NEWSLETTER EMPLOYMENT APPEAL TRIBUNAL UPHOLDS CLAIM OF DISCRIMINATION BASED ON PERCEIVED DISABILITY EMPLOYMENT. March 2018

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1 March 2018 NEWSLETTER EMPLOYMENT EMPLOYMENT APPEAL TRIBUNAL UPHOLDS CLAIM OF DISCRIMINATION BASED ON PERCEIVED DISABILITY The recent case of Chief Constable of Norfolk v Coffey is the first case to directly address the issue of perceived disability. Jesper Christensen (Partner) E jesperchristensen@bdb-law.co.uk T +44 (0) The Employment Appeal Tribunal (EAT) held that a police officer who was turned down for a transfer because her hearing loss was marginally below the required standard had suffered direct discrimination based on her perceived disability. It is generally accepted that the Equality Act 2010 covers claims where the claimant does not actually have a protected characteristic, but the alleged discriminator perceives them as having that characteristic. In 2011 Mrs Coffey applied to Wiltshire Constabulary to become a police constable. Medical tests revealed that she had mild hearing loss. National police recruitment medical standards stated that in borderline cases, consideration should be given to a practical hearing test to assess functional disability. Following this guidance, Wiltshire Constabulary arranged a practical functionality test, which she passed. This meant that Mrs Coffey was able to work as a police constable on front-line duty with no adjustments. Two years later Mrs Coffey applied for a transfer to Norfolk Constabulary. A preemployment hearing test recorded the same level of hearing loss as previously, but the Norfolk force refused to follow the recommendation of the medical adviser to arrange a practical functionality test. The Acting Chief Inspector (ACI) for Norfolk rejected Mrs Coffey s application on the basis that she did not meet the national police recruitment standards on hearing. In the context of significant cost and resourcing pressures, the ACI did not wish to appoint someone who might not be fully operational. Bircham Dyson Bell LLP Broadway London SW1H 0BL 51 Hills Road Cambridge CB2 1NT

2 2 March THE EAT S DECISION IS A REMINDER THAT MAKING STEREOTYPICAL AND INCORRECT ASSUMPTIONS MAY RESULT IN LIABILITY FOR DIRECT DISCRIMINATION... Mrs Coffey brought a claim alleging that the ACI perceived her as having a disability in the form of a progressive condition that could potentially have a substantial effect on her ability to carry out day-to-day activities, and that the rejection of her transfer request was direct disability discrimination based on this perceived disability. The Employment Tribunal upheld Mrs Coffey s claim. It found that the ACI perceived that Mrs Coffey s hearing loss could lead to the Norfolk Constabulary having to make adjustments to her role, now or in the future. The rejection of her application for this reason amounted to direct disability discrimination. The EAT dismissed Norfolk Constabulary s appeal. The ACI s reference to Mrs Coffey being restricted operationally could only mean that she perceived that Mrs Coffey had a progressive condition within the meaning of the Equality Act The Tribunal had also been entitled to conclude that the ACI s rejection of Mrs Coffey s application amounted to direct discrimination. A person with the same abilities as Mrs Coffey, whose condition the ACI did not perceive as likely to deteriorate so that they would require restricted duties, would not have been treated as Mrs Coffey was. It was clear in this case that Mrs Coffey s hearing loss met the legal test for a progressive condition under the Equality Act However, it will often be much more difficult to show that a decision maker perceived that a particular health condition satisfied the definition of a disability. Nevertheless the EAT s decision is a reminder that making stereotypical and incorrect assumptions may result in liability for direct discrimination on the basis of a perceived disability.

