NEWSLETTER REQUIRING A JOB APPLICANT WITH ASPERGER S SYNDROME TO SIT MULTIPLE CHOICE TEST WAS DISCRIMINATORY EMPLOYMENT. July 2017

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1 July 2017 NEWSLETTER EMPLOYMENT REQUIRING A JOB APPLICANT WITH ASPERGER S SYNDROME TO SIT MULTIPLE CHOICE TEST WAS DISCRIMINATORY In Government Legal Service (GLS) v Brookes, the EAT has considered whether refusing to make adjustments to a multiple choice situational judgment test for a job applicant with Asperger s syndrome amounted to disability discrimination. Jesper Christensen (Partner) E jesperchristensen@bdb-law.co.uk T +44 (0) Ms Brookes applied to join the GLS as a trainee lawyer. The first stage in the recruitment process was an online multiple choice situational judgment test. Ms Brookes Asperger s syndrome causes difficulties with imaginative reasoning in hypothetical scenarios. She therefore contacted GLS to ask whether an adjustment could be made to allow her to provide short narrative written answers instead of selecting from multiple choice answers. GLS informed her that an alternative test format was not available, but that allowances would be made in later tests if she passed the initial recruitment stages. Ms Brookes completed the test in its multiple choice format but her score was not high enough to proceed to the next stage. She subsequently brought claims of disability discrimination in the Employment Tribunal. After hearing medical evidence, the Tribunal found that the requirement for all applicants to pass the multiple choice test put people with Asperger s, including Ms Brookes, at a particular disadvantage compared to those who do not have Asperger s. The Tribunal found that on the balance of probabilities, Ms Brookes failure to pass the test was due to the format of the questioning. No alternative reason as to why she had failed the test had been put forward. The Tribunal also rejected GLS arguments that the test was a proportionate means of achieving the legitimate aim of recruiting the best candidates by testing their ability to make effective decisions. The Employment Tribunal concluded that that GLS had indirectly discriminated against Ms Brookes, had failed to comply with the duty to make reasonable adjustments and Bircham Dyson Bell LLP Broadway London SW1H 0BL 51 Hills Road Cambridge CB2 1NT

2 2 had treated her unfavourably because of something arising in consequence of her disability. On appeal, the EAT agreed with the Tribunal s reasoning. Although the test had a legitimate aim of testing a fundamental competency required of trainees, requiring answers in a multiple choice format was not a proportionate means of achieving that aim because a reasonable, less discriminatory assessment method was available. The competency of candidates with Asperger s could have been properly measured through short written answers. Although this would have created logistical problems for GLS because of the need for subjective assessment rather than computerised marking, this did not outweigh the obligations owed to Ms Brookes. This case is a reminder that employers should ensure that their recruitment procedures do not inadvertently discriminate against disabled candidates, and that any requests for adjustments must be carefully assessed. Where necessary, employers should consider whether the aims of a particular test can be achieved by less discriminatory means, for example, by allowing additional time, or providing an alternative test or method of responding. EMPLOYER S BELIEF THAT A DISCLOSURE WAS NOT PROTECTED IS IRRELEVANT July 2017 Where a worker makes a disclosure which qualifies for protection under the whistleblowing legislation and is dismissed principally by reason of that disclosure, the dismissal will be automatically unfair. Aisleen Pugh (Associate) E aisleenpugh@bdb-law.co.uk T +44 (0) In Beatt v Croydon Health Services NHS Trust, the Court of Appeal has considered whether an Employment Tribunal was right to conclude that an employee had been automatically unfairly dismissed where the employer did not believe that his disclosures were protected and had dismissed him for gross misconduct. The facts of this case date from 2011, when a disclosure had to be made in good faith in order to be protected. Since 25 June 2013, the employee must have a reasonable belief that their disclosure is made in the public interest. Dr Beatt was employed as a consultant cardiologist in Croydon University Hospital in a unit which was described as dysfunctional due to personal conflicts between consultants and complaints from nursing staff about the way they were treated. Following an incident in which a patient died during an operation, Dr Beatt raised a number of concerns about patient safety, staffing levels and procedural matters. However, following an investigation and disciplinary hearing, the Trust concluded that his allegations were unsubstantiated and unproven. The Trust also considered that some of his claims were vexatious and had been made due to personal differences with a colleague. Dr Beatt was dismissed for gross misconduct. He brought various claims in the Employment Tribunal, including a claim for automatic unfair dismissal on grounds of whistleblowing. The Employment Tribunal concluded that the Trust had failed to show that they had dismissed Dr Beatt for gross misconduct. It held that Dr Beatt had made protected

