Disability · Uncategorized

The duty to make reasonable adjustments

discriminationThe BBC have been reporting that a Belfast women has won a £2,000 disability discrimination after event organisers, Eventsec Ltd, failed to make reasonable adjustments. The case itself, as reported by the BBC (I have not seen the judgement, strikes me as a helpful case with which to explain the duty).

The duty to make adjustments is a very powerful, and in my view under-utilised, right of employees in the workplace. Whether conducting sickness absence, performance, disciplinary, objective setting or a whole host of other meetings and workplace processes the duty to make reasonable adjustments can be a powerful tool to ensure employees are treated fairly.

The facts of the reported case can be summarised quite simply. Kayla Hanna was attending a Red Hot Chilli Peppers concert; Kayla has Type 1 diabetes. This meant that her body did not produce insulin, sometimes there can be a sudden drop in blood sugar (called a hypo) that can be life threatening. For that reason Kayla carried a bottle of Lucozade so if she needed to she could replenish her blood sugars and stay safe.

When she attended the gig she had a bottle of Lucozade to cover this eventuality but was told that there was a policy prohibiting event-goers from taking in bottles. Kayla explained that she needed the bottle because of her diabetes and showed evidence of her diabetes by showing her diabetes tattoo and insulin pack. Eventsec Ltd maintained that the rule applied to everyone and refused to allow Kayla to take the Lucozade with her. Thankfully, it appears that Kayla did not have a hypo attack but nonetheless was anxious for the duration of the concert.

The court found that Eventsec Ltd’s refusal to adapt the ‘strict policy’ was a breach of their duty to make reasonable adjustments and the court awarded £2,000 in compensation. It is, as most reasonable adjustment cases are, quite a simple factual situation. In the rest of this post I want to break the situation down showing the key requirements for when an employer is required legally required to make a reasonable adjustment.

Is there a Disability?

For the requirement to make reasonable adjustment to be engaged an individual must be a disabled person. For Kayla Hanna this was her Type One Diabetes. It practice a disability is manifested as a known medical condition but there is no necessary requirement that a condition be a medical one, and sometimes a medical condition (like diabetes) will not be deemed to be a disability.

The focus on establishing whether a person is not on whether or not a person has a certain condition (except for certain conditions where a person is automatically a disability such as certified visual impairment or cancer) but what effect the condition has on the person’s ability to complete normal day to day activities. Normal day to day activities is a wide ranging concept. This can be seen in the EU case of Ring which defined a disability as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” This could mean sometimes a disabled person cannot do something but it is more commonly the case that they can but it takes more time than it would for a non disabled person. The impairment must be long term to qualify, and long term means something that has lasted or is could well last for 12 months or more.

The fact is that under the Equality Act 2010 a very many people will be likely to be the disabled. For example, in my experience there are not many people on long term sick absence who do not have at least a reasonable argument that they are disabled but the biggest obstacle is people own reluctance to use the label as it is a term with a stigma.  However, adjustments like those found not to have been applied in Kayla are in the main exceedingly straightforward and cost nothing to apply but can make a huge difference to working lives. Whilst for a union rep raising disability is often a defence against management actions that is a sign that something has gone wrong – early identification can instead often avoid those situations arising in the first place.

Does the employer know there is a disability?

One of the difference in reasonable adjustment law in an employment field rather than a provision of services case (such as in Kayla Hanna’s case) is that the for the duty to make adjustment’s to be engaged the employer must know that the employee is disabled – that knowledge can come from being informed by the employee or by ‘constructive knowledge; in most non-employment cases the duty is anticipatory meaning they do not need knowledge of an individual’s disability. However, in Kayla’s case she informed the security officer of the disability, and showed evidence of this and her insulin pack and this would be likely to satisfy the requirement in any case. It is good practice for an employee to inform the employer in writing of the condition, and, as importantly, how this makes certain activities impossible or more difficult.

Is there an arrangement that places a disabled person at a disadvantage because of their disability?