3 3March 2018 DETRIMENTAL TREATMENT OF WHISTLEBLOWER MUST BE DIRECTLY MOTIVATED BY THE PROTECTED DISCLOSURE The recent case of Malik v Cenkos Securities Plc has considered whether there may be liability in a chain of command case where a manager who takes detrimental action against a worker in ignorance of a protected disclosure has been influenced by another employee further down the chain of command who is motivated by the fact that the worker has made a disclosure. Caroline Yarrow (Partner) E carolineyarrow@bdb-law.co.uk T +44 (0) Under the Employment Rights Act 1996, workers have the right not to be subjected to any detriment on the grounds that they have made a protected disclosure (section 47B). Case law has established that the protected disclosure must have materially influenced the detrimental treatment of the whistleblower, so the person subjecting the whistleblower to a detriment must normally have had personal knowledge of the disclosure. During Dr Malik s employment with Cenkos Securities Plc, various issues arose concerning possible conflicts of interest which he had failed to declare. He also made a number of disclosures, some of which were later held by the Employment Tribunal to be protected. Cenkos Head of Compliance ordered an investigation into an alleged conflict of interest, as a result of which he suspended Dr Malik. Dr Malik alleged that this disciplinary action had been motivated by his protected disclosures, and that there was a conspiracy to get rid of him. He subsequently resigned and brought various claims in the Employment Tribunal, including a claim for detriment on whistleblowing grounds. The Employment Tribunal rejected all of Dr Malik s claims. His whistleblowing detriment claim failed because the Tribunal concluded that the protected disclosures played no part in the Head of Compliance s decision to take disciplinary action....in AN UNFAIR DISMISSAL CLAIM, IT MAY BE POSSIBLE TO ATTRIBUTE SOMEONE ELSE S MOTIVATION TO THE DISMISSING OFFICER... Dr Malik appealed to the Employment Appeal Tribunal (EAT), arguing that the Tribunal had failed to consider whether this was a chain of command case. He alleged that, even if the Head of Compliance had no personal knowledge of his protected disclosures, there was a conspiracy to get rid of him involving others who were motivated by the disclosures. The EAT rejected this argument, ruling that the same principles used to assess liability for discrimination claims also apply to whistleblowing

4 4 detriment claims. This means that a person who subjects a whistleblower to a detriment can only be liable if they have personal knowledge of the disclosure, and the thoughts and motives of others will not be attributed to them. In this case, the Head of Compliance was not motivated by the fact that Dr Malik had made protected disclosures and in any event his decision had not been influenced by anyone else. This decision confirms that in whistleblowing detriment and discrimination cases, Tribunals must determine only the personal knowledge and motivation of the decisionmaker. However, it is important to note that in an unfair dismissal claim, where liability always lies with the employer rather than with an individual, it may be possible in some circumstances to attribute someone else s motivation to the dismissing officer, for example, if facts have been manipulated by a manager with responsibility for a disciplinary investigation, or by a senior employee near the top of the employer s hierarchy. EMPLOYMENT APPEAL TRIBUNAL CONSIDERS TERRITORIAL SCOPE OF WHISTLEBLOWING LEGISLATION March 2018 In Bamieh v EULEX Kosovo and others, the Employment Appeal Tribunal (EAT) considered whether an employee of the Foreign and Commonwealth Office (FCO) could bring a whistleblowing detriment claim against two co-workers in relation to events which took place whilst all three were on secondment in Kosovo. Ian Wasserman (Associate) E ianwasserman@bdb-law.co.uk T +44 (0) Ms Bamieh and the co-workers concerned were seconded to EULEX Kosovo, a body set up by the EU Council to help Kosovo achieve self-government following the Balkans war. Staff on secondment to EULEX remained under the authority of the state which had sent them, but were required to carry out their duties under the local chain of command. Ms Bamieh was employed by the FCO under a series of annual fixed-term contracts governed by English law. In 2014 her contract was not renewed. She alleged that this was because she had made a number of protected disclosures concerning corruption amongst senior EULEX staff. Ms Bamieh brought claims in the Employment Tribunal against various respondents including the FCO, EULEX, the Head of EULEX and two other FCO employees who had worked with her in Kosovo, Ms Fearon and Mr Ratel. She alleged that Ms Fearon and Mr Ratel had personally subjected her to detriments and were therefore individually liable under the whistleblowing provisions of the Employment Rights Act Following a preliminary hearing, the Employment Tribunal held that it only had jurisdiction to hear the claim against the FCO. It ruled that EULEX had no domestic legal personality; the Tribunal had no territorial jurisdiction over the Head of EULEX, who was an Italian national; and Ms Bamieh s FCO co-workers were not domiciled or based in Great Britain so did not come within the scope of the Employment Rights Act Ms Bamieh appealed to the EAT. The EAT dismissed the appeal in relation to EULEX and its