3 3July 2017 disclosures, reasonably and in good faith, and that this was the principal reason for his dismissal. His dismissal was therefore automatically unfair. On appeal to the EAT, the Trust did not dispute that Dr Beatt s concerns amounted to qualifying disclosures but challenged the Tribunal s conclusion as to the reason for dismissal, arguing that the Tribunal had failed to engage with the question of whether the Trust had believed that he was a whistleblower. The EAT agreed with the Trust that the Tribunal had embarked on its own assessment of the conduct charges, and had failed to identify why it did not believe the Trust s evidence that the reason for the dismissal was gross misconduct. Dr Beatt then appealed to the Court of Appeal, which restored the judgment of the Employment Tribunal. The Court of Appeal identified two key questions: is the making of the disclosure the reason, or principal reason, for the...some OF HIS CLAIMS WERE VEXATIOUS AND HAD BEEN MADE DUE TO PERSONAL DIFFERENCES WITH A COLLEAGUE... dismissal; and is the disclosure in question protected within the meaning of the Employment Rights Act 1996 (section 103A). It concluded that the Tribunal had correctly identified that Dr Beatt had made protected disclosures and that this was the principal reason for his dismissal. The Court of Appeal rejected the Trust s argument that if, as here, an employer did not believe an employee had made a protected disclosure, it could not be said that the employee was dismissed for making a protected disclosure. Ultimately it is up to a Tribunal to judge whether disclosures qualify for protection. The Court of Appeal noted that if liability could only arise where an employer believed the employee had made protected disclosures, this would significantly reduce the scope of the protection afforded to whistleblowers. It observed that in many cases, the employer will not have considered whether a disclosure is protected at all. Where an employee is seen as a difficult personality, as in this case, employers must ensure that they still make a proper assessment of whether the disclosures in question do have a reasonable basis and could qualify for protection. This is particularly important given that there is no upper limit on compensation which can be awarded in unfair dismissal cases under the whistleblowing legislation.

4 4 ADVOCATE-GENERAL GIVES OPINION ON JURISDICTION OF EMPLOYMENT CONTRACTS FOR AIRLINE CABIN CREW July 2017 Under EU Regulations, an employee may sue an employer either in the courts of the member state where the employer is domiciled, or in the courts of the place where the employee habitually carries out their work. Tim Hayes (Associate) E timhayes@bdb-law.co.uk T +44 (0) In Nogueira and others v Crewlink Ltd, the Advocate- General has given an Opinion which provides useful guidance on where workers who perform their work in multiple European countries will be considered to habitually carry out their work. Ms Nogueira and other claimants were all employed by Crewlink Ltd, an Irish company, and were assigned to work for Ryanair as cabin crew. Their contracts of employment were in English, stated to be governed by Irish law and contained a choice of forum clause giving jurisdiction to the Irish courts. The contracts also stated that the employees services were deemed to be performed in Ireland because they were carried out on aircraft registered in Ireland. However, their home base was designated as Charleroi airport near Brussels, and they were contractually obliged to live less than one hour away. They all started and ended their day at the airport, where they also received their instructions and reported sickness absence. When their employment ended, the employees brought claims in the Belgian courts for unpaid wages, overtime pay and severance pay. Their employer argued that the Belgian courts had no jurisdiction and that the Irish courts must determine the claims, whereas the employees contended that they had no link with Ireland since they had never lived or worked there. The ECJ was asked to determine how the place where the employee habitually carries out their work should be interpreted for mobile workers in the international air transport sector....their EMPLOYER ARGUED THAT THE BELGIAN COURTS HAD NO JURISDICTION AND THAT THE IRISH COURTS MUST DETERMINE THE CLAIMS... The Advocate-General has now given his Opinion that the place where an employee habitually carries out their work is the place where, or from which, the employee principally carries out their obligations for the employer. This should be decided by taking into account a number of relevant factors:

5 5July THE EMPLOYEES CONTENDED THAT THEY HAD NO LINK WITH IRELAND SINCE THEY HAD NEVER LIVED OR WORKED THERE... the place where the employee starts and ends their working day; where their work tools (in this case, the aircraft) are habitually based; where the employee is made aware of instructions communicated by the employer and organises their working day; where they are contractually required to live; where an office made available by the employer is situated; and where the employee attends if unfit for work or in the event of disciplinary problems. It will be for the Belgian courts to apply these factors and reach a final view. However, in the Advocate-General s opinion, the facts of this case unequivocally point to the Belgian courts having jurisdiction. He also stated that the nationality of the aircraft and whether the cabin crew were employed by Crewlink or Ryanair were not directly relevant to determining where they habitually carried out their work. Although this case relates specifically to the international air transport sector, the Opinion is in line with other case law on jurisdiction. The Opinion of an Advocate-General is not binding on the ECJ, but it is usually followed. Employers with employees who work in multiple member states should note that their choice of jurisdiction in the employment contract will not necessarily be the correct one when the factors listed above are taken into account.

