Sintons Employment Law E-Bulletin – Issue 70


  • Disability discrimination claims on the rise due to workplace stress
  • Guidance on whether a mistaken belief will amount to unfavourable treatment – iForce Ltd v Wood UKEAT/0167/18
  • Guidance on the National Minimum Wage and on-call staff – Frudd v The Partington Group Ltd UKEAT/0240/18/OO
  • Teaching assistant dismissed over anti-LGBT Facebook post

Disability discrimination claims on the rise due to workplace stress

The number of disability discrimination claims brought before employment tribunals rose by 37% from 2017 to 2018, according to research obtained by Fox & Partners.

Stress-induced mental health issues are identified as the main reason for the increase, alongside a growing willingness of employees to bring claims against employers relating to mental health.

Employers should be aware of their duty under the Equality Act 2010 to make reasonable adjustments for disabled workers.

Guidance on whether a mistaken belief will amount to unfavourable treatment – iForce Ltd v Wood UKEAT/0167/18

The Employment Appeal Tribunal (EAT) has given guidance on whether a mistaken belief will amount to unfavourable treatment.

Background

The Claimant worked for the Respondent as a packer in one of its warehouses. The Claimant suffered from osteoarthritis and was disabled for the purposes of the Equality Act 2010. In 2016, the Respondent introduced a change in working practices with a view to improving productivity.  This change involved the Claimant being moved to benches located near the loading doors. The Claimant erroneously believed that this was a colder and damper part of the warehouse. Concerned that such conditions would exasperate her osteoarthritis, the Claimant declined to work at the newly designated benches. The Respondent carried out an investigation which revealed that there was no material difference in the temperature or humidity between the end benches and the inner benches. Despite the Respondent’s efforts to reassure the Claimant, she refused to move. The Respondent found no reasonable explanation for the Claimant’s refusal to comply with the new working practices. Following a disciplinary hearing, the Claimant was issued with a final written warning, later downgraded on appeal to a first written warning. The Claimant later began long-term sick leave as a result of work-related stress.

Employment Tribunal

The Claimant successfully brought a claim against the Respondent for unlawful discrimination arising from her disability. The Employment Tribunal (ET) found that the warning was issued because of Ms Wood’s refusal to work on benches near the loading doors, which in turn, arose based on her belief, albeit mistaken, that acceptance would adversely impact on her osteoarthritis. As a result, the ET held that the Respondent had subjected the Claimant to a detriment by issuing her with a written warning which was unfavourable treatment because of something (her refusal to comply with the change in working practices) arising in consequence of her osteoarthritis. According to the ET, the Claimant did not refuse for any reason other than her mistaken belief that complying with her manager’s order would worsen her symptoms.

Employment Appeal Tribunal

The Respondent subsequently appealed. Looking closer at the objective test, the EAT found that the correct question was whether it could be said that her mistaken belief that had led to her written warning had arisen in consequence of the Claimant’s disability.

The EAT set aside the ET’s decision finding no causal connection between the Claimant’s disability and her mistaken belief. It might have been the case that the Claimant’s belief that her condition would deteriorate was based on information given by a medically trained professional, however this said nothing about why she would mistakenly believe that certain parts of the warehouse were colder and damper than others. As a result, the ET was wrong to find that the Claimant’s mistaken belief that led to her refusal to accept the Respondent’s instruction could amount to “something” that arose in consequence of her disability.

Highlights

An employer discriminates against a disabled person if the employer treats the disabled person unfavourably because of something arising in consequence of the disabled person’s disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This case acts as a stark reminder that there must be an actual causal link between the “something” and the underlying disability. The disability does not need to be the immediate cause of the “something”; the “something” only needs to arise in consequence of the disability.  The consequences of a disability can include anything which is the effect, result or outcome of the disability. Therefore, the causal connection can arise from a series of links.  A broad approach should be adopted when determining whether the “something” that gives rise to unfavourable treatment arises as a consequence of a complainant’s disability.

