Employment Update

Can disabled employees demand more sick pay?

The recent answer from the EAT is no. In O'Hanlon v HM Revenue & Customs, it held that it would be a "very rare case indeed" for an employer to be obliged, as a reasonable adjustment under disability discrimination legislation, to give more sick pay to a disabled employee than it would otherwise give to a non-disabled employee on sick leave.

The EAT commented that such an obligation would mean that tribunals would be entering into a form of "wage fixing for the disabled sick". It would also fall foul of the purpose of disability discrimination legislation, which is to assist the disabled to obtain employment and to integrate them into the workforce, rather than treat them as "objects of charity".

In this case, reducing the pay of the disabled employee because of her sickness absence did amount to disability-related discrimination, but it was justified. As it was found that adjusting sick pay rules was not a reasonable adjustment for the employer to make, it followed that the disability-related discrimination could be justified.

Public sector employers commonly do adjust their attendance management policies so as, in effect, to allow disabled employees an extended period on paid sick leave, on the basis that this is a “reasonable adjustment” required by section 4A of the Disability Discrimination Act 1995.  Following the O’Hanlon case, they may wish to review such policies – but should bear in mind also that  successful management of disabled employees requires a case by case approach to reasonable adjustments and to the justification of any less favourable treatment relating to disability.  That does not sit well with the traditional HR approach of developing organisation wide policies to ensure consistency of treatment between employees.  The solution has to be to develop policies and procedures that have sufficient flexibility to allow for cases to be dealt with on their own facts.  In doing so it is worth remembering that disability does not guarantee full pay in the event of sickness nor a job for life.

Consultation about reasonable adjustments

A recent EAT decision, in Tarbuck v Sainsbury's Supermarkets Ltd, has also noted that an employer does not have a separate and distinct duty to consult a disabled employee in relation to its duty to make reasonable adjustments. Whilst this may constitute good practice (and, arguably, forms part of a thorough assessment as to what adjustments may be reasonable), it was considered that the key question is whether, on an objective basis, the employer complies with its obligation to make reasonable adjustments in the circumstances.

A question of timing: TUPE and secondments

TUPE has always been a source of unwelcome surprises for employers and Celtec v Astley is no exception.  The case provides some clarification on the issue of when a transfer takes place but also sounds a warning bell to employers who second employees or transfer them to the transferee in stages.

In Celtec, a number of employees were initially employed by the Department of Education (DoE).  Part of the DoE’s vocational training responsibilities were subsequently transferred to Training and Enterprise Councils (TECs).  Employees were invited to volunteer for secondment to the TECs and a significant number did so.  Three years later, employees who volunteered for secondment were given the option of either taking up employment with the TEC or returning to the DoE.  A number of employees resigned from DoE and took up employment directly with the TEC (Celtec).

These employees were subsequently made redundant and an issue arose as to when their continuity of employment began: did it begin when they started at the DoE – or was it broken when they “resigned” and started new jobs with Celtec?  It was agreed by the parties that a TUPE transfer (or a number of such transfers, or possibly one transfer which was effectuated over an extended period) had taken place.  The question was, when? 

The case was referred to the European Court of Justice (ECJ). It confirmed that the “date of transfer” is a particular point in time which cannot be postponed to another date at the will of the transferor or transferee.  In other words (and unsurprisingly, given the plain words of TUPE), a TUPE transfer occurs when, as a matter of fact, the business in question changes hands.  Any agreements to the contrary are ineffective.

When the case returned to the House of Lords, the House of Lords applied the ECJ’s ruling and confirmed that the employees’ employment with Celtec was continuous with their previous employment with the DoE.  Even though the employees had agreed to their secondment, and had subsequently purported to resign and take up new employment with Celtec, their employment had in fact transferred under TUPE at the time of secondment, because that was when the business had changed hands. The later date on which the employees took up direct employment with Celtec would be disregarded, therefore preserving continuity from the date they joined the DoE.

