Making Adjustments for Disabled Employees and Job Applicants
Disability as a Protected Characteristic
The Equality Act 2010 (the “Act”) protects, amongst others, employees and job applicants who have a disability, which is a protected characteristic under the Act. The Act considers a person to have a disability if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Some conditions such as cancer and multiple sclerosis, for example, fit clearly into this category, whilst other conditions, for example Asperger’s syndrome, dyslexia, and other mental conditions such as depression, are not self-evident and may only impact or become evident in particular situations. Employers need to be particularly careful about making adjustments for these less ‘obvious’ disabilities, as the Government Legal Service (GLS) recently discovered to its detriment.
In the case of Government Legal Service v Brookes UKEAT/0302/16, the Employment Appeal Tribunal (EAT) upheld the decision of an Employment Tribunal (ET) that by requiring a job applicant with Aspergers to take a multiple choice test as part of a job application, the Government Legal Service (GLS) was liable for indirect discrimination.
The Facts of the Case
Ms Brookes, a law graduate, applied for a job with the GLS whose recruitment processes are highly competitive. Job applicants are required to complete and pass a multiple choice situational judgment test in order to progress to interview stage. Prior to sitting the test Ms Brookers contacted the GLS and asked for permission to provide her answers in short written form, as multiple choice questions would disadvantage her as somebody with Aspergers. The GLS refused her request and instead offered extra time for tests at a later stage providing that Ms Brookes pass the preliminary round. Ms Brookes did not pass the situational judgment test and was therefore unsuccessful in her job application.
Ms Brookes brought a claim to the ET for disability discrimination. She claimed that the multiplice choice situational judgment test put her at a particular disadvantage compared to other candidates who did not have Aspergers, that this was unjustified and that GLS had not made any reasonable adjustments to the test to enable her to overcome her disadvantage.
Indirect Disability Discrimination
Under the Act indirect discrimination occurs where an employer applies a provision, critierion or practice (PCP) to everyone in the same way but the effect of it is to particularly disadvantage a disabled person. It is possible for the employer to justify indirect discrimination if it can show that it is a “proportionate means of achieving a legitimate aim”, which essentially means that it is fair and reasonable and that all alternative arrangements were considered.
The ET and EAT Rulings
The ET upheld Ms Brookes’ claim of disability discrimination and considered that her requested adjustment was reasonable. Medical experts provided evidence that multiple choice tests generally place those with Aspergers at a particular disadvantage compared to people who do not have Aspergers, as people with Aspergers often lack social imagination. The GLS could not provide an alternative reason as to why Ms Brookes failed the situational judgment test. The ET concluded that although in setting the multiple choice test the GLS was pursuing a legitimate aim of testing the job applicants’ decision-making skills, the means of achieving this aim were not proportionate. The GLS could have granted Ms Brookes’ reasonable request for adjustment.
The ET ordered the GLS to pay Ms Brookes compensation amounting to £860 and recommended that it make her a written apology. The EAT dismissed the GLS’ subsequent appeal, recognising that whilst the GLS needed to test the job applicants’ skills, the way in which it did this (psychometric testing) was not an exhaustive method.
Recommendations for Employers
This case demonstrates how important is it for employers to consider and make reasonable adjustments for disabled employees and job applicants. Employers are advised to ask on application forms whether the applicant requires any reasonable adjustments to be made and if so, to enquire for more details from the applicant. If the applicant requires an adjustment which is practicable and does not make the recruitment procedure less effective, then employers should consider making that adjustment. The law does not require employers to make tests easier for disabled people, and thereby lower recruitment standards for disabled people.
Calculating a Day’s Pay
If someone earns an annual salary – how do you work out a ‘day’s pay’? You might think that this would be a straightforward question – but far from it. Most employment law deals with a week’s pay or – in the case of paid annual leave under the Working Time Regulations – a proportion of a week. To think about a day’s pay you have to refer to the Apportionment Act 1870 – and even then, the answer is not entirely clear.
