UK: Employment Briefing - November 2011

Last Updated: 29 November 2011
Article by Brian Gegg and Jesper Christensen

Joint and several liability in discrimination claims

The EAT has highlighted the potential personal exposure for individuals in discrimination claims. A claim for discrimination can be brought both against an employer organisation (the principal) and individuals (agents). Where all or some respondents are found to be jointly and severally liable for the same damage suffered by the claimant, compensation can be recovered from any of them although the liabilities between the respondents are several (so that one respondent can pursue the others to pay for their share).

In practice, most compensation payments are met in their entirety by the employer. In Bungay and another v Saini and others, however, the employer company, the All Saints Haque Centre, had gone into compulsory liquidation shortly after the decision on liability was given. Two board members, Mr Bungay and Mr Paul, had been found liable with the Centre for direct religion and belief discrimination and harassment. They argued that they should not have been made jointly and severally liable for the discrimination compensation and aggravated damages awarded. The EAT disagreed, noting that Mr Bungay and Mr Paul had been 'prime movers' in the discriminatory campaign which led to the dismissal of the claimants.

The decision highlights the importance of an employee who is named as co-respondent to a discrimination claim ensuring that his own interests are properly protected. If the employer fails to pay any compensation due, an employee who is held to be jointly and severally liable may end up having to foot the entire bill.

The EAT also held in this case that post employment behaviour can extend beyond the respondent's handling of the case and may contribute, as in this case, to aggravated damages. Mr Bungay and Mr Paul's unfounded and malicious complaints made to the police about the claimants after their dismissal could be taken into account when calculating aggravated damages. However, it noted that such post employment conduct must be sufficiently serious and also sufficiently connected to the discriminatory conduct which formed the substance of the claim.

Reasonable adjustments: EAT guidance

In Salford NHS Primary Care Trust v Smith the EAT decided that it was not a reasonable adjustment for the purposes of the Disability Discrimination Act (DDA, now enshrined in the Equality Act) to propose a career break to an employee who was on long term sick leave.

Mrs Smith worked as an occupational therapist for the Trust until she fell ill with chronic fatigue syndrome and was signed off on long term sick leave. A phased return was suggested by the Trust's occupational health therapist (OH); alternatively a career break was suggested to allow her breathing space. Mrs Smith declined offers of various posts, did not attend 2 scheduled meetings and did not accept the Trust's offer of IT training so that she could undertake a non-client facing IT role. Finally the Trust wrote stating that it might have to 'consider employment options including termination'. Mrs Smith responded by tendering her resignation, which was accepted. She then brought a claim for breach of the DDA, stating that the Trust had failed to make reasonable adjustments to facilitate a return to work and that she had been constructively dismissed.

The EAT, overturning the lower court's decision, held that reasonable adjustments are limited to those that prevent the provision, criterion or practice which place the disabled person at a disadvantage. They are primarily concerned with enabling the disabled employee to remain in or return to work with the employer. Matters such as consultations and trials, exploratory investigations and the like do not qualify as adjustments. The tribunal was wrong to have suggested that 'rehabilitation duties' would have been a reasonable adjustment. Nor, however, was the OH's suggestion of a career break a reasonable adjustment. It would not have alleviated the disadvantage.

The EAT held that there had, however, been no constructive dismissal. The Trust's letter to Mrs Smith had been 'wholly innocuous' and 'standard and reasonable'.

The key point in this case is the consideration of what qualifies as a reasonable adjustment. In line with the reasoning in earlier cases, the EAT held that consultations, trial periods and similar do not qualify as adjustments because reasonable adjustments should focus on getting the employee back to work.

Adjustments: further EAT guidance

Further clarification on what constitutes an adjustment for the purposes of the Disability Discrimination Act (see above) was provided by the EAT in Leeds Teaching Hospital NHS Trust v Foster. In this case, the EAT held that a proposed adjustment need not have a 'good or real prospect' of removing the disadvantage to be reasonable. The failure of the Trust to place Mr Foster early enough on the redeployment register meant that it had failed to make a reasonable adjustment. It was not necessary to say that placing Mr Foster on the register would have given him a good or real prospect of achieving alternative work with the Trust.

