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July 2019 newsletter

In this months edition...
Unconscious bias can influence decisions in recruitment, promotion and performance management. It could be discriminatory when the unconscious bias relates to a protected characteristic. 

What's on the horizon
Recent cases

Reasonable adjustments
Unfair dismissal due to illness
HR good practice

How to overcome unconscious bias
Abbreviations used in this issue:
EAT - Employment Appeal Tribunal;
ET - Employment Tribunal;
PIP - Performance Improvement Plan
Updates to member's toolkit
New - Manager guidelines Handling exit interviews
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
Explaining employers’ duties to make reasonable adjustments

In the recent case of 'L' v Commissioners for HMRC the EAT held that the Tribunal had taken an incorrect approach to the question of whether an employee with ulcerative colitis should be provided with a dedicated parking space as a reasonable adjustment.

The Claimant’s symptoms cause her to need to go to the toilet urgently and are affected by stress. The Claimant worked from HMRC and drove to and from work. An Occupational Health report identified that she would benefit from being provided with a dedicated parking space as she needed quick access to the toilet, particularly as her lengthy commute can cause issues with continence. She was provided with a dedicated parking space from 2012 – 2016. HMRC policy gives priority to those staff members requiring a parking space as a reasonable adjustment, but while the claimant had been given priority at other sites, she was not provided with a dedicated space when she moved to a different site, even though she had complained.

Alternatively, she could park in an unauthorised zone (but would have to move the car). This new arrangement caused the Claimant stress and this resulted in her being signed off sick. She subsequently brought a claim for disability discrimination against her employer for, among other things, failing to make reasonable adjustments.

The Tribunal held that HMRC had not been in breach of its duty. It found that the alternative arrangements made by HMRC constituted reasonable adjustments. It noted that HMRC had failed to abide by its own policy on parking space allocation but that the rights contained in it were discretionary and could not be depended upon.

EAT Decision
The EAT allowed the appeal and remitted the case for the same tribunal to consider the reasonable adjustment issue.

The EAT held:
The tribunal erred in the approach it took to HMRC’s parking policy. When assessing reasonableness, the employer ought to be able to provide a clear reason for departing from its own policy. The only explanation provided by HMRC was that the manager had acted in ignorance of it.
The EAT also decided that the tribunal had incorrectly diminished the policy's significance by referring to it as discretionary. A policy does not need to be contractual when determining the reasonableness of an adjustment. 
The tribunal further erred when assessing the reasonableness of the adjustment because it failed to focus on the particular disadvantage suffered by the Claimant. The EAT held that the stress caused to the Claimant was relevant in assessing the reasonableness of the steps taken by HMRC. 

Top Tips
In this case, the policy is a relevant issue. An adjustment that is recommended in the employer’s own policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make. If an employer wishes to depart from this policy then they must have good reasons for doing so.
  • When considering what adjustments to make, employers should consider:
  • An employer is unlikely to be able to show that it discharged its duty to make reasonable adjustments if it failed to follow its own policies – regardless of whether the policy is contractual or discretionary. 
  • Where there is no written policy, employers should consider whether there is a custom or practice of making certain adjustments and also consider those.
  • Where an employer departs from its policy or practice, it should be prepared to explain that adjustments were considered and if they were not made, give a persuasive reason why;
  •  A refusal to make adjustments should be set out in writing, as it will be important evidence. It should explain the employer’s thought process, that it considered the disadvantage faced by the employee, cite the medical, as well as other evidence that has been considered and state why the adjustment is not possible. 
  • Employers should focus on the particular disadvantage suffered by the employee when assessing the reasonableness of the steps it is required to take. This will involve reviewing medical evidence, speaking to the employee to try and understand the disadvantage experienced, inviting them to put forward options for adjustments and considering the relevant medical evidence. 
  • The employer should review matters comprehensively and not base its decision only on the most recent medical evidence. If necessary, obtain further medical evidence before making a decision.

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Unfairly dismissed after vision problems led to admin errors
An NHS administrator has been awarded £15,039 after her employer unfairly dismissed her for repeated administrative errors she made when she rapidly developed cataracts.