The central plank of the duty to make reasonable adjustments is that the employer has a “provision, criterion or practice” that places the disabled worker at a substantial disadvantage compared to a non-disabled worker. That, at least, is the language used in the Equality Act 2010. In less grandiose terms however the requirement can be summarised as a neutral arrangement or practice of an employer that has harsher consequences on a disabled person, or more specifically, a specific disabled person.

In the  Eventsec Ltd case the company had a policy that was applied equally to all concert-goers: no-one was able to bring in any fizzy drinks or bottles. Legally speaking provision, criterion or practice are distinct, something can be a provision and not be a practice but practically speaking in most cases nothing turns on this. This was a policy that was neutral (it was not aimed at diabetics). However, when applied across the board as it was to Kayla, this had a more severe effect on Kayla as a diabetic than it would have otherwise. For a non-diabetic this may have meant mere inconvenience, or perhaps having to fork out for an overpriced replacement inside the concert venue. However, for  Kayla she was placed at risk of a hypo with no immediate source of raising blood sugar.

The importance of reasonable adjustment law is that a provision, criterion or practice can be found in innumerable circumstances. Alternatively, if there is a physical feature that places an employee at a disadvantage this will also engage the duty to make a reasonable adjustment;. A simple example of this would be a job applicant who uses a wheelchair who is invited to a job interview on the first floor but there is no lift available and just a flight of stairs which the applicant cannot ascend.

Is there an adjustment that might work?

The fourth aspect is the question of whether there is an adjustment that the employer could make that removes or mitigates the disadvantage caused by the provision, criterion or practice. For Kayla Hanna the disadvantage caused by the policy against drinks being brought into the concert could have been addressed either by dis-applying the policy in the case of disability or, as the court also suggested, bottles of Lucozade could have been given to disabled ticket holders.

A reasonable adjustment need to be guaranteed to succeed, all that is required is that there is something that could work. This means that the oft cited reason by workplace managers that an adjustment cannot be made as there is no guarantee of success is false.

Also, unlike most other types of discrimination law the law on reasonable adjustments recognises that sometimes an employer is required positively discriminate and treat disabled person more favourably. This was famously set out by the House of Lords in the case of a very important case of Archibald: “The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination.”

So, to give a common example, if an employer has a policy on convening disciplinary hearings after a certain number of sickness absences and an employee is more likely to be absent for disability related reasons then it will often be a reasonable adjustment to all an employee more days sickness absence before they start disciplinary proceedings than they would otherwise.

Is the adjustment reasonable? 

The last requirement is whether in all the circumstances of the case the adjustment is reasonable – this is a high hurdle to reach. Factors that are considered are cost, health and safety of staff, impact on operational effectiveness. However, it will be very rare where a person is at a substantial disadvantage for not adjustments to be possible. As was stated by the Employment Appeal Tribunal in Dyer v London Ambulance NHS Trust (2014) “It will be rare, though plainly possible, for there to be circumstances in which no reasonable adjustment can be made. Tribunals should think long and hard before concluding this.”

 

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Around the Unions

hedley

RMT

Yesterday, whilst attending a counter-protest to the Free Tommy Robinson brigade (apparently you can be convicted twice of contempt and even plead guilty and it is still a ‘fit up) RMT Assistant General Secretary Steve Hedley was, according to Hedley, assaulted by right wing thugs. Guardian story is here.

CWU 

Martin Henwood was a Swansea postman of 32 years standing when in May he was dismissed by the Post Office, this was because he allegedly failed too follow the correct protocol for unaddressed mail despite the fact he followed existing and established local procedures. His union colleagues in Swansea balloted for strike action and received an 89.9% yes vote. After multiple refusals to review the decision to dismiss and before a day of strike action had been taken Martin has been reinstated. CWU post is here.

PCS, FDA and Prospect

As part of the negotiating mechanism with recognised Trade Unions on civil service pay the Cabinet Office had committed to at least two consultation meetings. However, for Cabinet Office and Treasury ministers their word was not their bond and a pay framework was unilaterally released to all civil service departments. In a rare moment of concord PCS, FDA and Prospect have issued a joint statement on the “shambolic and contemptible” consultation process and called for the Pay guidance to be withdrawn.

PCS are pressing on with a ballot for industrial action on the civil service pay, it will be interesting to see where the other two unions end up given the intransigent position of the employers. The joint statement is here.

Bectu

A Croydon Employment Tribunal has ruled that 2 BECTU reps and former employees at the Picturehouse Cinemas Ltd were unfairly dismissed for alleged misconduct related to strike activities. Interestingly however the claim of automatic unfair dismissal was lost and it will be interesting to see if an appeal on that decision is pursued. BECTU post explaining the decision is here.

Empl · Employment Status · Uncategorized

Pimlico Plumbers Visit the Supreme Court

supreme courtIt is only less than two months since Don Lane, a worker for courier firm DPD, died after DPD fined him £150 for having the audacity of attending a necessary hospital appointment.  As a ‘self-employed’ worker workers like Lane have very few effectively no employment rights. For example, fining a worker for attending a disability related medical consultation is potentially disability discrimination but could such a person make such a claim?

A firm such as DPD would probably, as Pimlico Plumbers did in the case that started in the Supreme Court today, say no and the basis of the of that denial is section 83(2)(a) of the Equality Act 2010 which states that a person may make a claim for discrimination if they are in “employment under a contract of employment … or a contract personally to do work”. Since many alleged self-employed workers do have a right of substitution – the ability to ask someone else to do the work (a substitute) – they do not have a contract to personally to do work and therefore they are unable to bring a claim for discrimination. The facts underlying the Pimlico case are worth repeating and bare more than a passing  resemblance to the tragedy that faced Don Lane.

Mr Smith had worked for Pimlico for a few years as a plumber but had a heart attack. He wanted to reduce his hours of work but after making a request to do so which was refused Mr Smith was dismissed. He made a claim for unfair dismissal (which was struck out as he was not an employee), unpaid holiday pay as a worker (under EU law) and discrimination. The ET, EAT and Court of Appeal all found in favour of Mr Smith on the worker and s.83 points but it is this the Mr Charlie Mullin is challenging.

Whilst the judgement on worker status will be important it is the decision of standing to bring claims under the Equality Act that is most important and potentially far reaching.

The law on employment status in the UK is a farce with Parliament mandating that those with the most tenuous status having the least statutory rights to protect them from unscrupulous and domineering ’employers’ whilst employees  who tend to me more secure in employment having the most.

Mr Mullins is doing the media rounds on how the case is different from Uber and his position is common sense but the bottom line is his argument is that workers like Mr Smith who have a claim they have been discriminated against and have had their livelihood’s destroyed should  have no right to claim discrimination at all. That is not common sense, that is naked exploitation.

It is Parliament that have allowed this joke of employment rights (non)protection where the most vulnerable workers are given the lowest level of protection and right of redress to remain in place for so many years and, for all the noises, I do not see that the Taylor Reforms will make any real difference.

I hope that the Supreme Court has the sense to ensure that the attempt of Mullins, who will have every rogue employer in the country rooting for him, to remove most gig economy and self employed workers from the protection of UK anti-discrimination law fails.

Uncategorized

Don’t Assume, Read.

Letters, especially letters based on pre-written templates in an employer’s HR policies frequently look and read the same. So much so that there is sometimes a temptation to assume we know what is written in the letter without needing to read the whole thing. There is a danger though for trade union reps that that that assumption leads us to miss vital information.

Let me give an example. I have recently been assisting an employee who had previously been given a final written warning for misconduct. He was alleged to have committed further misconduct which was found proven and so because of that further misconduct whilst still on a warning he was dismissed for repeated misconduct, even though the misconduct was stated to be minor. It is common knowledge that where a employee is dismissed for repeated misconduct then, since there has been no fundamental breach of contract, the employee is still entitled to any contractual notice pay; in this case this amounted to over thirteen week’s wages. The manager however decided he did not want to give this and so dismissed the employee without any notice pay. After reading the ‘juicy’ bits of the letter a few times it was only when I read the ‘boring bits’ that I assumed were just a copy and paste job that this decision (I am not sure it was an ‘error’) was identified.

