Clyde & Co's UK employment team brings you CABLE, a monthly bulletin keeping you up to date with recent legal developments.
Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice  UKSC 27 - The scope of indirect discrimination
Employees at the Home Office had to pass an assessment for certain promotions. A report established that pass rates of black and minority ethnic (BME) and older candidates were lower than white and younger candidates, although it wasn't clear why.
Indirect discrimination occurs if a provision, criterion or practice (PCP) puts people with a protected characteristic (e.g. age, race, religion) at a particular disadvantage, and is not objectively justified.
The Supreme Court confirmed that it was not necessary for the BME candidates to explain the reason why the PCP (in this case, the assessment) put them, as a group, at a disadvantage when compared with others. It was sufficient that they failed the assessment disproportionately and that the Claimant suffered this disadvantage.
This decision brings welcome clarification on the basic requirements of group and individual disadvantage in indirect discrimination. Although it makes clear that there is no need for the disadvantaged group to show why the policy disadvantaged them as a group, it is always open to the employer to justify the policy - in other words, to show there was a good reason for it, which might then constitute justification.
Employers should consider whether any policies or practices may put employees with a protected characteristic at a disadvantage – and, if so, consider if they can be justified.
Dunne v Colin & Avril Ltd t/a Card Outlet UKEAT/0293/16 - Offer of suitable alternative employment
The Claimant refused an offer of alternative employment which involved some work in a warehouse, and her employer did not pay her statutory redundancy pay. Only when she later brought a claim, did she reveal that the job was not suitable because her leukaemia meant she could not work in the cold warehouse.
The EAT said that if an employer does not pay statutory redundancy pay they must show:
- the alternative employment offered was suitable
- the employee's refusal to accept that employment was unreasonable – although if the employee brings a claim, the tribunal may take into account reasons not raised by the employee at the time
Employers must ensure they follow a fair redundancy process, including exploring suitable alternative employment opportunities for affected employees.
If an employee refuses an offer of alternative employment, the employer should explore fully with the employee the reasons for their refusal before denying them their statutory redundancy pay.
REDUNDANCY/ UNFAIR DISMISSAL
Green v London Borough of Barking & Dagenham UKEAT/0157/16 - Competing for new roles
During a redundancy process, the Claimant was one of three employees selected to compete for two new jobs. She was not successful and was dismissed for redundancy.
The EAT said that the issue was whether, at each stage of the redundancy process, the employer had acted within the range of reasonable responses open to it in the circumstances.
At every stage of the redundancy process, including in the context of considering employees for alternative roles, employers must ensure the processes they follow and the decisions they make fall within the band of reasonable responses open to them in that situation.
Born London Ltd v Spire Production Services Ltd UKEAT/0255/16 - Employee Liability Information
Under TUPE, when there is a transfer the outgoing employer must provide the new employer with employee liability information which includes all the terms which must be given in an employee's statement of particulars.
In the employee liability information provided to the new employer, the employees' Christmas bonus was included in a list of non-contractual employment terms. However, following the outsourcing of printing services, it transpired that the bonus was contractual and the new employer brought a claim for failure to provide accurate information.
The EAT said that the outgoing employer does not have to specify whether or not any part of the remuneration is contractual.
This can be a difficult issue for the new service provider - the outgoing contractor may not cooperate in providing the information to them, and often there will not be warranties or indemnities for them to rely on. So incoming contractors should aim to find out as much as they can in the due diligence process and build in protection in the initial contract.
When providing employee liability information, outgoing employers should not state whether terms are contractual or otherwise.
The Government has now set up a 'beta' version of the website on which employers' gender pay gap information should be published, allowing employers and employees alike to compare gender pay gap information with their competitors. A few employers have already posted their figures but there does not appear to be any space for employers to include a narrative.