The Claimant worked at the trust from October 2012 until her employment ended in August 2016. For the majority of her employment, she worked in the paediatric audiology service, where she provided administrative support. Her role involved entering and extracting information, producing reports and providing service to parents and colleagues. 
In November 2015, the business support manager at Kent Community Health, was informed of a number of errors made by the Claimant, including sending a confidential report to the wrong patient, which represented an information governance breach.

Advice from HR that information governance breaches should normally be dealt with as misconduct through the disciplinary process, however the support manager wanted to manage the Claimant “supportively through the capability process”. she was invited to a formal capability meeting and a subsequent letter recorded areas of concern as “attention to detail and inaccuracy of information”.

In January 2016, the Claimant was informed she might have cataracts and told her employer about this.

A formal capability meeting took place on 27 January 2016, and a performance improvement plan (PIP) was agreed with weekly monitoring and a final review set for 4 April. The Claimant was warned that if she did not improve sufficiently, formal action could be taken, potentially including dismissal.

A number of supportive measures were put in place for her, and her diagnosis of cataracts was confirmed on 23 February. She informed her support manager the next day, saying she believed this was why she had been making errors. 

The support manager had a phone consultation with occupational health (OH) on 22 March. She said she was diagnosed with bilateral cataracts, where one eye was worse than the other, and was awaiting an ophthalmology appointment. OH confirmed the Claimant was temporarily visually impaired and needed “management’s discretion and support with adjustments as operationally feasible”. OH added that once treated with surgery, the Claimants recovery was expected to be quick.

The trust held a capability review meeting on 4 April, where she achieved the accuracy of work required. However, her output on a day-to-day basis was significantly lower than her colleagues. The claimant advised that she did not yet have a date for surgery, and a further PIP was set to include accuracy and level of output. 

The PIP record for 20 and 26 April noted a number of errors including booking a child into the wrong clinic and sending patients’ letters with the wrong venue for their appointments. The records showed she believed her eyesight had “deteriorated further due to the number of recent delays” and was chasing her surgery referral.

The final review meeting was on 3 May, resulting in a decision to move past the informal PIP to a formal meeting. In the meeting, the Claimant said “she was doing the best with her limited vision”. 

The next day, a further error came to light when a parent phoned the trust to say they had received another child’s letter in with their own. 

The Claimant signed off sick from 5 May and said this was because she “could no longer cope with the pressure at work”. She was invited to a formal capability review, which was held on 19 May. In the meeting, she said OH advice was “inadequate”. She also raised the fact that her stress levels were increasing, and suggested the capability process “could have been put on hold due to her cataracts”. 

The Claimant had an appointment with an ophthalmologist on 13 June, who said he would not have expected her to be able to do computer work. He also confirmed her poor vision had “almost certainly” contributed to her difficulties at work and implored the trust to take this into account. 

She had cataract surgery on her right eye on 21 June. The formal capability meeting resumed on 28 June, but the tribunal found that the panel was not aware of the ophthalmologist’s report or her surgery. 

The panel informed the Claimant by letter the next day it had decided some errors could be attributed to her cataracts, but concluded there was evidence of a prolonged period of management support, adjustments and OH guidance that did not address the errors and their negative impact on patients and the service. 

The decision was made to redeploy her to another role, but her new manager found her challenging and felt she was “full of animosity”. On 13 July, she raised a grievance that she was bullied and harassed by her line manager, and there were issues in relation to the management of the capability procedure. 

Her employment ended on 1 August, and she was informed on 30 November that her grievance was not upheld. 

The Tribunal accepted the principal reason for the Claimants dismissal was capability, due to the errors she made, but said the trust should have adjusted its focus to how the Claimants inability to perform fully while she was visually impaired could be accommodated, rather than to continue to insist upon what was, on the balance of probability, unrealistic improvement.”

The tribunal ruled the Claimant was unfairly dismissed and ordered the trust to pay her £15,039 as a basic and compensatory award. 