6 6 EMPLOYMENT APPEAL TRIBUNAL REFUSES TO EXERCISE DISCRETION TO EXTEND TIME FOR APPEAL WHICH WAS LODGED ONE HOUR LATE July 2017 In J v K and another, the Employment Appeal Tribunal has refused to exercise its discretion to extend the 42 day time limit for lodging an appeal where the Notice of Appeal was filed one hour late. The appellant s claims of victimisation and discrimination had previously been struck out by the Employment Tribunal. He was seeking to appeal a 20,000 award for costs which had been made against him. Ian Wasserman (Associate) E ianwasserman@bdb-law.co.uk T +44 (0) The deadline for filing the Notice of Appeal at the Employment Appeal Tribunal (EAT) was 4pm on 30 September The appellant had started sending the Notice of Appeal and accompanying documents sometime before 4pm but the transmission was not completed until 5pm because of the size of the attachments. The EAT had to decide whether to accept the appeal given that it had been presented one hour late....discretion TO EXTEND TIME FOR PRESENTING APPEALS... WILL ONLY BE EXERCISED VERY RARELY... The EAT refused to exercise its discretion to extend the time limit. It rejected the appellant s arguments that his failure to submit his appeal on time had been due to depression and anxiety, caused by his HIV status, which had resulted in him being in a blind panic. He had failed to present appropriate medical evidence to support his argument that his disability had impacted on his decision-making. The EAT was also unimpressed with his assertion that he had been confused as to whether the deadline was 4pm or midnight, despite having read a Practice Direction which sets out clearly the applicable deadline. Although the EAT can consider the merits of an appeal in deciding whether to exercise its discretion to extend the time limit, in this case there was nothing to suggest that the Employment Tribunal making the original decision was wrong. The EAT also failed to be swayed by the appellant s claim that he could lose his home if the judgment was not successfully appealed. This case shows that although the EAT has discretion to extend time for presenting appeals, this will only be exercised very rarely. As the EAT website makes clear, the complete document must be lodged by 4pm. Leaving insufficient time to submit attachments to an appeal will not be a good reason for any delay beyond this deadline.

7 7July 2017 EMPLOYMENT APPEAL TRIBUNAL CONFIRMS THAT THREE MONTH GAP BREAKS SERIES OF DEDUCTIONS IN HOLIDAY PAY CLAIMS In Fulton and another v Bear Scotland Ltd (No 2), the Employment Appeal Tribunal (EAT) has recently confirmed that a gap of more than three months between nonpayment or underpayment of holiday pay breaks a series of deductions for the purposes of unlawful deductions from wages claims. Where claims for underpaid holiday pay are brought under the unlawful deductions from wages provisions, they must be submitted within three months of the last in a series of deductions (Section 23, Employment Rights Act 1996). This phrase is not defined in the legislation. Zoe Merrikin (Solicitor) E zoemerrikin@bdb-law.co.uk T +44 (0) In the earlier case of Fulton and another v Bear Scotland Ltd (No 1), the EAT had ruled that Bear Scotland had made unauthorised deductions from the claimants wages since it had excluded various overtime and other supplemental payments from the calculation of their holiday pay. The EAT also held that a gap of more than three months between deductions will break the series of deductions, since a period of more than three months is generally regarded as too long to wait before making a claim. This finding limited the scope for workers to make substantial retrospective claims for underpaid holiday. The case was remitted to the Employment Tribunal which held that the majority of the employees claims were out of time since the underpayments of holiday were interspersed with periods of at least three months during which no deductions occurred because no holiday was taken. The claimants then appealed to the EAT (Fulton and another v Bear Scotland Ltd (No 2)), arguing that the previous EAT decision in relation to the three month gap was not binding on the Employment Tribunal, because it had only created a strong, but rebuttable, presumption that the claim was time-barred rather than a universal rule. However, the EAT has now dismissed this appeal, ruling that the three month gap ruling was binding precedent. Subject to any appeal, this decision means that Employment Tribunals must now rule that a gap in a series of deductions of more than three months breaks the chain for holiday pay and any other claims for unlawful deductions from wages. Since most employees will have a period of three months or more when they do not take holiday and therefore do not receive any holiday pay, the potential liability of many employers in holiday pay claims has been significantly reduced. Claims are further restricted by the Deductions from Wages (Limitation) Regulations 2014 which introduced a two year backstop period for most unlawful deductions from wages claims brought on or after 1 July 2015.

