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Case law round-up – January 2016

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29/01/2016

Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265Court of Appeal holds that the duty to make reasonable adjustments can apply to absence management procedures

The Court of Appeal has resolved the confusion surrounding reasonable adjustments and absence management procedures by confirming that ‘trigger points’ and warnings under attendance procedures are subject to the duty under the Equality Act 2010 to make reasonable adjustments in the case of disabled employees.

The facts

Ms Griffiths worked for the Department for Work and Pensions (DWP). Several periods of absence (including disability-related absence) meant that she ‘triggered’ a written warning under the DWP’s attendance policy. She lodged a grievance about the warning and asked for two reasonable adjustments to be made as follows:

  • That her disability-related absence be disregarded for the purposes of the attendance policy and the warning she had been issued with be withdrawn.
  • That the trigger points at which warnings would usually be issued under the policy be extended in her case for any future absence.

DWP rejected her grievance and she brought a claim in the employment tribunal arguing that it had failed to make reasonable adjustments under the Equality Act 2010.

The employment tribunal dismissed Ms Griffiths’ claim. It found that Ms Griffiths had not been put to a substantial disadvantage compared to non-disabled employees since the attendance management policy was applied to all employees equally. It also found that, in any event, the adjustments sought by Ms Griffiths were not reasonable in the circumstances. Ms Griffiths appealed to the Employment Appeal Tribunal (EAT) which upheld the Tribunal’s decision.

The Court of Appeal overturned the EAT’s decision that the duty to make reasonable adjustments had not arisen. It held that the fact that the attendance policy applied equally to both disabled and non-disabled employees did not eliminate the disadvantage to disabled employees if the policy has an adverse effect on a disabled employee. This seems to be a logical approach given that a non-disabled employee is less likely to have the same level of absence as a disabled employee and therefore the disabled employee is at a disadvantage in comparison. The Court did, however, uphold the EAT’s finding that the specific adjustments sought by Ms Griffiths were not steps which DWP could reasonably be expected to take.

What does this mean for employers?

This is a helpful decision for employers as it clears up previous confusion and confirms that employers have a duty to consider making reasonable adjustments where disability related absences cause a disabled employee to trigger an attendance procedure.

However, the fact that employers have to consider making adjustments does not mean that the employee is automatically entitled to any adjustment they might seek. The question will be whether it is reasonable in the circumstances for the employer to make the particular adjustment. This will require careful analysis in each case and if the adjustments sought are not ‘reasonable’ (as the Court of Appeal found in Ms Griffiths’ case) then the employer will not be in breach of its duties.

Ms Griffiths’ claim was narrowly pleaded because it only concerned the duty to make reasonable adjustments.  She could have also presented her claim under the ‘indirect disability’ and ‘discrimination arising from disability’ provisions of the Equality Act. These alternative provisions would have given her another angle from which to argue her case as they involve different legal tests. Most well-advised claimants in Ms Griffiths’ position are likely to bring their claim under all three of these ‘heads’ rather than limit their claim to one of reasonable adjustments only.

The bottom line is that this case does not change the existing advice that employers should continue to consider whether reasonable adjustments sought by the employee or recommended by Occupational Health advisers are reasonable in the particular circumstances of the case. Employers may choose to make adjustments that go further than might be considered reasonable by a Tribunal or they may choose to make adjustments only to the extent required by law. The key message is that careful thought should always be given to these decisions based on the unique facts of the case.

Greenfield v the Care Bureau (C-219/14)

The Court of Justice of the European Union has clarified the position regarding recalculating holiday entitlement for workers who change their hours part way through a holiday year.

The facts

Ms Greenfield was employed by Care Bureau. Her holiday year ran from the middle of June and she took 7 days of paid holiday in July 2012. During the 12-week period immediately before that holiday, her work pattern was one day per week. However, from August 2012, Ms Greenfield significantly increased her hours and began working a pattern of 12 days on and 2 days off.

In November 2012 Ms Greenfield requested a week of paid holiday. Care Bureau informed her that she had exhausted her 5.6 week’s holiday entitlement (i.e. her entitlement to paid holiday under the Working Time Regulations 1998) in July when she took 7 days off. It argued that because Ms Greenfield had taken her July holiday at a time when her work pattern was one day per week, she had taken the equivalent of 7 weeks of paid holiday and had therefore used up all her entitlement.

She left her employment later that year and brought a claim in the Employment Tribunal for unpaid but accrued holiday pay. She argued that her holiday entitlement for the whole year should have been retrospectively recalculated and adjusted following her increase in hours in August. She argued that this recalculation should have happened so that her holiday entitlement was proportional to her new working hours and not the hours worked at the time she took her holiday in July. The Employment Tribunal referred the question to the Court of Justice of the European Union (CJEU).

The CJEU’s decision related to the 4 week minimum holiday entitlement under the Working Time Directive (often referred to as ‘Euroleave’).  It held that EU law requires that employers recalculate and increase the holiday entitlement which accrues from the point in time when an employee’s hours increase.  In other words, if a worker changes their hours part way through a holiday year, the employer should increase their holiday entitlement going forward from that point. It does not have to increase the holidays they have already accrued to date.

What this means for employers

This decision reflects the approach that most reasonable employers would probably take in any event. Nevertheless, it is useful confirmation. A previous European case called ‘Land Tirol’ had dealt with the situation where a worker decreases their hours part way through a holiday year and had held that the employer is not entitled to reduce the holiday pay which the worker had already accrued (again, not a particularly surprising decision).

Note that whilst the decision only applies to the 4 weeks ‘Euroleave’, it would be advisable to apply it to the full 5.6 weeks entitlement under the Working Time Regulations 1998.

