Welcome to our September HRizon employment law newsletter. We consider the government's commitment to introduce unpaid carer's leave and its consultation about making changes to the right to request flexible working. We also look at the first known UK finding of indirect associative discrimination and highlight other recent employment law cases and HR news from the last month.
IN THE EMPLOYMENT APPEAL TRIBUNAL (EAT):
Was a part-time worker who did not receive the same rest breaks as full-time workers on the same shift treated less favourably?
Part-time workers must not to be treated less favourably regarding the terms of their contract due to their parttime status when compared to their full-time counterparts. The effective and predominant reason for the difference in treatment must be their part-time status, but this does not need be the only or sole reason. The EAT has recently considered whether a part-time worker was treated less favourably when he did not receive the same rest breaks as full-time workers working alongside him on the same shift.
C, a phlebotomist, worked an average of 16 hours pw. C's shift pattern included 4-hour midweek shifts and 6-hour weekend shifts. Workers were given a 'complimentary' 15-minute paid rest break during shifts which lasted six hours or more. C claimed that, due to his part-time worker status, he did not receive a complementary paid break of 15-minutes during his shorter 4-hour shifts and sought to compare himself with full-time colleagues who did receive the breaks because their shifts lasted at least six hours. The employment tribunal (ET) upheld C's part-time worker discrimination claim.
Upholding the employer's appeal, the EAT held that the ET had erred when it had concluded that the reason for the difference in treatment between C and his full-time comparator was 'on the ground' of his part-time status. It was an agreed fact before the ET that the criteria for whether a shift included a break or not depended solely on the length of the shift in question. The ET had also made further factual findings which were consistent with that agreed position. The ET had made no factual finding which would support any causal link between shift length and part-time status. Therefore, there was no basis on which the ET could properly have come to the view that the difference in treatment was C's status as a part-time worker. The real reason C was not entitled to the complimentary rest-breaks during his mid-week shifts was the fact they were of a shorter shift length of four hours, not due to his status as a part-time worker. The EAT substituted a finding that C's claim be dismissed.
Was an employee contractually entitled to annual increases in his income protection payments?
Permanent health insurance or income protection cover is a popular contractual benefit offered to staff. If a worker has a long-term illness and cannot return to work, the cover provides them with a percentage of their salary. Although some employers self-fund this benefit, many take out insurance cover. The EAT has recently considered whether an employee was contractually entitled to annual increases (which were not covered by the insurer) in the income protection payments he received.
When L, a test engineer, commenced employment he was given various documents that set out the level of income protection cover he was entitled to under a long-term sickness scheme. The documentation included reference to an 'escalator' of 5% per annum, which would apply after the first 52 weeks of income protection payments. This 'escalator' was designed to ensure that inflation did not erode the level of cover over time. L began a period of long-term sickness absence and began to receive income protection payments in 2009. After L's employment TUPE transferred, he noticed that the income protection payments he was receiving did not include the annual escalator. The new employer said that its underlying insurance cover did not provide for the 'escalator' to be applied to income protection payments. L brought a claim for unlawful deduction from wages.
The employment tribunal upheld L's claim and held that L was contractually entitled to the annual escalator payments. The EAT dismissed the employer's appeal. The EAT held that the summary of benefits originally provided to L had contained terms that were clear and certain. Objectively, it was clear that those terms were intended to be incorporated into his employment contract. The terms gave L a contractual entitlement to the escalator. The fact that the terms referred to underlying insurance cover did not limit L's contractual entitlement to the income protection provided by the insurance cover. L's employer was bound by the contractual commitment it had inherited from his previous employer on his TUPE transfer.
IN THE EMPLOYMENT TRIBUNALS (ET):
Indirect associative discrimination: was it discriminatory to dismiss a homeworker who refused to switch to working in the office because she needed to care for her disabled mother?
Indirect discrimination occurs where an employer applies a provision, criterion or working practice (PCP) equally to all workers, but this inadvertently puts a group of workers sharing a protected characteristic at a particular disadvantage in comparison to other workers. The European Court of Justice has previously held, in the context of a race claim, that it is also possible to claim 'associative' indirect discrimination: provided the worker also suffers the disadvantage, they do not themselves have to hold the protected characteristic to form part of the disadvantaged group. (CHEZ Razpredelenie Bulgaria AD -v- Komisia za zashtita ot diskriminatsia and third parties  EUECJ C-83/14). The first known case to consider the domestic application of the CHEZ principle has recently been heard by London Central ET, considering whether it was indirectly discriminatory to dismiss a homeworker who refused to switch to working full-time in the office because she needed to care for her disabled mother.