This is not an isolated occurrence. I fairly regularly (maybe 1 in 30 letters?) find reading ‘standard’ letters which have been drafted to ensure the employer complies with the law have been changed by a local manager that when pushed places the employer in legal difficulties and helps protect the employment of union members.  And yet, even knowing that, caseloads and the familiar look of letters still prove a temptation to me when seeing this letters gloss over the contents assuming they say what policy tells them to say. And so, this post is written simply as a useful tip to union reps when receiving letters make sure you read the whole thing from beginning to end – sometimes this can make a huge positive difference to a case.

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What is a month?

When an prospective claimant has received an Early Conciliation certificate from ACAS enabling them to proceed to lodging a claim time limit is extended by a minimum of one month. This provision is set out in section 207B of the Employment Rights Act 1996 which states.

But what is a “month” in respect to the limitation period for initiating the claim? Is it a the same date in the next month, a set period of 30 days or something else? The EAT in Tanveer v East London Bus & Coach Company Ltd has settled any doubt and found the correct interpretation is the corresponding date in the following month.

The actual details of the case are slightly more complex than the below suggests since it involved two separate Early Conciliation certificates and, in my view, also a potential negligence claim against the claimant’s solicitors.

However, for the purposes of the case the summary is a simple one. The claimant was dismissed on 20 March 2015 and within the relevant period contacted ACAS and the respondent agreed to early conciliation which in the event was unsuccessful. On 30 June 2015 an Early Conciliation certificate was issued and unfair dismissal proceedings were started on 31 July 2015 due to a mistake by the claimant’s solicitor. The question in this case was what day was day one in the case and what day did the month expire. For example, was day one the 30th June (the day it was issued) or 1 July (the next working day). The claimant argued for the latter but this was firmly rejected on the basis of the House of Lords’ decision in Dodds v Walker which applied a corresponding date principle.

What the case means is that if working out the deadline for a claim then one calendar month absolute latest date a claim must be issued is the corresponding date in the following month. Therefore, if a certificate were to be issued today (20 April) any unfair dismissal claim must be submitted by 20 May at the latest.

This case however highlights other good practice points for employee representatives and prospective claimants:

  1. Double check the work of solicitors on time limits, don’t just assume they are correct.
  2. Don’t leave claims the the last minute. In my own case whenever pursuing claim on behalf of union members I always aim to submit the claim 7 calendar days before an actual deadline to ensure any miscalculations do not affect a claim.

 

Cases referenced:

Tanveer v East London Bus & Coach Company Ltd [2016] UKEAT 0022_16_0802

Uncategorized

The BMA, 54000 Doctors, and NHS Whistleblowing

Writing in 2007 in the British Medical Journal Anthony Frais criticised the decision of whistleblowers such as Graham Pink to blow the whistle on insufficient staffing where this impacted patient safety in the following terms:

Pink ignored the option not to whistleblow despite the repercussions on his career. With the odds of success against him, his action was undoubtedly supererogatory and heroic. But it is ‘heroic’ whistleblowers such as Pink who undermine the practice of whistleblowing. Doctors or nurses who do hold compelling evidence of serious malpractice may have had their decision not to whistleblow influenced by the fate suffered by somewhat naïve or perhaps over zealous whistleblowers.

The argument seems to be that because bad things happened to Pink (he was dismissed) because he raised his concerns about patient safety due to understaffing other staff who see other, perhaps more serious safety risks, may not report these because they too may be subject to detriment. The argument is, with respect, complete nonsense however true the assumptions may be. The proper response to that dilemma is instilling all health staff with the confidence that if they raise concerns about patient safety risks in the public interest they should not fear retribution from the bureaucracies of the NHS for doing so.