The case of Hartley and others v King Edward VI College, concerned teachers at a sixth form college who took industrial action. That meant that the employer was entitled to make a deduction from their pay to cover the work they had refused to do. The employer worked on the basis that there were 260 working days in the year (52 weeks, with five working days a week, including paid holidays) and made deductions for each day amounting to 1/260 of each teacher’s annual salary. The teachers argued however that the Apportionment Act provides that any payment made by way of salary accrues on a day-by-day basis. This meant that the deduction should be based on 1/365 of their annual salary. The Court of Appeal favoured the 1/260 approach on the basis that the Apportionment Act did not require the day-by-day accrual of salary by an exactly equal amount each day –and it was clear that the teachers were employed to work for 260 days in a year.
The Supreme Court disagreed. The proper way to apply the Apportionment Act was to assume an equal accrual of salary on a day-by-day basis and the best way of calculating that was to divide the annual salary by 365. It was open, however, to employers and employees to agree on a different rate of accrual (or on no daily accrual at all) but the Supreme Court did not think that merely setting out a five-day working week in the contract was enough to show that there was such an agreement – particularly since the teachers in this case regularly had to work at weekends in order to prepare for lessons and mark work. The teacher’s claims were upheld.
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Considering that the concept of indirect discrimination was introduced in the mid-1970s, you might have thought that the main issues would have all been sorted out by now. But in two joined cases the Supreme Court has had to set the Court of Appeal right on a couple of key points.
In Essop v Home Office civil servants were required to pass a written test in order to qualify for promotion. An impact assessment revealed that Black and Minority Ethnic (BME) staff were significantly less likely to pass the test than others – although there was no indication as to why that was. A group of them brought an indirect race discrimination claim on the basis that the requirement to pass the test placed BME staff at a particular disadvantage and that the requirement could not be justified as a proportionate means of achieving a legitimate aim. The Court of Appeal held, however, that in order to show that the individual Claimants suffered the same disadvantage as the group of BME staff as a whole, it was necessary to show why BME staff were more likely to fail and that the individual Claimants had failed the test for the same reason.
In Naeem v Ministry of Justice the issue was the pay of prison chaplains. Muslim chaplains, on average, earned less than Christian chaplains. This was because their pay scale was based on length of service and Muslim chaplains – who had only been recruited since 2002 – tended to have shorter service than their Christian counterparts. The Court of Appeal rejected claims of indirect discrimination based on religion or belief on the basis that it was clear that the reason – length of service – that Muslim chaplains were placed at a disadvantage was nothing to do with their religion.
The Supreme Court held that in each case the Court of Appeal had taken the wrong approach. In an indirect discrimination claim, what had to be shown was that there was a ‘provision criterion or practice’ (PCP) which put those sharing a protected characteristic at a particular disadvantage; put the individual Claimants at the same disadvantage – and which could not be shown to be a proportionate means of achieving a legitimate aim. There was no need to consider why the disadvantage arose – it was enough that it did. In the Home Office case the Claimants clearly suffered the same disadvantage as BME staff as a whole in that they were all denied promotion because they failed the test. There was no need to consider why they had failed. As for the prison chaplains in the Ministry of Justice case, the fact that the reason for the disadvantage was not religion simply did not matter. This was an indirect discrimination claim – not a claim for direct discrimination – so the ‘reason’ lying behind the disadvantage was not relevant.
The Supreme Court sent the Home Office case back to the Tribunal to decide whether the test applied was a ‘proportionate means of achieving a legitimate aim’. As for the prison chaplains, although they won on the interpretation of the law, they actually lost their case. The Tribunal had held that the pay scheme operated by the Ministry of Justice was a reasonable one given that the employer was seeking to reform it – and the Supreme Court held that the Tribunal was entitled to reach that decision.
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The issue of who is an ‘employee’, who is a ‘worker’ and who falls into neither camp is clearly going to be one of the big issues of 2017. Following on from the Uber and Deliveroo cases we highlighted in our November 2016 bulletin, headlines were made recently by the case of Pimlico Plumbers Ltd v Smith in which a plumber is claiming that he should be able to bring a range of employment law claims even though his contractual documentation stressed that he was self-employed.
