT in Cheesman v R Brewer Contracts (2001), the entity in question must be sufficiently structured & autonomous but need not own significant assets. On the facts, RT was sold as a going concern and so would clearly be deemed an economic entity. The next question is whether it retained its identity post-transfer? According to the CJEU in Spijkers v Gebroeders Benedik Abattoir CV (1986), there are seven factors which employment tribunals must take into account. None can be examined independently of each other. Applying the facts to these: • the type of undertaking or business – both RT and LK are both concerned in the fast food service industry. • the transfer of tangible assets – the purchase included the shop premises, tinned produce, 2/5 food delivery trolleys, but not the sole van, kitchen fittings, furniture or uniforms. • the value of intangible assets – goodwill (at £150,000) makes a considerable portion of the purchase price. • whether the majority of staff are being taken over by the new employer - only 3/7 staff are being taken, but of those, it is arguable that the majority of staff in terms of skills are being taken over (as per the CJEU in Suzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice (1997)) as one of them is the chef. • transfer of customers – LK is acquiring the lunchtime delivery contracts as part of the deal. • the degree of similarity between activities before and after the transfer – whilst not identical, they are very similar – hot/cold food and beverages. • the duration of any interruption in those activities – there is an 8-week interruption, but this is quite a brief period in the business world and would not be viewed negatively. When taken as a whole, it is clear that the economic entity which was RT has transferred over and retained its identity. There has been a relevant transfer according to TUPE. Page 7 of 13 Question 3 (b) Devika Khan She was dismissed before the relevant transfer occurred. According to Reg 4, Devika’s dismissal by Evelina (the transferor) was effective, but liability arising from it may transfer over to LK (the transferee). Was Devika dismissed or treated less favourably because she requested flexible working? More information is needed regarding this aspect. However, if Evelina did dismiss her (even in part) because of the request, the qualifying period of employment is waived and dismissal will be classed as automatically unfair. Alternatively, she meets the standard 2 years’ continuous service requirement (she had worked for RT for 3 years), she was an employee (she worked under a contract of employment as a trainee commis chef), and this is not an excluded class of work. She was actually dismissed by Evelina. Devika will be within the 3- month limitation period as we are told the relevant transfer took place under 3 months ago and she has already applied for ACAS early conciliation. Was the transfer the ‘sole or principal reason’ for the dismissal? If so, was there an ETO reason for the dismissal? This is a question of fact for the ET to decide by looking at the circumstances surrounding Devika’s dismissal. We are told Evelina was asked by LK to dismiss Devika as she was surplus to its needs, so the relevant transfer would be the sole or principal reason for the dismissal. There can be no ETO reason entailing a change in the workforce as this must relate to the on-going business of the person who dismissed the claimant (as per Hynd v Armstrong (2007)) which it did not – as there was collusion between the parties. As such Devika’s dismissal was automatically unfair and her claim will be against LK as the transferee (Reg 7(2) & 7(3)). Todd Young He was dismissed after the relevant transfer occurred. According to Reg 4, Todd’s contract transferred to LK with continuity of employment intact. He meets the 2 years’ continuous service requirement, he was an employee (he worked under a contract of employment as a senior waiter), and this is not an excluded class of work. He was constructively dismissed by LK. Todd will be within the 3-month limitation period as we are told the relevant transfer took place under 3 months ago and he has already applied for ACAS early conciliation. Was the transfer the ‘sole or principal reason’ for the dismissal? If so, was there an ETO reason for the dismissal? Todd’s dismissal was a result of the attempted harmonisation of terms without agreement. The relevant transfer appears to be the sole/principal reason for the dismissal and the ETO defence would not be available. Whilst LK may have economic and/or organisational reasons for the reduction in salary, because it did not involve a larger reorganisation of the workforce with changes in numbers and/or job descriptions, it does not come within Reg 4(5)(a) or (b), and is therefore void. Page 10 of 13 Recent case law, including the CJEU in Kaltoft v Municipality of Billund (2014), has held that obesity can only amount to a disability when accompanied by an impairment of the individual’s ability to work on an equal basis to others. Individuals do not have to be incapable of fulfilling their employment tasks, but their ability to do so on the same basis as others must be impaired. The CJEU suggested that individuals with obesity and decreased mobility or resulting diseases that hinder work ability or cause discomfort that does so, may have a disability. Thus, it is the effect of obesity, not obesity in itself, which is important in deciding whether an individual has a disability. This means that April’s limited mobility and severe breathlessness caused by her morbid obesity would be deemed a physical impairment and, provided she meets the remainder of the statutory definition, also a disability. Normal day-to-day activities are not defined in the EA 2010. The Guidance states that the term refers to things that people do on a regular or daily basis and provides examples of having a conversation and walking. April has informed us that she has difficulty talking for long periods and her mobility is restricted through the need for rest after each step – thus her impairments are affecting normal day-to-day activities. Section 212(1) of the EA 2010 defines ‘substantial’ to mean ‘more than minor or trivial’. The Guidance states that this requirement ‘reflects the general understanding of ‘disability’ as a limitation going beyond the normal differences in ability which may exist among people’. The Guidance states that the time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity The additional time it takes April to walk about is