October 2019 bulletin

Welcome

Raj v Capita Business Services

Harassment has been in the legal news again this month. Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The connection between the protected characteristic and the conduct is key. The burden of proof – who must prove what – is important in discrimination cases too. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both these issues in Raj v Capita Business Services.

The employee was employed for less than a year and had performance issues before he was dismissed. He brought numerous claims against the employer. One claim was for sex harassment, alleging that his female manager had massaged his shoulders in an open plan office. The manager denied that the conduct had taken place, but other witnesses supported the employee’s version of events. They said the massages were accompanied by words of encouragement in relation to the employee’s performance.

An employment tribunal found that the massages were unwanted conduct which created an offensive environment for the employee. The tribunal accepted that the manager’s massage was misguided encouragement rather than anything to do with the employee’s sex. Even though in this case, the manager’s evidence about the massages was rejected, this did not automatically shift the burden of proof to the employer. The Employment Appeal Tribunal agreed. The burden of proof had not shifted because the facts did not show sex harassment. Even if the burden of disproving harassment had shifted to the employer, there was an explanation which did not relate to sex – misguided encouragement.

In this case, the employer seems to have dodged a bullet but learned a lesson. The tribunal referred to the massages as ‘an inappropriate way for a team leader to behave in an office’. Such behaviour in the office is almost certainly going to be inappropriate, even if is not discriminatory. Employers should ensure equal opportunities policies are clear on expected behaviour.

Working time

Paxur v Lexington Catering Services

Under section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employer for refusing to work in breach of the Working Time Regulations 1998 (WTR). If such a refusal is the reason (or main reason) for an employee’s dismissal, their dismissal will be automatically unfair. The case of Paxur v Lexington Catering Services examines how explicit that refusal needs to be.

The employee was a kitchen porter. He had previously been assigned to a client, Lexington, who did not allow him to take his 20-minute rest break. When asked to return to Lexington for work, the employee refused. He was threatened with the sack, and then sacked, for refusing to go. He brought a detriment claim and a claim for automatic unfair dismissal.

The employment tribunal said that the requirement to return to Lexington was a requirement to work in a way which breached the WTR (because of the refusal to allow a rest break). However, the tribunal said that the employee had not provided enough evidence to show that his refusal related to the WTR issue, rather than just a general dislike of the chef at Lexington. The EAT agreed that an explicit WTR-related refusal was required. However, in this case the tribunal had overlooked evidence that the refusal was related to the WTR issue. The EAT upheld the detriment claim and sent the unfair dismissal claim back to the same tribunal panel to decide whether the dismissal was related to the refusal to work without rest breaks.

This case highlights the importance of dealing with complaints about breaches of the law carefully. Employers should also ensure that all workers get adequate rest, wherever they work.

Injury to feelings

Komeng v Creative Support

If an employee wins a discrimination claim, the employment tribunal will award compensation for injury to feelings. There are three bands: top band for the most serious cases (currently £26,300 – £44,000); middle band for serious cases not worthy of a top band award (£8,800 – £26,300) and bottom (£900 – £8,800) for less serious cases including one off incidents. The award is based on the effect of the discrimination on the employee, rather than the gravity of the discrimination. The EAT highlighted this important distinction in Komeng v Creative Support.

The employee won his claim for race discrimination. His employer had treated him less favourably than colleagues in relation to training opportunities and weekend work. In assessing compensation, the tribunal said that the treatment must have caused the employee ‘significant upset and distress’. They awarded compensation at the top of the lower band, £8,400. That equated to two thirds of his net annual salary. The tribunal said that they would have awarded middle band compensation if the training course could have resulted in promotion and the employee had been disappointed about that loss of opportunity. However, this argument had not been raised.

The EAT upheld the award. The EAT said the employment tribunal’s job was to assess the impact of the discrimination on the individual employee. All employees are different, and discrimination will affect individuals differently. The EAT noted that the employee had displayed remarkable resilience in the face of the treatment. They said the bottom bracket is not just for one off acts.

This case seems to be a win for employers, with sustained discrimination falling into the bottom bracket for injury to feelings. However, the reason for this level of award was the employee’s resilience, rather than the employer’s actions. The impact on most employees would be greater, and so would the injury to feelings award. Stamping out discrimination is the best way to avoid any such dispute.

Gig economy

B v Yodel

Worker status is the holy grail in the gig economy, including the fields of taxi rides, food delivery and courier services. Workers are entitled to certain employment rights such as the national minimum wage and paid holiday, whereas the genuinely self-employed are not. Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who works under a contract of employment or another contract ‘where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual’. Case law has expanded on this definition and looked at issues such as mutuality of obligation, control, integration into the business and personal service.

Various questions have been referred to the Court of Justice of the European Union (ECJ) in the case of B v Yodel. The claimant was a courier who delivered parcels for Yodel. He used his own vehicle and mobile phone. His wore no uniform and carried no Yodel ID. He had a handheld Yodel device from which to receive information from Yodel and for Yodel to track his performance. He was not obliged to do any work and Yodel was not obliged to give him any. His contract said he could work for other companies. The contract also said he could send a substitute to do his work provided the substitute had the same level of skills and qualifications. B never sent a substitute to do the work but others on the same contract had done so. Does this defeat his claim to worker status? His contract says he is self-employed, but is he?

The ECJ is being asked to decide whether the ability to send a substitute will defeat worker status. The referral includes numerous other questions relating to this gritty issue in the hope of finding some clarity. We continue to watch this gig economy space.