F worked as a senior lending manager for a building society. She was employed on a homeworker contract - her principal place of work was her home, but she attended the office on two to three days a week. The employer was aware that the primary reason F worked from home was because she was the carer for her disabled mother. In October 2017, the employer decided that there would be a reduction in the number of senior lending managers (from 12 to 8). It was also decided that the roles would be office-based, because feedback from junior staff suggested dissatisfaction with the levels of supervision they received. F's role was placed at risk of redundancy and volunteers were sought for voluntary redundancy. F did not volunteer and expressed the wish to remain in employment and continue as a homeworker. Although more than enough volunteers came forward, the employer asked some of them to remain in employment and F was selected for redundancy. F brought various claims, including one of associative indirect discrimination.
The ET firstly considered whether the CHEZ principle could apply and held that s19 Equality Act 2010 (indirect discrimination) must be read in a manner consistent with the ECJ's judgment in CHEZ. The protection from indirect discrimination applies both to the employee's own protected characteristic and to employees who are associated with a person with a relevant protected characteristic. The employer had conceded that it had applied a PCP that senior lending managers could no longer work from home on a full-time basis. The ET held that carers for disabled people were less likely to be able to be office-based than non-carers. Therefore, as her principal carer, F was put at a substantial disadvantage because of her association with her mother's disability.
On the issue of whether the PCP was objectively justified, the ET held that the need to provide effective on-site supervision could not be a legitimate aim because it was itself discriminatory. In the alternative, even if it had been a legitimate aim, dismissing F was not a proportionate means of achieving that aim, because hybrid working could have achieved the aim given F's track record of providing effective supervision to junior staff from home. The ET noted that the employer was fully aware of both F's mother's disability and the disadvantage that F would suffer by the application of the PCP to be office-based. The ET considered that the PCP did not correspond to a real need of the employer, and it was based on the employer's subjective view rather than on any actual evidence or rational judgment. The employer had not taken reasonable steps to avoid the disadvantage to F. The ET held that F had been indirectly discriminated against on the grounds of her association with her disabled mother.
Brexit: CHEZ, as pre-Brexit ECJ case law, forms part of retained EU law. Courts and tribunals must continue to interpret domestic legislation in line with EU law. Only the Supreme Court and the Court of Appeal may depart from EU case law when it appears right to do so. (Follows -v- Nationwide Building Society  ET 2201937/2018V)
Was it automatically unfair to dismiss a probationary employee for refusing to deliver equipment to the home of someone who was self-isolating?
Several health and safety-related grounds for dismissal are treated as inadmissible reasons for the purpose of automatic unfair dismissal, and no qualifying period of service is required. For example, where the employee is dismissed because, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or other persons from danger. The employee is also protected where they bring circumstances connected with their work, which they reasonably believed were harmful or potentially harmful to health or safety, to the attention of their employer. Cardiff ET recently considered whether an employer had automatically unfairly dismissed a probationary employee for refusing to deliver equipment to the home of someone who was self-isolating.
The employee, H, commenced work in November 2019 as an area supervisor for a cleaning services firm. The contract provided that the first six months of employment was a probationary period. After the first national lockdown was announced in late March 2020, H was given an instruction by his manger to collect some equipment from a school and deliver it to her home. At the time, the manager was self-isolating at home with her daughter due to suspected COVID-19 symptoms. In response to this instruction, H spoke to his manager on the telephone and queried whether the journey was 'essential travel' (in light of the ban on non-essential travel) and whether it was sensible for him to deliver the equipment to her house as instructed while she was self-isolating with possible COVID-19. H's reluctance to follow his manager's instructions led to a heated discussion in which she said: 'I am your manager and you should not question me, and if I tell you to do something you should do it'. H again raised concerns about his health and noted that the school was closed so the equipment could be collected once the national lockdown ended. H was subsequently dismissed for failure to follow a reasonable management instruction and his 'poor and inappropriate attitude'. In his internal appeal against his dismissal, H expressed concern for his and his family's health.
The ET held that H's dismissal was automatically unfair because it was for the principal reason that he had raised health and safety concerns. When H raised concerns about being instructed to go to the home of two self-isolating individuals during late March 2020, he was raising concerns that he reasonably believed the instruction was harmful or potentially harmful to his health and safety, and by refusing to follow the instruction he had sought to take appropriate steps to protect himself from danger in circumstances which he reasonably believed to be serious and imminent. Although H's line manager was inexperienced and dealing with much uncertainty at the beginning of the pandemic, her reaction to H raising those concerns was unreasonable. H's dismissal was automatically unfair, and he was awarded £16,640 in compensation. (Ham -v- Esl Bbsw Ltd  ET 1601260/2020)
Note: ET-level decisions are merely of persuasive value and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being deal with in the ET.
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.