The case serves as a sharp reminder of two characteristics of TUPE which are still surprisingly often overlooked by employers in both public and private sectors. First, a “TUPE transfer” is not triggered by the transfer of staff: the transfer of staff is a consequence of the transfer of an undertaking or business.  Secondly, it is not up to the parties to a contract or quasi-contractual arrangement to decide whether or when TUPE will apply: TUPE has statutory force and will apply when the conditions for its application are fulfilled, regardless of the parties’ intentions.

Celtec was decided under “old” TUPE but the lessons still apply under the new law.

Not just about stalking: the Protection from Harassment Act 1997 in the workplace

Harassing someone for a reason related to the victim’s sex, race, disability, religion or belief, sexual orientation or (from 1 October) age is prohibited in discrimination legislation and the association between discrimination and harassment is a common one.  But harassment in itself (in legal terms, intentional conduct or speech on at least two occasions, which the perpetrator ought reasonably to know amounted to harassment – or in colloquial language, bullying) can now also found a claim for harassment in the workplace under the Protection from Harassment Act 1997 (the Act) – and an employer can be vicariously liable for employees who harass their colleagues, just as they can where the harassment is based in illegal discrimination. 

The Act was intended mainly to protect individuals from stalking but a recent case, which reached the House of Lords, has confirmed that an employer can be vicariously liable for a claim brought under the Act. In Majrowski v Guy’s and St Thomas’s NHS Trust, the House of Lords confirmed, in principle, that an employer can be liable for an employee’s breach of a statutory duty. Neither the terms nor the effect of this Act indicated that Parliament intended to exclude the ordinary principle of vicarious liability and therefore vicarious liability does extend to an employee’s breach of a statutory duty committed in the course of employment.

The decision in Majrowski significantly increases employers’ vulnerability to claims. First, the complainant employee need not show that the conduct complained of was based on sex, race, disability, sexual orientation or age: simply that it fulfilled the legal definition of harassment and occurred in the course of the harasser’s employment.  Secondly, the “statutory defence” available in discrimination cases – that the employer had taken reasonable steps to prevent the harassment – will not apply.  And the limitation period within which the employee must bring the claim will be six years as opposed to the three or six month periods applying under discrimination legislation.

There are downsides for the potential claimant; the most significant probably being that claims under the act must be brought in the civil courts rather than the Employment Tribunal, putting the unsuccessful claimant at risk of paying the successful defendant’s costs.

Nevertheless, there can be little doubt that on balance this decision puts employers at risk of claims in a new area, and – given how many people say they have suffered workplace bullying – employers will need to revisit their policies and training programmes, and perhaps insurance terms, as a priority.

Time up for the UK

The ECJ handed down its judgment in Commission v United Kingdom yesterday, ruling that the UK is in breach of the Working Time Directive. By issuing DTI guidance which indicates that employers are not obliged to ensure that workers actually take their daily or weekly rest periods, the UK has failed to comply with its obligations under the Directive.

The Directive provides for workers' rights to minimum weekly and daily rest periods, which are contained in the Working Time Regulations 1998. Workers are entitled to a rest period of 11 hours in each 24 hour period and 24 hours in each 7 day period. If they work more than 6 hours a day, workers are also entitled to a break of 20 minutes. DTI guidance elaborates on employers' obligations in this area, stating that "employers must make sure that workers can take their rest, but are not required to make sure they do take their rest".

The requirements relating to rest periods were held to constitute rules of Community social law of particular importance, from which every worker must benefit in order to protect his health and safety. The ECJ did acknowledge that compliance with the Directive should not require employers to force workers to claim the rest period due to them. However, by indicating that employers are under no obligation to ensure that workers are able to exercise their rights to rest breaks, the DTI guidance was held to be liable to render the rights under the Directive meaningless and incompatible with its objective.

For more information or advice about employment law and human resources matters, please contact Richard Kenyon on 020 7861 4001.