Redundancy pay

Uradar v Lancashire Care NHS Foundation Trust

In a redundancy situation, an employee might be entitled to both statutory and contractual redundancy payments. Statutory redundancy payments are calculated using age, length of service and weekly pay (currently capped at £525). Contractual payments can be more generous. What happens when a contractual sum isn’t paid, and the employee brings a breach of contract claim to recover it? Does the statutory redundancy element form part of the £25,000 cap for a breach of contract claim in the employment tribunal?

In Uradar v Lancashire Care NHS Foundation Trust, the employee’s contractual redundancy pay was about £44,000, including the statutory element of around £6000. The employee was dismissed but the employer said he had refused suitable alternative employment so refused to pay the redundancy pay. The employee brought a tribunal claim and won. The tribunal said the statutory redundancy element was part of the breach of contract claim and awarded him £25,000 (the maximum allowed), rather than £25,000 plus £6000 for the statutory redundancy pay. The employee appealed.

The EAT agreed that the tribunal had got it wrong. The employee had two separate claims: one for statutory redundancy pay and one for breach of contract. He should have been awarded both sums.

This is a logical decision. More concerning to employers is the EAT’s criticism about the statutory cap of £25,000. As in this case, the cap often prevents full recovery of breach of contract sums in the employment tribunal. The EAT noted the potential injustice and said that the current cap had been in place since 1994. They queried whether it should be raised. Although higher value breach of contract claims can be brought in the civil courts, tribunals are attractive to employees because they are faster and there are no fees.

Vegetarianism and Philosophical belief

Conisbee v Crossley Farms

A philosophical belief might be a protected characteristic if it:

• Is genuinely held and isn’t just a viewpoint or an opinion;
• Relates to a weighty and substantial aspect of human life and behaviour;
• Attains a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society;
• Is compatible with human dignity and not conflict with other people’s fundamental rights.

An employment tribunal has decided that an individual’s belief in vegetarianism is not protected by the Equality Act 2010. In Conisbee v Crossley Farms, the tribunal said that vegetarianism was an opinion or viewpoint rather than a protected belief. The tribunal did not believe that vegetarianism was a weighty belief about a substantial aspect of human life and behaviour. Rather it was a lifestyle choice. A belief that animals shouldn’t be killed for food was an admirable sentiment but did not relate to a weighty and substantial aspect of human life and behaviour. In relation to requirement that the belief attain a certain level of cogency, cohesion and importance, the tribunal noted the many different reasons for people being vegetarian (lifestyle, health, diet, concerns about methods of animal rearing for food, personal taste). This could be contrasted with veganism where the arguments are largely the same, ‘a clear belief that killing and eating animals is contrary to a civilised society and also against climate control’.

An employment tribunal will decide this month whether ethical veganism is capable of being protected as a philosophical belief. The answer is almost certainly yes. However, looking at the reasoning of the employment tribunal in this case, the line between protectable belief and admirable opinion is somewhat blurred. I suspect we have not heard the last on this subject, especially if veganism is found to be protected. Employment tribunal decisions are not binding on other tribunals, so it is not uncommon for different tribunals to reach different decisions in similar cases.

Disability discrimination

Parnaby v Leicester City Council

A person is disabled if she has a physical or mental impairment which has a substantial and long-term adverse effect on her ability to do day to day activities. To be ‘long-term’ an impairment must have lasted, or be likely to last, at least 12 months. An impairment can be treated as continuing when it has stopped if it is likely to recur. Likely means it is more probable than not.

In Parnaby v Leicester City Council, the employee was a head caretaker. He was dismissed for long term sickness absence due to work related stress. The employee brought several discrimination claims. The tribunal’s first job was to decide if he was disabled. They found that his condition did not meet the ‘long-term’ requirement. His work-related stress had not lasted 12 months by the time his employment ended, and he hadn’t seen his GP since then. His recovery coincided with his employment ending. Therefore, it wasn’t long term.

The EAT said the tribunal had applied the test incorrectly. The tribunal had looked back at the employee’s position with the benefit of hindsight, noting his illness had stopped at the point of dismissal. This was the wrong approach. They should have considered what the position had been at the time when the decisions were taken by the employer, before the employee’s dismissal. At that point, was the employee’s impairment was likely to last 12 months or recur? The employee’s dismissal had to be disregarded when applying this test because it was his dismissal and the matters leading up to it which the employee said were discriminatory. The case was sent back for a new tribunal panel to decide whether his impairment was long term.

This case shows how complex the disability test can be, tripping up even experienced judges. Just because someone’s impairment hasn’t lasted 12 months yet does not mean they do not meet the disability test. Take care when contemplating dismissal for sickness absence relating to work related stress and ensure you have done everything you can to address the issue first.

And finally…

Is your workplace culture contributing to the ‘psychological harm’ of your employees? It sounds dramatic but a survey of 4000 employees commissioned by Business in the Community (BITC) and Mercer Marsh Benefits suggests that employers aren’t doing enough to address the effect of work on employees’ mental health.

Getting top billing for their negative effect on mental health are excessive targets, having to work overtime due to workload, and feeling unsupported. Managers talked about barriers to providing mental health support with more than half of managers putting business needs above employee wellbeing. Almost half of managers weren’t assessed on how they managed employee wellbeing.

The message coming from BITC is that employers aren’t making the changes necessary to improve employees’ mental health. Mental health awareness has risen dramatically and a cultural shift is required to keep up. The report says three key areas to address are creating good work which enhances mental health, acknowledging and supporting poor mental health and publicly reporting on staff wellbeing performance.

This kind of cultural change needs more than new policies to specifically address the issue. Managers need to recognise and reward empathy and compassion. They in turn should be judged on their employees’ wellbeing and the promotion of good mental health. Most influence comes from the top. Business leaders need to consistently practice what they preach and role model behaviour which promotes good mental health. They need to walk the walk as well as talk the talk.