Summary and implications

Newspaper headlines this month featured all too frequently words such as “discrimination”, “equality” and “retirement”. Many employers complain that increasingly complex employment and equality laws limit their freedom to take necessary or desirable commercial actions. While this is true to a large extent, steps can be taken to mitigate the effect of some of these developments and, as is usually the case, prevention is better than cure.

This month's Employment Briefing edition focuses on a number of recent decisions which highlight the intricate balance between business needs and equality duties. In particular, we highlight the steps employers can or must take:

  • When dealing with exceptionally unacceptable behaviour on the part of an employee who has raised a discrimination-based grievance. The EAT has confirmed that, in some instances, the dismissal of such an employee for a reason that relates to the manner in which the employee brings or pursues a discrimination-based grievance will not amount to victimisation.
  • In relation to a disabled employee whose resignation was influenced by his/her mental impairment and who, after the event, asks the employer to take them back. The EAT has suggested an employer may be required to make this reasonable adjustment. Employers faced with a similar scenario will have to consider a number of issues, including whether they still have a vacancy which the employee can fill, the employee's likely ability to fulfil the role in question, and the costs and practicability of such an adjustment.
  • Many businesses want to appeal to a certain sector of society or the community in which they operate. Yet, in doing so they may end up discriminating against employees or others (e.g. customers). Sometimes, especially in the context of direct discrimination, there is no way round the law (as was the case for two B&B owners who refused to let a gay couple stay in their hotel). But, in some cases, creative thinking and flexible action that caters specifically for the needs of the business may help resolve the issue.

Victimisation: it's not what the employee is saying – it's how he is saying it!

You probably know that the law prohibits employers from victimising or retaliating against employees who complain of discrimination. As a result, employers are often very cautious (and even fearful) of dismissing an employee who has raised a grievance.

The law on victimisation is not absolute, however. There is a statutory limitation, for example. This means that an employee is not protected if s/he makes allegations in bad faith. And, a recent EAT decision offers additional comfort to employers. In brief, the EAT held that in some circumstances, the dismissal of an employee who had raised multiple, false grievances alleging discrimination would not amount to victimisation. In reaching this decision, the EAT focused on the “substantive or operative reason for the employer's decision” to dismiss, which it found to be separable from the employee's complaint.

On the fairly extreme facts of the case, said the EAT, the reasons for the dismissal were mainly the very large number of false, serious and highly repetitive allegations by an employee who, due to her disability, could not accept the falseness of her allegations and was highly likely to repeat them in the future. This led to substantial costs for the employer and a clear and serious breakdown of trust and confidence between the employer and employee.

Whilst the EAT was at pains to emphasise the unique factual background to its decision, the outcome will nonetheless be welcomed by employers. In appropriate circumstances, an employer will be able to say “I am dismissing you not because you raised a grievance but because of the exceptionally unreasonable manner in which you raised or pursued it”. The point to remember is, however, that you will have to be able to convince a tribunal that the behaviour around the grievance was so unreasonable it was effectively separate from the grievance and justified the dismissal.

Martin v Devonshires Solicitors (EAT)

“In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable.

“It would be extraordinary if [the victimisation] provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint.”

But: “An employer who purports to object to “ordinary” unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases.”

The duty to make reasonable adjustments continues after the end of the employment and may require an employer to take back a resigning employee

The Equality Act 2010 (and its predecessor the Disability Discrimination Act 1995) requires ex-employers to carry out reasonable adjustments where a provision, criterion or practice (PCP) which they apply places an ex-employee at a substantial disadvantage compared to others in a similar position.

Little attention has been paid to this strand of the duty to make reasonable adjustment and government guidance suggested it might be quite limited. It gave a single example only: a requirement that an ex-employer continues to facilitate access to a life-long membership club for a wheelchair-bound ex-employee.

Last month, the EAT took a much broader view. It held that, where an employee's resignation is connected to his/her disability (e.g. because the employee is depressed), the employer may have to make a reasonable adjustment in the form of taking the employee back. The usual factors for assessing what is reasonable will continue to apply: e.g. practicability of the adjustment, its cost and likely effect on the employee. However, it is worth noting that, in the particular case, the employer had tried to persuade the employee to retract her resignation on a number of occasions, the employee confirmed her resignation twice and has only changed her mind a few weeks later.

In our view, the decision is open to a challenge since in reaching it, the EAT compared the ex-employee's case with that of an existing employee. In the context of continuing employment it had been found to be a reasonable adjustment to move a disabled employee into another position within the organisation, without subjecting the employee to a competitive selection process. However, the question of what is a reasonable adjustment is very fact-specific. If you are faced with a similar situation consider the following points:

  • Do you have a vacancy which the ex-employee can fill (i.e. is reinstatement or re-engagement a possibility)?
  • Does the ex-employee have (or can acquire) the skills to do the specific job?
  • How is the ex-employee's impairment likely to manifest itself in the future? (It may not be reasonable for an employer to have to keep dealing with an employee who may resign on an all too regular basis.)

Did you know?

Recent employment tribunal statistics suggest an overall drop in the overall number of claims. However, there has been a significant increase in sex discrimination complaints. There are 10 times more age discrimination complaints than complaints on grounds of sexual orientation or religion or belief. More

Selecting employees to help you attract business: it's law before looks

Certain businesses, services and brands seek to attract specific sectors of society or the community. If, in doing so, they exclude or disadvantage customers or employees who fall outside the “favourable” group, they may face discrimination claims. Two very recent examples include the BBC and Realpubs Ltd (owners of the Coleherne pub). Both have been found to have directly discriminated against their staff in an attempt to attract certain customers. There are lessons to be learned from these cases:

  • Direct age discrimination (alone) can be objectively justified. Where there is a genuine business case for attracting customers from a certain age group, the business would often like to employ individuals that reflect that age group. Whereas attracting a certain customer base is likely to be a legitimate aim, the question remains whether it is proportionate to employ individuals of a similar age. If you have empirical evidence to support the view that “like attracts like”, you may have a good defence. Otherwise, you will be better off focusing on the particular set of skills you require and how these will help you achieve your business needs. For example, you may find that assessing understanding and experience relating to the travel needs of the over-65s in terms of suitable accommodation and facilities will lead to a larger proportion of older worker, although not necessarily strictly over 65. Therefore, if you build valid requirements into your assessment process, you are likely to be in a good position to explain and justify your recruitment decisions even if on the face of them they are age discriminatory.
  • How you implement your business decisions is also crucial. Clearly, you cannot instruct staff to discriminate (e.g. to refuse business from black customers). But what about indirect instructions to discriminate and more subtle action “suggestive” of discrimination? Realpubs Ltd recently found that whilst it was free to turn a “gay” club into a “straight” bar, its plans to put up a sign saying “this is not a gay pub”, its instruction of staff to sit “straight” customers in prominent positions and the decision to hire more female employees amounted to unlawful discrimination against its gay employees. The problem was not with Realpubs' commercial direction. The problems lay in how it implemented this decision.
  • Although UK law does not prohibit discrimination on grounds of appearance, looks or weight, these issues are prominent in the minds of some employers and in certain industries. Employees who believe they have been discriminated against on grounds of their appearance have successfully brought legal action on other existing protected characteristics, such as age, disability and sex.

Equal pay claims in the High Court

These claims are on the rise: in the private as well as public sector.

A recent high court decision suggests equal pay claims that are out of time in the employment tribunal will be heard by the civil courts. This will allow employees to complain of inequality of pay for up to six years from the date of the last breach, although subject to potentially significant costs implication.  

Another case on this point is proceeding in the courts and we will keep you informed.