5 5March THIS CASE CONFIRMS THAT THE LAWSON V SERCO TEST ALSO APPLIES TO INDIVIDUAL RESPONDENTS IN WHISTLEBLOWING CLAIMS WHO ARE BASED OVERSEAS... Head, but allowed the appeal in relation to the FCO employees. It ruled that the Tribunal had been wrong to treat the absence of a base in Great Britain as the conclusive factor and should have followed the principles set out in Lawson v Serco for determining whether an overseas worker can claim against their employer in an Employment Tribunal. The key question was whether the connection with Great Britain and British employment law was sufficiently strong. This involved considering all relevant facts and circumstances, including where the work was carried out; the choice of law in the worker s contract; how the employment relationship was managed from an operational and HR perspective; where the worker was paid and in what currency; and where the worker was recruited and based. The EAT concluded that, despite being based in Kosovo, each of Ms Bamieh s co-workers still had a sufficiently strong connection with Great Britain and British employment law for the claim to be brought in the Employment Tribunal. For example, they were working under contracts with the FCO which were governed by English law; they were paid by the FCO; any issues relating to discipline or dismissal were under the FCO s control, and they would have expected to benefit from protection under British employment law themselves. The EAT s decision in this case confirms that the Lawson v Serco test also applies to individual respondents in whistleblowing claims who are based overseas. This means that a Tribunal must consider all surrounding facts and circumstances in order to establish whether there is a sufficiently strong connection to Great Britain.

6 6 COMPENSATORY REST BREAK MUST BE A SINGLE CONTINUOUS PERIOD OF AT LEAST 20 MINUTES March 2018 In Crawford v Network Rail Infrastructure Ltd, the Employment Appeal Tribunal (EAT) considered whether allowing a rail worker to take a series of short breaks whilst remaining on call amounted to adequate compensatory rest. Nicholas Le Riche (Partner) E nicholasleriche@bdb-law.co.uk T +44 (0) THIS DECISION CONFIRMS THAT A COMPENSATORY REST BREAK MUST BE A CONTINUOUS PERIOD OF AT LEAST 20 MINUTES... Under the Working Time Regulations 1998 (WTR), most workers whose daily working time exceeds six hours are entitled to a rest break of at least 20 minutes away from their workstation (regulation 12). Some workers are excluded from this entitlement, including rail transport workers whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic (regulation 21). However, in such cases, workers must be allowed to take an equivalent period of compensatory rest. If this is not possible, employers must provide appropriate protection to safeguard workers health and safety. Mr Crawford worked as a relief cover signalman at various signal boxes where he typically worked eight hour shifts, usually alone. There were often only six trains per hour, but he was required to be at his post and on call at all times. This meant that he could not take a continuous rest break of 20 minutes. Instead he was allowed to take a series of short breaks, which in practice amounted to significantly more than 20 minutes per shift, although he had to remain on call during those breaks. Mr Crawford brought a claim in the Employment Tribunal alleging that this arrangement did not comply with the requirement for a 20 minute rest break or compensatory rest under the WTR. The Employment Tribunal rejected his claim, ruling that, as a rail worker, he was not entitled to a 20 minute break,