The furore over Pink’s victimisation in the early 1990s was a key impetus in the attempt to instill just such a confidence which culminated with the enactment of the Public Interest Disclosure Act 1998.

These legal protections are not working, as the Francis report into whistleblowing shows even for those who are able to assert the legal right to challenge their treatment at an employment tribunal.

The case of Dr Chris Day, which I summarised a couple of days ago, is a grotesque demonstration of the current inadequacy of these legal protections in the NHS. Dr Day alleges (and the parties agree) that he blew the whistle about staff shortages that placed very ill patients at unnecessary risk (the parties in the case all agree this happened and complaints were made in good faith) but alleges Health Education England – an NHS body who control a Dr’s career – victimised him because of that disclosure by blocking his ability to progress in his career. However, an Employment Appeal Tribunal (Day v Lewisham and Greenwich NHS Trust & Anor [2016] UKEAT 0250_15_0903) has ruled that because Dr Day was not employed (as an employee or worker) for Health Education England he is not a ‘worker’ for the purposes of section 43K of the Employment Rights Act 1996 and, therefore, despite the very substantial control Health Education England have on his future career prospects he cannot bring any action against them for allegedly victimising him.

The effect of the judgement is a grave one: it has found that despite the very considerable power Health Education England (and potentially other similar bodies) have over Dr’s careers and future employment they can now victimise Dr’s with impunity because so long as the Dr is not a worker they have immunity from facing challenge in an employment tribunal. As I highlighted in my last post the significance of this case is not – with all respect to Dr Day – whether he was in fact victimised for whistleblowing but whether there is any meaningful redress for any junior doctor who feels they have been victimised in their career by a ‘third party’ health body given the effective immunity from challenge that is the result of the judgement.

Enter the BMA?

Given the significance for thousands of Dr’s one would think that the British Medical Association – the trade union for junior doctors – would be leading the charge on this issue. Dr Day’s case is, however, being brought without BMA support but instead the case has been funded by an impressive crowdfunding initiative. When I first read about the case I assumed that this was because Dr Day was not a member of the BMA, but this is evidently incorrect.

The 54000 Doctors campaign, which is admittedly only one side of the issue has confirmed that the BMA did support the case only to withdraw five days before the deadline for the case to be lodged and that they have declined to support the appeal to the EAT.

The reason for the lack of support is, to quote from Dr Day’s summary, because:

Gateley [the solicitors instructed by BMA] claimed that the merits of the case had suddenly dropped below the relevant 50% threshold required for BMA support.

The “50% threshold” will be familiar to many trade union reps, a case that does not have it will not ‘have a reasonable prospect of success’ and so is not supported, a judgement that is sometimes overly cautious meaning good cases are not supported by the union (many of them then succeeding at tribunal, only without (formal) union support). However, on the facts Dr Day’s case (in respect of the appeal) probably didn’t meet this threshold for the reasons identified in the EAT judgment.

Given the significance of the case for its members this is a difficult position to be in; without a formal appellate judgement there was doubt about whether junior doctors were protected, and where there is doubt there is room for a union to collectively secure concessions. Therefore, there is an argument that pursuing a case that is likely to set an unhelpful precedent for members, even while securing gains if won would be harmful to junior doctors generally. There is merit in that argument.

It is noteworthy though that that is not the reasons given and the only reason is that the 50% threshold is not met. I am of the view – and it is certainly an argument I have had with union executives – that where a case has a strategic importance in defending a large number of member’s terms and conditions or legal protections it is often appropriate for the union to bring that case, even if they think they will probably lose; to quote the late Bob Crow “if you fight you won’t always win, but if you don’t fight you will always lose.” If nothing else, members can at least see that someone is standing in their corner defending their rights at work.

Certainly, if I were a BMA member I would be asking the union’s executive for an explanation of why it has not supported a case that has such a big impact on so many of its members and why, now the horse has bolted so to speak and there is an appellate authority (the EAT judgment), it is not now pursuing the fight and supporting an appeal to the Court of Appeal. I would also be encouraging my fellow members to be asking that same question in correspondence, to local reps and through the union’s democratic processes.