The EAT has suggested that the test would be satisfied if it can objectively be shown that an error in judgement is something arising from a disability. Therefore, this claim might have been successful had there been a causal link between the holding of the false belief and the employee’s disability.

Guidance on the National Minimum Wage and on-call staff – Frudd v The Partington Group Ltd UKEAT/0240/18/OO

Background

The Claimants worked on a caravan site as a warden/receptionist. The caravan site was owned by the Respondent. The Claimants were provided with and expected to live in a caravan on site.

The year was divided into two seasons. The open season lasted from March to November, during which the caravan site was open 24 hours per day. On several days per week the Claimants were required to be on-call after their shifts finished until 8 a.m. the following day. Their shifts would finish between 4:30 p.m. and 8 p.m. During the open season, the Claimants were not paid from the end of their shift until 10 p.m. (“Evening Period”). The Claimants were paid a flat rate per emergency call-out between 10 p.m. and 7 a.m. (“Night Period). The Claimants were not entitled to any payment from 7 a.m. until the start of their shift at 8 a.m. (“Early Morning Period”).

The closed season lasted from December to February, during which the Claimants’ normal working hours were from 8 a.m. until 4:30 p.m. During the closed season, the Claimants were paid a flat rate per emergency call-out from 8 p.m. The First Claimant was required to undertake a security check of the park after 4:30 p.m. despite receiving no specific payment for this activity.

Employment Tribunal

The Claimants lodged a claim on the basis that they had not been paid the National Minimum Wage for the time they were on-call. The Claimants argued that the whole of the time they were on-call amounted to actual work and was “time work” for the purposes of the national minimum wage legislation.

In relation to the open season, the ET held that during the Night Period the Claimants were at home and were therefore only entitled to be paid the national minimum wage at times when they were actually working. However, the time worked during the Evening Period was “time work” for the purposes of the national minimum wage legislation. This was due to the responsibility and requirements placed upon the Claimants during this period. This included welcoming late arrivals, handing over keys, showing visitors around the site and carrying out evening checks. The Claimants were required to be on-call by being physically present on site. The ET found that this significantly restricted the Claimant’s leisure time in the evening as they were required to work rather than be on standby to work. The ET made no express findings about the Early Morning Period.

In relation to the closed season, the ET found that the Claimants did not do any “time work” on-call. The ET held that during this season, evening call outs were so rare that the Claimants would not have known the difference between an evening on-call and an evening off work.

Employment Appeal Tribunal

The appeal was allowed in relation to the Early Morning Period and the matter was remitted to the ET for reconsideration.

The EAT upheld the ET’s findings in relation to the Evening Period and Night Period during the open season. The EAT considered the wide range of responsibilities imposed on the Claimants during the Evening Period, concluding that the hours worked amounted to “time work”. Likewise, the EAT agreed that the hours worked during the Night Period did not amount to “time work” for the purposes of national minimum wage legislation.

The EAT also agreed with the ET’s assessment of the closed season and found that being called out whilst the site was closed would not amount to “time work”.

Highlights

This case addresses the different factors an ET will consider when trying to differentiate between time that should be considered “time work” for the purposes of national minimum wage legislation and time that falls outside the scope.

Teaching assistant dismissed over anti-LGBT Facebook post

H, a pastoral assistant at Gloucestershire academy was dismissed after posting an online petition on her personal Facebook account against compulsory sex education and LGBT teaching in primary schools.

Recent guidance on relationships and sex education published by the government makes it clear that secondary school pupils should be taught about LGBT relationships. However, the government has not yet issued any formal guidance for primary schools on LGBT teaching.

A disciplinary procedure against H began after an anonymous complaint was made against her for “posting homophobic and prejudiced views”. H’s posts were a response to the use of two books at her son’s Church of England primary school.

A disciplinary panel at Gloucestershire academy found H guilty of gross misconduct on the grounds that she had discriminated against its lesbian, gay and transgender pupils. The decision was based on the potential harm H’s actions could have on the academy’s reputation.

H is in the process of taking legal action against Gloucestershire academy for discrimination and unfair dismissal.


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