MBNA Limited v Jones UKEAT/0120/15 – fairness of a dismissal where an employee involved in the same disciplinary incident is given a lesser sanction

Can an employer issue different disciplinary sanctions to different employees for acts of gross misconduct occurring during a work social event? The Employment Appeal Tribunal (EAT) considered this question and provided some useful guidance.

Facts

Mr Jones and Mr Battersby were employees of MBNA Bank. On 8 November 2013 MBNA held a corporate event at Chester Racecourse. Staff were reminded that normal standards of behaviour and conduct would apply whilst at the event. Mr Jones attended the event with his colleague Mr Battersby and Mr Battersby’s sister. At some point during the event, Mr Jones put his arm around Mr Battersby’s sister, which led Mr Battersby to knee Mr Jones in his leg. Mr Jones then allegedly licked Mr Battersby’s face. Colleagues who witnessed these events viewed it as a bit of ‘banter’. However, things later deteriorated when Mr Battersby kneed Mr Jones in the leg once more and Mr Jones retaliated by punching Mr Battersby in the face.

Mr Jones then left the event and went to a nightclub. Mr Battersby followed him and waited outside the club whilst texting Mr Jones and threatening him with violence when he came out. In actual fact, he never carried through his threats and there was no further incident between the two men. The texts were received by Mr Jones the following morning.

MBNA began disciplinary proceedings against both men and these were conducted by the same manager. He found that Mr Jones had punched Mr Battersby at the work event and that his behaviour had the potential to cause serious reputational damage to MBNA. His decision was that Mr Jones should be dismissed for gross misconduct.

The texts sent by Mr Battersby were found to be “of an extremely violent nature and wholly inappropriate” although the manager recognised that they were an immediate response to being punched in the face. He decided that whilst the conduct amounted to gross misconduct (for which he could have chosen to dismiss), the appropriate sanction for Mr Battersby was a final written warning. Mr Jones brought an unfair dismissal claim.

The employment tribunal upheld Mr Jones’ unfair dismissal claim. It found that both men had been found guilty of gross misconduct and therefore it was unreasonable to have inconsistent sanctions. MBNA appealed to the EAT.

The EAT allowed MBNA’s appeal. It held that the Employment Tribunal had lost sight of the relevant test in unfair dismissal cases which is whether or not it was reasonable for the employer to dismiss an employee for their conduct. The disciplinary sanction that the employer may or may not have issued to another employee will very rarely be relevant to this question. The only time that it may be relevant is where the conduct of the two employees is identical or so similar as to amount to parallel circumstances. The EAT held that, on the facts of this case, it was reasonable for MBNA to dismiss Mr Jones for punching a colleague in the face at a work event. Mr Battersby’s conduct in sending the texts after the work event, whilst totally unacceptable, was not ‘parallel’ and therefore was not relevant to the fairness of Mr Jones’s dismissal.

What does this mean for employers?

This case confirms that employers can treat each disciplinary case on its own individual facts even where there may be a number of employees being disciplined for the same or similar incidents. As long as it is reasonable to dismiss the employee for what they themselves have done then the sanctions meted out to other employees are unlikely to be relevant except where the circumstances between them are identical or parallel. For example, if Mr Battersby had punched Mr Jones back immediately then MBNA may have had more trouble arguing that the sanction applied to Mr Battersby was not relevant. This is helpful to know given that employees and their representatives will often refer to other employees’ misconduct as a method of defending their own case.

It is worth noting that unjustifiable inconsistency of disciplinary sanctions in a discrimination claim could be viewed as difference in treatment and could give rise to a direct discrimination claim. It is therefore important to try to be as consistent as possible across the organisation when issuing disciplinary sanctions.

Finally, MBNA were helped in this case by the fact that they had warned staff prior to the event that normal standards of conduct and behaviour applied. It is always a good idea to expressly remind staff of this prior to any work-related social event. This applies equally to other ‘out of workplace’ events such as corporate volunteering days and sponsored team fundraising events.

Barbulescu v Romania ECHR 61496/08 – monitoring employees’ use of the internet at work

The European Court of Human Rights (ECHR) has considered whether the right under Article 8 of the European Convention on Human Rights (the Convention) to respect for private life and correspondence is breached if employers monitor employees’ personal communications at work. It held the right was not breached subject to the monitoring being reasonable and proportionate.

Facts

Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancée and his brother, including messages about his health and sex life. His employer had a blanket ban on personal internet use so this was in breach of his employment contract and he was dismissed. Mr Barbulescu took his case to the ECHR and argued that the Romanian court should have excluded all evidence of his personal communications on the grounds it infringed his Article 8 Convention rights to privacy.

The European Court of Human Rights held that whilst Article 8 (right to respect for private life and correspondence) was engaged, the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The ECHR was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The ECHR acknowledged the need for employers to be able to verify that employees are completing professional tasks during working hours.

What does this mean for employers?

This decision does not change the current position in the UK despite the fact that some media headlines have trumpeted this decision as confirmation from Europe that employers have ‘carte blanche’ to monitor staff communications. The reality is that employers do not have ‘carte blanche’. They are, however, entitled to monitor employees’ use of information technology at work for the purpose of establishing whether employees are fulfilling their duties and abiding by contractual obligations. It remains the case that an employer’s right to monitor employees has to be balanced against the employee’s right to privacy. As such, employers should carry out risk assessments before introducing monitoring. The key questions to ask are whether the purpose of the monitoring is legitimate and whether it goes any further than is necessary to achieve that. It is also essential that employees are given notice that such monitoring may take place so there is a clear expectation that communications may not be private. It is advisable to review IT usage policies on a regular basis and to ensure that new joiners are made aware of the company’s policies from the outset.

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