What did we get up to last month?
We are pleased to confirm dates have been set for the next round of HR Breakfast Club seminars on Social Media in the Workplace and invitations will be emailed out very shortly. It promises to be interesting, informative and fun so keep your eyes peeled for further updates!!
In terms of other news I am sure you will be aware of the Supreme Court’s decision on 24 January 2017 that Parliament must vote on the decision to leave the EU before the Article 50 exit process can be triggered and negotiations can commence. As we write, Parliament has now voted in favour of triggering Article 50 and the debate moves to the House of Lords. The government have also since published the White Paper outlining their Brexit Plans.
On an altogether different note I have been surprised to read articles over recent weeks on a variety of forums in respect of unequal and discriminatory practices within workplaces. The UK implemented legislation, as far back as 1970, to address some of these types of issues and since this time laws have continued to evolve to such an extent that much of it is now enshrined within the Equality Act 2010. I therefore find it surprising to read in a recent article by People Management that women are still being asked potentially discriminatory questions at interview. Examples of these comments include “Are you planning on starting a family soon?” “It is important you don’t distract the men, because you’re a girl, so don’t go on the trading floor unless you have to.”
It is widely acknowledged that such comments are unacceptable in the workplace and could result in expensive uncapped claims of discrimination and irretrievable damage to a company’s reputation. It is also worth remembering that employers can be held vicariously liable for the actions of their employees during the course of their employment regardless of whether the acts were done with the employer’s knowledge or approval.
In order to minimise the risk of these types of complaints it is recommended that training is given to new recruits as to what is, and is not, acceptable within the workplace. Regular refresher training is also recommended for all staff, managers and directors. If this is something that you would like to consider offering to your staff then please do let us know as we would be delighted to help.
Any new cases to be aware of?
In the case Taylor v Ladbrokes Betting & Gaming Limited the EAT considered the issue of whether the Claimant, who suffered type 2 diabetes, was suffering a progressive condition which was likely to result in a substantial adverse impairment in his ability to carry out day to day activities. The Employment Tribunal had made a finding at a preliminary hearing, based on two medical reports by a Consultant Physician, that his condition did not amount to a disability under section 6 of the Equality Act 2010. They concluded, based on the medical evidence, that even if the Claimant was not using medication there was a small possibility his condition would progress to type 1 diabetes.
The Employment Appeal Tribunal concluded that the Claimant’s type 2 diabetes did constitute a disability. The issue of whether the Claimant was suffering from a progressive condition likely to result in a substantial adverse impairment on his ability to carry out day to day activities should be reconsidered.
In the case of Stratford v Auto Trail VR Limited the Employment Appeal Tribunal considered whether a dismissal was fair where an employer took into account an employee’s history of expired warnings. It considered that the employer was entitled to take into account the employee’s previous record, all 17 expired warnings, and future predictions by the manager. The EAT considered the principles determined by the Court of Appeal in another case (Diosynth Limited v Thomson) and concluded the Employment Tribunal could find the dismissal for misconduct fair, as it was a potentially fair reason under section 98 of the Employment Rights Act 1996, and the expired warnings (for misconduct) were relevant to whether the employer’s actions were reasonable in all the circumstances.
Some employers may be pleased with this decision but it does not give employers carte blanche to refer to all expired warnings when deciding whether to dismiss an employee. Whilst they can be taken into consideration in some circumstances, the fairness of the dismissal will be considered on a case by case basis. The nature of the warnings, the length of time since the expiration of the warnings and the number of expired warnings will all be relevant factors in determining whether it was fair for them to be relied upon.
Finally, it is also worth noting the decision of the Supreme Court in the case of FirstGroup Plc v Paulley. The decision is interesting and, whilst this is not an employment case, the principles relate to the issue of reasonable adjustments. In this case a disabled passenger in a wheelchair wanted to board a bus but was unable to do so as the wheelchair area was occupied by a mother and her child asleep in a pushchair. The bus driver asked the mother and sleeping child to move. She refused to do so and the driver took no further action. As such, the wheelchair user had to wait to board the next bus and arrived at his destination late. The Supreme Court held that simply asking the mother and sleeping child to move was insufficient to demonstrate reasonable adjustments had been taken. Whilst the driver was not required to insist the wheelchair space be vacated, he was required to do more than he had. The question of what is reasonable and how far an employee should go will be viewed differently from one person to another and will depend on the circumstances.
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