8 8 AND FINALLY... July 2017 Nicholas Le Riche (Partner) E nicholasleriche@bdb-law.co.uk T +44 (0) CURRENT CRIMINAL RECORDS DISCLOSURE SCHEME HAS INSUFFICIENT SAFEGUARDS AND MUST BE AMENDED... In March 2017, an Employment Tribunal held that a bicycle courier engaged by Excel was a worker and therefore entitled to receive holiday pay. Prior to this ruling, Excel s business was sold to CitySprint, which continues to engage the courier, but still treats him as a self-employed contractor despite the outcome of the case. IWGB is now supporting the courier in a further Tribunal case alleging that, as a worker, he was covered by TUPE when Excel s business was sold to CitySprint and that CitySprint is therefore in breach of its obligations by failing to recognise his worker status. There is no case law on whether workers fall under the extended definition of employee in the TUPE Regulations, although it is clear that genuinely self-employed consultants working under a contract for services are not covered. IWGB describes this as a landmark case which could establish the first legal precedent on whether TUPE transfers cover workers as well as employees. On 1 May 2017, the Work and Pensions Committee published its report on self-employment and the gig economy. This report highlights the myth that flexible work is contingent on self-employment and criticises the exploitative behaviour of some employers. It also makes a number of recommendations, including having a default position that individuals are workers rather than being self-employed, with companies wishing to deviate from this model having to justify their case for doing so; introducing measures to encourage the self-employed to save for retirement; and equalising national insurance contributions made by employees and the self-employed. The Office for National Statistics has published data showing that the number of working days lost to sickness or injury in the UK in 2016 was million. This is equivalent to 4.3 days per worker, the lowest since records began in Minor illnesses, musculoskeletal problems and mental health issues were the most common reasons for absence. The highest rates of sick leave were in Wales (2.6%) and Scotland (2.5%), while London had the lowest rate of sick leave in the UK (1.4%). The groups that have seen the greatest reduction in sickness absence rates over the last 20 years are workers with long term health conditions, workers aged 50 to 64 and those in the public sector. The Information Commissioner s Office (ICO) has warned businesses that they should act now to ensure compliance with the EU General Data Protection Regulation (GDPR) which will come into force on 25 May The Government has already confirmed that Brexit will not affect the commencement of the GDPR. Various checklists and toolkits have been published on the ICO s website to help organisations assess their progress in preparing for the new requirements. The

9 9July THE NUMBER OF WORKING DAYS LOST TO SICKNESS OR INJURY IN THE UK IN 2016 WAS MILLION... THE LOWEST SINCE RECORDS BEGAN IN European Commission has announced that it will be working with member states and companies to ensure harmonisation in implementation, and it will also launch a campaign to raise awareness of data protection rights amongst EU citizens. The Court of Appeal has ruled that the current criminal records disclosure scheme has insufficient safeguards and must be amended. In four linked cases, each applicant had claimed that the disclosure of their past records significantly hampered their ability to obtain work, amounting to a violation of the right to respect for their private life under Article 8 of the European Convention on Human Rights. In one case, for example, the Court ruled that the disclosure of an ABH conviction 31 years after the event, which occurred when the claimant was 16, was not proportionate or necessary as it could not have any relevance to an assessment of the current risk he might pose to the public. The Court held that the criminal records disclosure scheme should be changed to include a mechanism to weigh up the nature of the offence, the lapse of time and the relevance of the information to the employment being sought. It will now be for Parliament to devise the details of a new scheme. The Work and Pensions Committee has published a report on how the UK is dealing with victims of modern slavery. It estimates that there are up to 13,000 victims in the UK. The report makes several key recommendations for improving the procedures for identifying and supporting victims. These include monitoring the re-trafficking of victims; giving victims at least one year s leave to remain in the UK with a personal plan for their recovery and the same recourse to benefits and services as asylum seekers; improving the prosecution rate for individuals guilty of modern slavery offences; and training front-line DWP staff to identify and report potential cases of slavery.

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