Well, that was an uneventful summer wasn’t it? We’re back for another round-up of employment cases and I promise not to mention Brexit at all (apart from then).
There has been a rash of discrimination cases recently so this month’s bulletin is something of a discrimination special. If you like this (albeit accidental) themed approach, let us know, and we might make it a regular thing…
Maintaining pay after a reasonable adjustment
Employers are required by the Equality Act 2010 to make “reasonable adjustments” to assist disabled employees in certain circumstances. One common reasonable adjustment is the provision of alternative work. The disabled employee may no longer be able to do ‘job A’, but if he or she is capable of doing ‘job B’ then offering that alternative work might well be a reasonable adjustment. But what if ‘job B’ is paid at a lower rate? Does the employer have to continue paying the higher salary?
In G4S Cash Solutions (UK) Ltd v Powell the employee was employed as an engineer fitting and maintaining cash machines. He developed a chronic back condition that meant that he was no longer able to perform that work and so an alternative role was created for him as a ‘key runner’. This involved driving important components (and keys) to engineers working on various sites and was much less strenuous.
The employer gave the impression that this role would be long-term and at first the employee’s pay continued at the same rate as before. After some months however the employer decided that it could only continue to provide the role on a reduced salary (the work did not involve any actual engineering). A ten per cent pay cut was proposed and when the employee refused to accept this he was eventually dismissed. The Tribunal found that this amounted to – among other things – a failure to make reasonable adjustments.
A key issue on appeal was whether a failure to maintain the pay of an employee when he or she is transferred to alternative work can be a failure to make reasonable adjustments. The employer argued that the employer should be able to pay the employee the proper rate for the job actually done by the employee. However the Employment Appeal Tribunal held that there was nothing in principle to prevent a Tribunal from finding that the duty to make reasonable adjustments included a duty to maintain the pay of an employee even if he or she is transferred to what would otherwise be lower paid work. It has, after all, always been accepted that the duty to make reasonable adjustments may involve some cost to the employer. Ultimately, it came down to what it was reasonable in the circumstances to expect the employer to do. In this case the Tribunal had been entitled to find that the employer could reasonably be expected to have maintained the employee’s original salary.
This is one of those decisions that is much less earth-shattering than it appears at first glance. It is not saying that employers must maintain pay but that doing so can be a reasonable adjustment. Be prepared for employees to try to insist on this, though.
One of the greatest obstacles facing anyone claiming discrimination is that very few employers are prepared to state their prejudices openly – making direct evidence of discrimination very difficult to come by. The Equality Act attempts to redress the balance by switching the burden of proof onto the employer if the employee can put forward enough evidence to support the inference that discrimination may have occurred. This means that an employer will sometimes have to prove that it is innocent of discrimination – provided that there is enough evidence to suggest that it might be guilty.
A common issue is how much evidence is needed to switch the burden of proof in this way. In Fennel v Foot Anstey LLP Mr Fennell was a partner in a solicitors’ firm who argued that he was the victim of age discrimination when he was not offered a new partnership following a restructuring. There had been concerns expressed about his performance in the past, but he argued that what really held him back was the fact that he was over 45.
He pointed out that of the candidates for partnership, all but one of those who were under 45 had been made an offer. On the other hand, only one of those who was over 45 had been successful. The tribunal accepted that statistically the prospect of being offered a partnership diminished with the age of the candidate but went on to hold that this was not sufficient evidence to place the burden of proof on the employer. The issue was why Mr Fennell had not been offered a partnership, and he was in a different position from the other candidates in part because of the concerns expressed about his performance in the past. The tribunal accepted that the reason Mr Fennell was not offered the partnership was based on the firm’s concern about his ability to generate business.
Mr Fennell argued that the tribunal had made the mistake of evaluating the whole of the evidence and deciding what the reason for the employer’s decision was instead of considering whether there was enough evidence to place the burden of proof on the employer. The Employment Appeal Tribunal disagreed. The tribunal had simply decided that the statistical evidence was not enough to shift the burden of proof to the employer and it was entitled to reach that conclusion. The burden of proof could only shift if there was some direct evidence of discrimination – and the fact that older candidates were less likely to be offered a partnership was insufficient given the lack of any evidence that age was one of the factors taken into account by the employer.
Claims for indirect discrimination often involve a request for flexible working to allow the employee to balance work and family life. Statistically, women are overwhelmingly more likely to want to adjust their working hours in order to accommodate their caring responsibilities than men, so any refusal of a flexible working request opens up a potential indirect discrimination claim. In technical terms the employer is applying a ‘provision criterion or practice’, which places women at a particular disadvantage. What the tribunal has to decide is whether the employer’s refusal of the request is a ‘proportionate means of achieving a legitimate aim’. In many workplaces employers themselves see the benefit of flexible working arrangements. But there remain many roles where accommodating the needs of individual employees can be difficult.
In XC Trains v CD the employee was one of a very small number of female train drivers. She was also a single parent with two young children. The normal working pattern of a train driver can be very complicated and includes work both at the weekends and late into the evening. The employee sought on numerous occasions to agree a working pattern that avoided such unsocial hours and the employer was in principle willing to accommodate such requests. However in order to do so it had to obtain the agreement of the other train drivers as part of the local bargaining framework. The problem was that the other drivers would have had to work more unsocial hours as a result of the employee working less. No permanent agreement could be reached at the employee claimed indirect discrimination.
The tribunal upheld the claim. It noted that the overwhelming majority of train drivers were men and that the need to obtain the agreement of the predominantly male workforce to allow a female employee to work flexibly had the effect of maintaining that imbalance.
On appeal, the Employment Appeal Tribunal held that this was an irrelevant consideration. The tribunal had to balance the needs of the employer against the needs of the employee but seemed not to have done so. Instead it had given priority to the social policy objective of ending gender segregation. Further, it was legitimate for the employer not only to seek to run an effective railway service, but also to preserve good employee relations. The impact of flexible working request on other employees was a legitimate matter for the employer to take into account. The case was sent back to a fresh tribunal for reconsideration. This does raise some tricky employee relations questions, as one of the factors was the other (male) employees’ objections.
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