7 7March 2018 but that Network Rail s arrangement for providing equivalent compensatory rest was appropriate. Mr Crawford appealed to the EAT. Allowing his appeal, the EAT held that, in order to meet the WTR requirement for equivalence, both a rest break and compensatory rest must amount to an uninterrupted period of at least 20 minutes. The EAT rejected Network Rail s argument that aggregating shorter rest periods met the requirements of the WTR and that this was more beneficial from a health and safety perspective. The EAT also confirmed that although compensatory rest must be a break from work, Mr Crawford s claim could still succeed despite the requirement for him to remain on call throughout. This decision confirms that a compensatory rest break must be a continuous period of at least 20 minutes, leaving no room for employers to argue that a series of shorter breaks meets health and safety requirements. In addition, as the Court of Appeal ruled in the 2011 case of Hughes v Corps of Commissionaires Management Ltd, compensatory rest must have the characteristics of a break from work, but this does not necessarily mean that a worker cannot be on call during that break. COVERT SURVEILLANCE OF SUPERMARKET EMPLOYEES TO INVESTIGATE THEFTS BREACHED EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS In Lopez Ribalda and others v Spain, the European Court of Human Rights has ruled that the right to respect for private life under Article 8 of the European Convention on Human Rights was breached by a Spanish supermarket which installed hidden cameras to investigate suspected thefts by cashiers. Zoe Merrikin (Solicitor) E zoemerrikin@bdb-law.co.uk T +44 (0) Ms Lopez Ribalda and four other claimants worked as cashiers for MSA, a Spanish supermarket chain. Following the discovery of irregularities in stock levels over a five month period, with losses of up to 24,000 euros a month, MSA decided to investigate using surveillance cameras. Some cameras were visible and aimed at customers. Others were concealed at the tills in order to record possible employee thefts. MSA did not inform the staff committee or employees of the presence of the concealed cameras. Five employees were caught on video stealing items and were dismissed after admitting their involvement in the thefts. They subsequently brought claims of unfair dismissal in the Spanish courts alleging that the use of covert video surveillance had breached their Article 8 privacy rights....five EMPLOYEES WERE CAUGHT ON VIDEO STEALING ITEMS AND WERE DISMISSED AFTER ADMITTING THEIR INVOLVEMENT IN THE THEFTS...

8 8 March IN THE UK, COVERT MONITORING OF EMPLOYEES SHOULD ONLY BE UNDERTAKEN IN EXCEPTIONAL CIRCUMSTANCES... The Spanish Employment Tribunal and, on appeal, the High Court of Catalonia upheld the dismissals, ruling that the surveillance evidence had been lawfully obtained even though prior notice had not been given to the employees as required by Spanish data protection legislation. The surveillance had been justified since there had been a reasonable suspicion of theft. It was also appropriate to the legitimate aim pursued by MSA, necessary, and proportionate. The employees then took their claim to the European Court of Human Rights which held that the Spanish courts had failed to strike a fair balance between their right to respect for their private life and the employer s interest in protecting its property by investigating the potential thefts. The Court noted that covert video surveillance in the workplace is a considerable intrusion into private life, since employees are contractually obliged to report for work and therefore cannot avoid being filmed. It was also relevant that the surveillance covered all cashiers, without a time limit, and during all working hours, rather than being targeted at particular individuals. The Court ruled that the supermarket could have safeguarded the employees rights by other means, notably by informing them in advance of the surveillance and providing the information required by Spanish data protection legislation. Each employee was awarded 4000 euros in respect of nonpecuniary damage, plus costs and expenses. In the UK, the Information Commissioner s Office guidance states that covert monitoring of employees should only be undertaken in exceptional circumstances, and where openness would be likely to prejudice the prevention or detection of crime. This case might have been decided differently if the employer s covert surveillance had been more targeted and time-limited, and if it had also considered less intrusive methods.

9 9March 2018 SHORTAGE OF RESTRICTED CERTIFICATES OF SPONSORSHIP It will be far more difficult to obtain restricted Certificates of Sponsorship (CoS) after the monthly cap was reached in December 2017 and January Tim Hayes (Associate) E timhayes@bdb-law.co.uk T +44 (0) The annual cap of 20,700 restricted CoS is split into unequal monthly allocations, with the allocation year running from April to April. More restricted CoS are available at the start of the allocation year, with 2,200 being available in April, falling to 1,000 in February and March. A pointsbased test is used to assess applications, with PhD roles and occupations on the shortage occupation list being given priority. Remaining roles are assessed on the basis of salary level. The monthly cap has only been reached once before in 2015, so that employers applying for a restricted CoS have generally been successful if the eligibility criteria are met, even for roles offering only the minimum salary of 20,800. However, since the cap has been reached in December 2017 and January 2018, it is also likely to be reached in future months, given that the monthly allocation is reduced in February and March and unsuccessful applicants will re-apply. This also means that restricted CoS will only be granted for roles offering higher salaries. For example, in January 2018 only applications for roles with salaries of at least 50,000 were successful....a POINTS- BASED TEST IS USED TO ASSESS APPLICATIONS, WITH PHD ROLES AND OCCUPATIONS ON THE SHORTAGE OCCUPATION LIST BEING GIVEN PRIORITY...

