UK: Employment Legal Update July 2019

Last Updated: 9 August 2019
Article by Nicholas Hall

Discrimination due to a "perceived" disability can be unlawful

The recent decision of Chief Constable of Norfolk v Coffey has established that discrimination due to a perceived disability is unlawful.

Mrs Coffey, who suffered from slight hearing loss and tinnitus, applied to work as a police constable for Wiltshire Constabulary (WC). A medical investigation took place which found that Mrs Coffey did not meet the Home Office's National Recruitment Standard. WC applied the guidance and Mrs Coffey undertook, and successfully passed, a practical functionality test. Mrs Coffey commenced work as a constable without requiring any workplace adjustments.

Subsequently, Mrs Coffey applied for a transfer to Norfolk Constabulary (NC). She disclosed her hearing loss and a copy of the functionality report showing she could perform her existing role without any adjustments. However, NC sought further medical opinion and, despite confirmation that Mrs Coffey's hearing levels were stable, NC rejected Mrs Coffey's transfer application on the basis that she was "just outside the standards for recruitment" in respect of her hearing and so they thought it would impact on her ability to do the role in the future. Mrs Coffey issued proceedings for direct disability discrimination.

The Employment Tribunal (ET) found that NC had directly discriminated against Mrs Coffey by perceiving her to have an actual or a potential disability which could result in NC having to make reasonable adjustments to her role, whether now or in the future. NC appealed to the Employment Appeal Tribunal (EAT), who dismissed the appeal and agreed with the ET that NC should not have rejected Mrs Coffey's application on the basis she would not be able to undertake her role in the future.

NC appealed to the Court of Appeal (CA) who upheld the earlier ET and EAT decisions. The CA held that in claims of perceived disability discrimination the discriminator must believe all the elements in the statutory definition of disability (i.e. that the individual has a physical or mental impairment that has a substantial and long-term adverse effect on the individual's ability to do normal daily activities) are present, even if they do not attach the label of disability to them. NC was held to have believed that Mrs Coffey's hearing loss would, currently or in the future, render her unable to perform the duties of a front-line officer and perceived that it would have an effect on her ability to carry out normal day to day activities. It followed that any such effect would be substantial and adverse and would lead to Mrs Coffey being taken off front line duties. The CA held that that was unlawful discrimination.

Is an employer liable for discriminatory actions taken by an employee on their private, social media account?

The EAT in Forbes v LHR Airport Ltd has held that an employer was not vicariously liable for harassment caused by an employee's racially offensive post on Facebook, which was shared with her friends (including her work colleagues) as it was not done "in the course of employment".

Mr Forbes worked as a security officer for London Heathrow Airport (LHA). Another employee (DS) shared an image of a golliwog on her Facebook page, accompanied by the tag, "let's see how far he can travel before Facebook takes him off". The image was shared with DS's friends, including a work colleague BW. BW later showed the image to Mr Forbes who complained to his line manager. Mr Forbes then issued a formal grievance and DS was subject to a disciplinary investigation. DS offered an apology and received a final written warning. Mr Forbes was later posted to work alongside DS. Mr Forbes complained and was subsequently moved to another location without explanation. Mr Forbes believed that he had been victimised for raising a grievance, was signed off sick and 4 months later, shortly before his return to work, brought a claim of harassment against LHA.

The ET dismissed Mr Forbes' claims on the basis that DS's action in sharing the images on Facebook were not done "in the course of employment", which is an essential element for the employer to be found vicariously liable. DS did not post the image at work nor did she mention any colleagues in the image or state she was an employee of LHA. The ET accepted that the image was offensive and caused Mr Forbes offence, however this was not DS's purpose which is evident in her willingness to apologise. Mr Forbes appealed to the EAT.

The EAT dismissed the appeal. Whilst acknowledging that facts involving social media communication can blur the lines, the EAT reiterated that DS's actions were not done "in the course of the employment". The average individual would not consider that the sharing of an image on a private Facebook page unconnected with work, with a list of friends that largely did not include work colleagues, was done in the course of employment. The fact that the image was later showed to Mr Forbes at work was irrelevant to the question whether DS's act of sharing it on Facebook was done "in the course of employment".

Secret recordings of an HR meeting – gross misconduct?

The case of Phoenix House v Stockman held that an employee's compensation could not be reduced on account of the employee's covert recording of a meeting with HR.

Ms Stockman was employed as a financial accountant for a charity, Phoenix House. She reported to the Head of Finance, who reported to the Finance Director. Following a restructure, Ms Stockman's post was removed, and she successfully obtained a new, but more junior, role. Ms Stockman complained of unfair treatment to the Head of Finance that the Finance Director was biased against her and that her concerns were supported by another colleague. A meeting occurred between the Finance Director, the Head of Finance and the other colleague to discuss the matter. Ms Stockman interrupted the meeting, demanding to know what was being discussed and refused to leave when asked.

Ms Stockman was later invited to a meeting with HR which she secretly recorded. Ms Stockman was informed that she would be disciplined for her earlier conduct. Ms Stockman raised a grievance citing unlawful harassment by the Finance Director. However, her grievance was dismissed. Ms Stockman was later summarily dismissed for her distrust of senior management and she filed a claim for unfair dismissal.

The ET upheld the claim but, during the ET hearing, it transpired that Ms Stockman had recorded the meeting with HR without informing them that she was doing so. On appeal to the EAT Phoenix House argued that any compensation awarded to Ms Stockman should be reduced as a result of the covert recording. The EAT upheld the ET's decision, finding that covert recording was not referred to within the charity's disciplinary policy as an example of misconduct. As such, the EAT held Ms Stockman was not using the covert recording to deceive her employer but due to concerns regarding her own position.

WHAT TO LOOK OUT FOR

Post-Brexit migration salary review

The Home Secretary, Sajid Javid, has announced plans to review the minimum salary threshold for highly-skilled workers coming into force in 2021. Discussions are being held on the amount of increase to be made to the current salary threshold of £30,000. The Home Secretary has proposed several questions to the government's Migration Advisory Committee (MAC), which includes whether salary thresholds should be regional. MAC will present their findings in January 2020.

National Retraining Scheme

The government has announced that the National Retraining Scheme, a national scheme designed to reduce job displacement by retraining workers whose jobs may be lost due to automation, will be trialled in Liverpool. The scheme will aim to tackle the consequences of up to 20 million manufacturing jobs being lost due to automation internationally by 2030.

The scheme aims to support workers, by assisting them in their search for a new career and providing them with opportunities to gain more skills in the event of their jobs changing.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions