View this email in your browser

October 2019 newsletter

In this months edition...
We cannot avoid the subject of Brexit this month! With a no-deal Brexit still a possibility, explore the immediate and long-standing implications for organisations. Are you following the right process for your existing EU workers?

What's on the horizon
Recent cases

Are employers liable if they are unaware of a worker's disability?
Employee use of Social Media - Discrimination 
HR good practice

Brexit - implications of a No Deal
Abbreviations used in this issue:
ET - Employment Tribunal
EAT - Employment Appeal Tribunal
Updates to member's toolkit
New - Letter to employee requesting an anticipated return to work date
The following changes are due to come into force in April 2020.  As it's still a long way off, detail is still sketchy, but this is what is on the horizon so far:-
  • Increase in holiday reference period from 12 weeks to 52 weeks: the proposal is to increase the reference period used for determining a week's pay when calculating holiday pay for workers with irregular hours from 12 weeks to 52 weeks, which is seen to be a fairer time period to use
  • Extension of the right to a written statement of employment particulars to all workers:  Written statement will be a day one right for all workers. Employers will also have to provide additional information as mandatory content for a written statement
  • Parental bereavement leave rights take effect: Provides for at least two weeks' leave for employees following the loss of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy. Employees with 26 weeks' continuous service will be entitled to paid leave at the statutory rate and other employees will be entitled to unpaid leave
Are employers liable if they are unaware of a worker’s disability?

A recent EAT ruling highlights what should be considered when deciding whether an organisation has ‘constructive knowledge’ of an employee's disability.

Businesses frequently encounter difficulties in knowing when their employees are covered by the disability provisions in the Equality Act 2010. In some cases, it’s obvious. However, where the employee is suffering from a progressive or varied condition or just does not want to talk to the employer about their health, it can be difficult for them to know if the employee is disabled.

Employers can only be found to discriminate against an employee (or a potential employee) because of their disability where they know or ought reasonably to have known that the individual has a disability. This is known as ‘constructive knowledge’. The statutory code of practice that accompanies the Equality Act provides that “an employer must do all that they can reasonably be expected to do to find out if the individual has a disability”.

In the recent case of A Ltd v Z, the Employment Appeal Tribunal (EAT) overturned the tribunal’s finding that A had constructive knowledge of Z’s disability and gave a useful summary of the relevant principles to be taken into account when determining the question of knowledge.

Mrs Z had suffered from mental and psychiatric impairments for a number of years, including stress, depression, low mood and schizophrenia. She did not disclose these to A at the outset of her employment. When asked about her absence in her previous role she said this was because of injuries following a car accident and stated in her medical questionnaire that she did not have a disability or any mental or physical impairment.

During her employment with A, Z was absent on 85 days, of which 52 were recorded as sickness absence. The reasons given were physical ailments and not the mental health conditions that were in fact the real reason for her absence. Subsequently, Z was absent for a further period, during which she was signed off with low mood and admitted to A that she was feeling incredibly depressed (although she said the reason for this was difficulties with her son). However, she did not disclose that she had been hospitalised for more than two weeks. Following this absence Z was dismissed because of her attendance record.

She claimed disability discrimination and the employment tribunal found that A had constructive knowledge of the disability because of the fit notes and the hospital certificate citing a deterioration in her mental health. The employment tribunal considered that it was incumbent on A to make enquiries about her mental health. Its failure to do so prevented A from arguing that it could not reasonably have known that Z was disabled.
The EAT overturned the decision. The correct test was what A might reasonably have been expected to know not what it might reasonably have been expected to do. The fact that Z continued to suppress information about her mental health and admitted to the tribunal that she would have insisted she could work normally and would not have entertained an occupational health referral, meant that A could not have been expected to know that she was disabled. Put simply, even if asked, she would have continued to hide her condition from A.

While employers cannot avoid their obligations by simply ‘turning a blind eye’ and ignoring the evidence before them, it does give comfort that where an employee is concealing the reasons for their absence and the true nature of their health condition employers cannot reasonably be expected to know about any disability and the employee will lose the protection of the Equality Act.

Top Tips
  • If you suspect an employee may be hiding an illness, it is always better to tackle the issue head on and seek a Medical Report.
  • Finding a local Workplace Occupational Therapist you can work with on complex issues is considered best practice.
  • Introduce a return to work process for all employees who are absent for sickness, this shows a fair procedure for all. (Templates available in the Toolkit)
  • Keep records of all conversations, especially return to work interviews, medical questionnaires etc.

Back to top
Are Employers liable if employees commit acts of Discrimination

Employment Appeal Tribunal has held that organisations can potentially avoid liability for acts of discrimination committed by employees if it is clearly established that the act complained of took place outside of work.

Under section 109 of the Equality Act 2010, organisations are liable for acts of discrimination and harassment committed by employees ‘in the course of employment’ and it does not matter whether that act is done with the organisation’s knowledge or approval. In proceedings against organisations in respect of an alleged act by an employee, a potential defence is that the organisation took ‘all reasonable steps’ to prevent the employee from committing the act or doing anything of that description.

In this case, the claimant was shown by his colleague, BW, an image that had been posted on Facebook by another colleague, S. The image was a picture of a golliwog, which was accompanied by the caption, ‘let’s see how far he can travel before Facebook takes him off’. It had originated on S’s private Facebook page and had then been shared with a number of people, including BW, but not the claimant.