Mr Smith was engaged by Pimlico Plumbers in 2005. Many of the features of his work were clearly inconsistent with being employed under a contract of employment. He was responsible for purchasing his own raw materials, for example, and was able to charge a ‘mark-up’ to the company when he used them in the course of his work. He also took full advantage of his self-employed tax status by setting off a considerable amount of his earnings as expenses, and was registered for VAT. It could not have been a surprise that the employment tribunal ruled that he was not an employee and could not bring a claim for unfair dismissal.
However, the tribunal went on to find that he could bring claims under the Equality Act 2010 on the basis that he was disabled – and also claim holiday pay under the Working Time Regulations 1998. To bring these claims Mr Smith did not need to show that he had a contract of employment, merely a contract which required him ‘personally’ to do work for Pimlico Plumbers and under which they could not be regarded as a client or customer of his own business undertaking.
In reaching the conclusion that Mr Smith did indeed meet this test (which made him a ‘worker’ under the Working Time Regulations 1998 and an ‘employee’ under the Equality Act 2010) the tribunal found that there was an on-going obligation on Mr Smith to provide his services personally – indeed it was expected that he would do so on a full-time basis. He was not able to compete freely with Pimlico Plumbers by doing work for other firms or customers and that indicated that he was not ‘in business on his own account’.
On appeal to the Court of Appeal, Pimlico Plumbers argued that there was no real obligation on Mr Smith to do his work ‘personally’ and that he could have engaged someone else to do it on his behalf. The Court rejected this. The most that could be said was that Mr Smith could arrange for other operatives to cover his work if he had another job to go to. That fell far short of a ‘right of substitution’ that would indicate that there was no obligation on Mr Smith to provide personal service.
Pimlico Plumbers also argued that Mr Smith was actually engaged under a series of individual assignments rather than under one continuous contract under which he worked full-time. They argued that the tribunal had therefore been wrong to find that Mr Smith was not in business on his own account. The Court of Appeal rejected this line of argument as well. A number of fixed expenses were deducted from Mr Smith’s pay and so Mr Smith had to work a certain number of hours to make the work worthwhile for both parties. The tribunal had been entitled to find that there was a continuing obligation on Mr Smith to work for Pimlico Plumbers. The appeal was dismissed.
New Trade Union Act
The major provisions of the Trade Union Act 2016 came into force on 1 March, 2017. This means that from now on industrial action ballots will only be lawful if at least 50 per cent of those being balloted cast a vote. Where the majority of those being balloted are engaged in ‘important public services’ then there is an additional requirement that at least 40 per cent of those entitled to vote, vote ‘yes’. That means that if there are 100 union members(let’s keep the maths simple), then a 26-25 vote in favour of industrial action will be sufficient in most cases but a 40-10 vote (or better) will be needed in cases involving those key services.
A number of regulations now set out just what services attract this 40 per cent threshold and the Government has taken a very narrow view. Teachers are covered – but not teaching assistants or other support staff in schools. Firefighters and those involved in answering emergency calls are also covered, as are ambulance, hospital and medical staff dealing with emergency situations. London bus services are included – as are all passenger trains and trams – but not bus drivers in other towns and cities. Security workers at ports and airports attracts the higher threshold, but cabin-crew and baggage handlers do not.
Other measures coming into force require unions to give 14 days’ notice of industrial action – and limit the validity of future trade union ballots to six months (or nine months with the employer’s agreement).
These measures are clearly designed to make industrial action harder to organise and therefore less common. However, unions have adapted to previous requirements placed on them and now that they need to achieve a high turnout in industrial action ballots, we can expect them to put serious effort into doing just that. Indeed, a strong yes vote in a ballot with a high turnout can be a powerful weapon for a union to wield at the bargaining table.
It may be that the 2016 Act will only have a muted effect on the levels of industrial action – even in those sectors that that the Government is clearly most worried about. If that proves to be the case, then we could see yet another Trade Union Act before the decade is out.