clearly relevant here. The Guidance states that another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity if he did not have the impairment. That April climbs up and down each step followed immediately by the need for rest is relevant here. Also, that she has deliberately modified the way she speaks by shortening the length of her sentences in order to breathe more easily is another relevant factor for the employment tribunal. According to Schedule 1, paragraph 2 of the EA 2010, the effect of an impairment is long-term if it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected. The Guidance states that ‘likely’ should be interpreted as meaning that it could well happen, rather than it is more probable than not that it will happen. Even with her health regime, April’s morbid obesity is likely to last longer than 12 months (although not necessarily for the rest of her life). April therefore is disabled. Page 11 of 13 Question 4 (b) Section 39(2)(d) of the EA 2010 provides it is unlawful for an employer to discriminate against a disabled person whom he employs by subjecting them to any other detriment. Failure to make reasonable adjustments Under Schedule 8, Part 3, Paragraph 20 of the EA 2010, Ubernel will not be subject to a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know April has a disability and is likely to be placed at a disadvantage compared to a non-disabled person. On the facts here, the directors are clearly aware of April’s disability from their observation of her at work and especially from their recent conversation. The duty only arises if there is a ‘provision, criterion or (in this case) practice (PCP) which has been applied and which places April at a substantial disadvantage in comparison with persons who are not disabled’ (s.20(3)). In this case, the requirement for April to use the staircase and regularly converse on the phone places her at a substantial disadvantage to colleagues who have no mobility or conversing difficulties. As the duty has arisen, the burden of proof is upon Ubernel to show it has made a reasonable adjustment. The employment tribunal will first consider what adjustments might be made in the circumstances and then consider whether these were reasonable. The Equality and Human Rights Commission Code of Practice on Employment (the Code) provides examples of steps which an employer might take in relation to a disabled person in order to comply with the duty to adjust. For April, the relevant examples are making adjustments to premises, acquiring or modifying equipment and allocating some of the disabled person’s duties to another worker. The Code then provides that, in determining whether it is reasonable for an employer to have taken a particular step in order to comply with the duty, the following factors might be taken into account: • whether taking any particular steps would be effective in preventing the substantial disadvantage • the practicability of the step • the financial and other costs of making the adjustment and the extent of any disruption caused • the extent of the employer’s financial or other resources • the availability to the employer of financial or other assistance to help make an adjustment (such as advice through DWP’s Access to Work scheme) • the type and size of the employer Whilst it might not be reasonable for the lift to be changed or modified due to design and/or financial reasons (Ubernel will be expected to have investigated and properly costed this and have looked into financial assistance via Access to Work), having other staff cover the receptionist duties would cost very little (if anything) and have solved the problem completely. Page 12 of 13 It would therefore appear that there were reasonable adjustments that could have been made and Ubernel has failed to do so. There is no possible defence so April is will be successful in this claim. Discrimination arising from disability This claim is not available if Ubernel can show that it did not know, and could not reasonably have been expected to know, that April has a disability (s.15(2)).However, as stated earlier, the directors were acutely aware that she did. Has Ubernel treated April unfavourably because of something arising in consequence of her disability? Yes, she was treated unfavourably because she was given a written warning. The reason for the written warning is because April asked not to be part of the reception cover rota. The reason for her request was due to her difficulty in climbing the staircase and conversing on the phone for long periods, so this reason is clearly linked to her disability. The written warning is therefore discrimination arising from her disability. There is a potential defence for Ubernel – if it can show that the treatment was a proportionate means of achieving legitimate aim (s.15(1)(b)). Whilst its aim was legitimate (to cover staff absences by using other staff), Ubernel must balance the discrimination caused to April with its aim. The Code also makes it clear that employer will be unlikely to objectively justify the unfavourable treatment if the employment tribunal decides that there were reasonable adjustments that could have been made but the employer had failed to do so. On the facts, there were reasonable adjustments that could have been made, so any defence will fail and Ubernel will be liable. Indirect disability discrimination Section 19(1) provides that Ubernel will discriminate against April if it applies a PCP which is discriminatory in relation to a relevant protected characteristic. On the facts, Ubernel has implemented a practice with its reception cover rota. Section 19(2)(a) provides that this PCP must be applied to persons with whom April does not share the protected characteristic. On the facts, cover rota applies to all office administrators. Section 19(2)(c) states the PCP must put or would put April at the disadvantage. April is disadvantaged as ultimately she has been given a written warning. Section 19(2)(b) requires the PCP to put or would put persons with whom April shares the characteristic at a particular disadvantage when compared with persons with whom April does not share it. This is the tricky part of the claim because s.6(3)(b) states that ‘a reference to persons who share a protected characteristic is a reference to persons who have the same disability’ This means that April would have to show that obese people (as opposed to just disabled persons) find it harder to comply with the reception cover rota in these circumstances than people who are not obese.