But if the decision was made not to support a legal challenge and, as set out above, I can see there may be valid reasons for that decision what I would expect is that the BMA would be doing something very significant given the 54000 members or potential members who have been shafted by this issue; it is not as if this is not an issue around which broad public support could be garnered on public safety grounds, especially in tandem with the scandal of imposition of junior doctor contracts. Why, for example, is this not a trade dispute on which separate industrial action has been contemplated?

Of course, I do not move in BMA circles so it may be that more is being done than I have said but I have certainly seen no evidence of meaningful activity or mobilisation of members on the issue (if there is such activity ongoing comments to highlight this are very welcome).

As it is though it strikes me as very unfortunate that workers have felt compelled to campaign for their rights at work outside of their trade union. I do hope that changes soon whether that approach is legal, industrial or political (or all three!).

Uncategorized

Jeremy Hunt: Protecting NHS Whistleblowers, except Junior Doctors

Section 43A-L of the Employment Rights Act 1996 provides that if a worker is subjected to a detriment because of their whistleblowing they have a right to complain to an employment tribunal; it is an important right that – however inadequately – provides some assurance that a worker will not be penalised for raising concerns in the workplace.

The public policy reasons for such protection are nowhere better revealed than in the persons to whom we trust our health, namely the many healthcare workers in the NHS since any mistakes or safety issues could, literally, make the difference between your or my life of death. And yet, as the circumstances of the failures of care at Mid Staffordshire NHS Foundation Trust and subsequent reviews make clear, it is here that whistleblowing protections are in need of especial protection.

Which brings us to the disturbing case of Dr Chris Day. Dr Day reported safety failings in the hospital in which he worked, failings which Dr Day felt posed a real risk to the safety of hospital patients. As a Junior Doctor, a deanery Doctor, Dr Day’s career progression was dependent on training from Health Education England (HEE), an NHS body but not a body Dr Day was employed by. Shortly after Dr Day blew the whistle his training dried up and with it any prospect of becoming a Consultant. Dr Day believed HEE’s action were because of his whistleblowing and sought to bring an employment tribunal claim that he had been subjected to a detriment because of making a protected disclosure.

In preliminary hearing the tribunal ruled that since Dr day was not employed (either as a worker or employee) by HEE he could not bring a claim against them. As the campaign website 54000 Doctors points out, if accepted, then many junior doctors could be dissuaded from speaking out about patient safety because, if they were to do so, their careers could be destroyed by HEE and they would have no legal redress. Unfortunately, in a judgement earlier this month that is precisely what the Employment Appeal Tribunal found (Day v Lewisham and Greenwich NHS Trust & Anor). The definition of worker in the ERA 1996 excludes the relationship between Dr Day and HEE and appeals to a purposive approach to statutory interpretation failed.

Having read the case there are two comments I would make.

First, the case, which was disappointingly brought without BMA support, was always likely to be lost – valiant though the appeal to purposive approaches was there is no EU protection for whistleblowers so the analogy with the Equality Act was going to be tenuous.

Second, however “right” the decision may be from a statutory interpretation point of view it is plainly wrong from a public policy and political viewpoint. I hope the appeal can proceed (as it is only at the higher appellate levels there is any prospect of this injustice being righted) but the issue is as much political as legal. I have raised the matter with my MP and I would urge others to do the same with their MPs.

The fact is I do not know whether Dr Day was subjected to a detriment because of his whistleblowing by HEE. However, what I do fervently believe is that as a matter of public policy it cannot be right that a public body could subject a worker to a detriment and destroy a career and warn off thousands of other Doctors from speaking up in order to improve patient safety without any possibility of that Dr challenging that decision. That is not only a disservice to junior doctors but could also place patients at risk or serious harm.

Cases Referenced

Day v Lewisham and Greenwich NHS Trust & Anor [2016] UKEAT 0250_15_0903