Top Tips
  • This case was a reminder that employers may have to adjust their standard procedures where an employee’s performance deteriorates because of illness. 
  • Obtain up to date medical evidence and use this information to determine what the employee can reasonably be expected to do during their illness.
  • This might mean setting lower targets or providing the employee with additional support.
  • Although you may follow a fair capability procedure, it may not be reasonable to persist in requiring improvement once an employees illness is known – at least not without medical confirmation they can achieve the improvement required.
  • Where there is likely to be a significant improvement in an employees health, as in this case as surgery would rectify the problem, postpone any capability reviews or PIP until they have recovered. Assuring you assess whether there is still a need to continue the capability process.
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How to overcome unconscious bias

How can HR professionals best minimise unconscious bias in the workplace?

Despite a raft of equality legislation, we still live in a world of prejudice in relation to ethnicity, gender, age and sexual orientation.

Unconscious biases are our unintentional people preferences, influenced by our backgrounds and experiences. They affect attitudes, perceptions and behaviours and inevitably impact on our everyday interactions. 

Unlike direct discrimination, where an individual is targeted specifically due to their protected characteristic, unconscious bias can occur when people within the process have views based on stereotypes or prejudice; for example, the view that a black man must be the aggressor, as arose in the recent employment tribunal case of Hastings v King’s College Hospital NHS Foundation Trust (KCHFT)

Here, Richard Hastings was awarded £1 million in compensation following an employment tribunal procedure which found KCHFT guilty of racial discrimination and unfair dismissal tainted by ‘unconscious bias’. 

Hastings had worked for KCHFT since 1996, until his dismissal in October 2015 on the grounds of gross misconduct following an incident on the premises with a contractor and a van driver. 

Despite an exemplary record, he was accused of assault after attempting to note down the van’s registration and defend himself following being racially abused and assaulted. 

The tribunal heard how Hastings called the security office for help. Although the call was confirmed as received, it was never logged. Nobody came to his aid. Instead, KCHFT’s disciplinary report consistently painted him as ‘the aggressor’ and the contractors as ‘victims’ despite CCTV evidence to the contrary.

An investigatory meeting described as an ‘interrogation’ and a failure to investigate Hastings’ grievance over the racial abuse contributed to the tribunal’s findings that the process was biased and discriminatory. Opportunities to collate more evidence supporting his claims of innocence were repeatedly missed. The entire investigation process was fundamentally flawed – skewed against him due to assumptions made at the outset, related to his race.

This report went unchallenged by those involved later on, who were heavily influenced by the investigation, even meeting the investigator outside the formal process. Highlighting a ‘catalogue of failings’ the tribunal crucially found these showed a difference in treatment between the white contractors and Hastings, a British man of Caribbean descent, whose evidence had been treated with unwarranted distrust and disbelief.

Conversely, the tribunal found that Hastings was an honest witness, identifying numerous inconsistencies and flaws in the opposing evidence. This serves to highlight the very different outcome of an impartial review of the evidence untainted by bias.

Tips for employers
This is a stark reminder to employers of the need for every stage of the process to be thorough and truly independent. Decision-makers must be genuinely empowered to reach their own decisions, aware of their level of responsibility and the need to be personally confident in the validity and completeness of evidence obtained and the investigation process. 

The opportunity to challenge the report, or halt and call for more evidence, should be explicit. HR advisers should be vigilant for signs of unconscious bias and alert to the risks associated with processes being undertaken by staff who may do so infrequently and outside their ‘day job’.

How to overcome unconscious bias
  • Be aware of unconscious bias.
  • Don't rush decisions rather take your time and consider issues properly.
  • Justify decisions by evidence and record the reasons for your decisions, for example during a recruitment exercise.
  • Try to work with a wider range of people and get to know them as individuals. This could include working with different teams or colleagues based in a different location.
  • Focus on the positive behaviour of people and not negative stereotypes.
  • Train HR staff, investigators and decision-makers on the risk of unconscious bias.
  • Be explicit about duties, obligations and powers – decision-makers must be confident in the veracity and completeness of the evidence. 
  • Give explicit permission in policies to require further evidence or re-investigation if necessary.
  • Reinforce at the time of appointing to the process.
  • Rely on historic training. 
  • Underestimate the risk of stereotypes or unconscious bias. 
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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.
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