Legality of linking pay to age

In Hennigs v Eisenbahn-Bundesamt and Land Berlin v Mai C the ECJ considered whether a measure in a collective agreement which linked the basic pay of public sector workers to their age was in breach of the Equal Treatment Directive. The ECJ held that the transitional rules on pay did infringe the prohibition on age discrimination and that this did not interfere with the right to negotiate and conclude collective agreements under the terms of the EU Charter of Fundamental Rights (which recognises the right of collective bargaining and to conclude collective agreements).

The ECJ held that the pay system did create a difference of treatment based directly on age for the purposes of the Directive but that it was capable of justification. The fact that there was a collective agreement did not affect whether or not the system was justified. However, the rules pursued a legitimate aim, namely to maintain existing employees' pay. The transitional measures were not unreasonable, were appropriate to avoid existing employees' loss of pay and did not go beyond what was reasonably necessary to achieve that aim. The fact that the rules were transitional and temporary played a key part in the ECJ's decision that they were capable of justification.

References: outstanding allegations

The Court of Appeal in Jackson v Liverpool City Council considered a claim for damages against the Council when it provided a reference which encompassed concerns about Mr Jackson's work which had come to light after the termination of his employment. These concerns about recording and record keeping had not been investigated. When questioned by the recipient by telephone, the reference giver explained that the concerns had not been investigated and so she could not give a positive or negative response to the question whether the Council would re-employ Mr Jackson.

The Court of Appeal held that the Council had not erred in giving a reference which referred to concerns which had not been investigated since it had made clear the lack of investigation. Crucially the Council had made clear that had the allegations been upheld they would have not resulted in dismissal but in a performance improvement plan.

The Court of Appeal emphasised the law concerning the duty of care in the giving of references is that of the law of negligence. It is key that when giving a reference, the facts are accurate and true. The question of fairness goes to the overall balance of the reference.

Social media: Facebook

The use/abuse of social media at work is a growing trend to which employers should be alive. Below, in our 'And finally...' section, we highlight Acas guidance on social networking and a report on social media in the context of collective industrial relations.

In Whitham v Club 24 Ltd t/a Ventura, a tribunal held that an employee had been unfairly dismissed for making 'relatively minor' derogatory comments about her workplace on Facebook. She had made generic comments about her workplace being like a 'nursery' and referred to 'bastards' grinding her down at work. The exchange was reported by some of her colleagues, Ms Whitham was suspended and then dismissed for misconduct despite having apologised.

The tribunal which heard Ms Whitham's unfair dismissal complaint felt that dismissal fell outside the band of reasonable responses and that Ms Whitham had been unfairly dismissed. There was no reference in the comments to clients or individuals nor was there evidence of any harm caused by the exchange. The decision contrasts with that in Preece v JD Wetherspoons plc in which an employee was held to have been fairly dismissed for having made derogatory comments about customers on Facebook. In that case, Wetherspoons were able to rely on its written policy which specified the sanctions for making derogatory comments in blogs about customers, fellow employees or the employer.

This case illustrates not only the importance of having a well drafted social media policy but also of assessing the real damage actually caused by any infringement.

And finally...

Social media guidance

Acas has produced guidance on 'Social Networking' for employers encouraging them to introduce policies on the use of social media at work. The guidance covers a range of related issues such as bullying and performance in the light of the use and abuse of social media.

Acas has also published a report ('Social media and its impact on employers and trade unions') which highlights the effect of social media in collective industrial relations.

Equality Act (Specific Duties) Regulations 2011

The Equality Act 2010 (Specific Duties) Regulations 2011 came into force on 10 September 2011 and require any public bodies listed in Schedule 1 to the Regulations (eg FSA) to publish information demonstrating compliance with s149(1) of the Equality Act 2010 by 31 January 2012 and every year thereafter. Public bodies listed in Schedule 2 (eg educational institutions) have to comply by 6 April 2012 and every year thereafter.

The Regulations provide that the information must include information relating to those who share a 'protected characteristic'.

Pay for interns?

A campaign has been launched, led by the graduate careers website 'Graduate Fog', to name and shame organisations that recruit interns to carry out 'proper work' but do not pay them the national minimum wage (NMW). Meanwhile, the government has published revised guidance on the issue of when interns should be paid the NMW.

Rise in part time workers and age discrimination claims

The ET and EAT 2010/2011 statistics have been published, showing a threefold increase in part time workers' claims and a 32% increase in claims for age discrimination. Claims for unfair dismissal and redundancy pay have fallen slightly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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