The claimant was appalled by the image and raised a formal grievance against S, complaining that racist images were being circulated in the workplace. The grievance was upheld and, following a disciplinary procedure, S was issued a final written warning. Following this, the claimant was rostered to work alongside S and raised concerns about this. He was then moved to another location without any explanation.

The claimant later brought claims of harassment, victimisation and discrimination on the grounds of race to the employment tribunal (ET). He claimed that the organisation was vicariously liable for the behaviour of S.

Employment Tribunal
The ET initially dismissed his claim. They ruled that whilst the sharing of the image was capable of giving rise to the offence on racial grounds, the post had been done on S’s private Facebook page and had therefore not taken place ‘during the course of her employment’, so the organisation could not be vicariously liable. This was because it had been shared amongst a private group.

The ET went on to explain that, regardless of this, the organisation had taken all reasonable steps to prevent the employee suffering discrimination. They had policies that made it clear this behaviour was unacceptable, had upheld the claimant’s grievance, subjected S to a disciplinary procedure and ultimately issued her a final written warning.

The claimant appealed the vicarious liability point to the Employment Appeal Tribunal (EAT), and also disputed that the organisation had taken reasonable steps to prevent discrimination.

Employment Appeal Tribunal
The EAT dismissed his appeal, agreeing with the reasoning of the ET.

They explained that whether an act is carried out ‘in the course of employment’ is a question of fact for tribunals to consider regarding all circumstances. Relevant factors would include whether the act was done at work or outside work and, if outside work, whether there was a sufficiently close connection with work. While such an approach is relatively straightforward when dealing with the physical environment of work, the EAT commented that it’s far less easy to apply when dealing with the virtual world.

Whilst there may be circumstances where the sharing of an image on a Facebook page could be found to be an act done in the course of employment, this will depend upon the specific facts of the individual case. When applied to this situation, the employee had posted the image on a private account and had not been at work when she had done so. Her friendship group was largely non-colleagues. She was not at work when the image was posted, the image had not made reference to the organisation or any of its employees, and S did not use any of the organisation’s equipment in sharing the image. Despite this, the organisation had treated the conduct of S seriously and given her a final written warning.

Note for employers
In determining if an act was done ‘in the course of employment’, tribunals will first determine the ‘act’, which in this case was the posting of the image by S. The circumstances were such that there was enough distance between the act and the employment to demonstrate it was not done in the course of employment, meaning that the organisation was not liable.

Despite this, the EAT did note that there may be many circumstances where the sharing of an image on social media could be found to be an act done in the course of employment, such as where a Facebook page is principally maintained for the purposes of communicating with work colleagues. Organisations therefore need to approach these situations carefully. The EAT also specified that this outcome may have been different if the person who had shown the image, BW, had been the one who was accused of the harassment.

Back to top
Brexit - implications of a No Deal

With a no-deal Brexit still a possibility, we explore the immediate and long-standing implications for organisations.

Impact on employment law
Overall, existing employment law will experience very little change straight away, and all current legislation will remain in place.

However, there may be an impact on UK staff employed by a UK organisation to work in the EU. In this situation, employees should be encouraged to check the specific laws of their country of work. 

Impact on existing EU workers
EU nationals currently employed to work in the UK will be able to continue to do so following Brexit day on 31 October 2019. The government's EU Settlement Scheme, which has been introduced to allow existing EU nationals residing in the UK to apply for the indefinite right to remain after Brexit, will remain in place.

EU nationals already in the UK by 31 October 2019 will still have until 31 December 2020 to apply for settled status. During this time, organisations will be able to continue employing any EU nationals that are already part of their workforce.

Remember that organisations must not exert any unnecessary pressure on individuals or expose them to any other form of detriment if they choose not to apply for settled status. As existing EU nationals will still be able to live and work in the UK freely until 31 December 2020, dismissing employees in the interim for being unwilling to apply for settled status will be potentially discriminatory.

Future EU workers
The freedom of movement afforded by the UK's involvement in the EU will come to an immediate end following 31 October 2019. In response, a new European Temporary Leave to Remain scheme is also to be introduced. This will essentially replace freedom of movement and allow EU nationals moving to the UK after Brexit, and up to the end of 2020, to obtain a temporary status lasting three years.

Following this, although the UK's future visa requirements for foreign nationals are yet to be set in stone, there is a suggestion that temporary work visas will be issued for seasonal work and a trial has been ongoing in recent months involving several agricultural organisations.

Going forward
The implications of a no-deal Brexit are likely to be wide reaching and it is currently unclear how other areas of employment law will be affected as a result. To this end, it is important that organisations keep up to date with all developments as Brexit progresses and make sure their staff are given all the information they require.

Top Tip
  • Visit the government website and check out what else you may need to do to be ready for Brexit.
Forward to Friend
This bulletin is for general information only.  It is not intended to constitute professional advice.  Though The Sevier Consultancy Group is confident of its accuracy, no duty of care is assumed to any recipient of the bulletin and no liability is accepted for any omission or inaccuracy.
Copyright © 2019 The Sevier Consultancy Group, All rights reserved.