10 10 AND FINALLY... March 2018 Brian Gegg (Partner) E briangegg@bdb-law.co.uk T +44 (0) As part of its modernisation programme, the Disclosure and Barring Service (DBS) has launched a new basic disclosure application route for individuals applying for jobs in England and Wales. Certificates should now be obtained directly from the DBS rather than from Disclosure Scotland which has previously provided them on behalf of the DBS. It is anticipated that this will result in faster turnaround times for certificates. Individuals who require a disclosure for a job in Scotland should continue to apply to Disclosure Scotland. The Fawcett Society, a charity campaigning for gender equality and women s rights, has published its nine-month review into sex discrimination law in the UK. This makes several recommendations for changes in employment law which could be implemented after Brexit. For example, the review proposes expanding the current gender pay gap reporting obligations to include reporting on the age, disability, ethnicity, sexuality and parttime status of workers; extending pregnancy and maternity discrimination protection to six months after maternity or parental leave; increasing the time limit for all pregnancy and maternity discrimination and harassment claims to six months; and making statutory maternity, paternity, and shared parental pay day one rights for all workers. The Government has not yet indicated whether it will respond substantively to these recommendations. The Office for National Statistics (ONS) has published an article analysing the factors affecting men and women s pay. This states that the gender pay gap has fallen from 10.5% in 2011 to 9.1% in 2017, but the gender pay gap for full time workers is entirely in favour of men for all occupations. The gap remains small at younger ages but from 40 onwards widens as women increase in age. The ONS suggests that only 36% of the gender pay gap can be explained by observing direct differences between men and women, including occupational differences, hours worked, or location. It also notes that further analysis would benefit from detailed information on family structures, education and career breaks. In April 2017 HMRC began rolling out the tax free childcare scheme, which helps working parents meet the cost of childcare with up to 2,000 of support per child per year, or 4,000 for disabled children. On 15 January 2018, the scheme opened to parents whose youngest child is under nine, and from 14 February 2018 to all families with children under 12. This means that the roll-out process is now complete. Official figures indicate that there has been a sharp decline in the number of apprenticeship starts since the introduction of the apprenticeship levy. There were 48,000 new apprenticeship starts between May 2017 and July 2017, a 59% drop on the same period in A recent

11 11...HELPS WORKING PARENTS MEET THE COST OF CHILDCARE WITH UP TO 2,000 OF SUPPORT PER CHILD PER YEAR, OR 4,000 FOR DISABLED CHILDREN... CIPD survey of over 1,000 employers has shown that only 17% of employers who pay the levy support the existing system, with 53% wanting it replaced by a training levy. Around 46% of employers who are paying the apprenticeship levy expect their organisation to simply rebadge existing training in order to claim back their allowance. The research also indicates that 22% of all employers still do not know whether they are liable to pay the levy, and 13% who know they will have to pay have not calculated what it will cost them. The CIPD report makes four key recommendations to Government: to reform the apprenticeship levy into a more flexible training levy; to run an awareness campaign to promote its benefits; to invest in HR support for small businesses; and to commission an urgent review of apprenticeship standards. The Ministry of Justice and HM Courts and Tribunals Service have launched a consultation on the future of the Court and Tribunal estate. Reform will be based on three core principles: ensuring access to justice; providing value for money for taxpayers; and ensuring long term efficiency. The consultation highlights the need to improve the design and quality of buildings and to address the reduced demand for parties to attend court due to the increasing use of digital services. As part of this process, five separate consultations have been issued on proposals to close eight courts nationally. All consultations will close on 29 March March 2018

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