in-depth

Technical update - December 2018

Christopher Davies

Can benefitting be unfavourable?

Issue 

It is unlawful to treat an employee unfavourably because of something arising as a consequence of disability unless the treatment can be objectively justified. If a pension scheme provides disabled employees with financial benefits could the way in which the amount is calculated be ‘unfavourable’ treatment?  This was the issue that had to be considered by the Supreme Court in the case of Williams v Trustees of Swansea University Pension and Assurance Scheme and another.

Facts

After working full time for ten years Mr Williams had to substantially reduce his hours due to the impact of Tourette’s syndrome on his ability to carry out his duties. At the age of 38, he had to take early retirement on the grounds of ill health. Despite his age under the University’s pension scheme he qualified for a full final salary pension. However, this was based on his reduced hours. Mr Williams claimed that this was unfavourable treatment as the reduction in hours had been disability-related.  

Decision 

The initial Employment Tribunal decision that his claim succeeded as his pension would have been higher “had his disability not caused him to work part-time'. However, on appeal, this was overturned. There was nothing intrinsically ‘unfavourable’ or disadvantageous about the award to him of an early pension. Mr Williams was only entitled to a pension at all because of his disability - had he been able to work full time, he would not have had an immediate right to a pension at all. 

Action

The decision provides some reassurance for employers in respect of the provision of benefits that are available to disabled employees. The calculation of the benefits under the scheme should not be the subject of claims if only disabled employees are entitled. Only where benefits schemes are wider and are open to all will particular care need to be taken that any potential disadvantage to a disabled employee in the calculation of the benefit can be justified. 
 

Theft or forgetting to pay

Issue

Taking disciplinary action against an employee due to conduct resulting from a disability could lead to a claim that this amounts to unlawful discrimination. However, some conditions are excluded from disability discrimination protection including the tendency to steal. In the case of Wood v Durham County Council, the issue was whether the employee’s conduct fell within this exclusion or whether amnesia and forgetfulness to pay could still qualify for protection as a disability. 

Facts

Mr Wood suffered with PTSD and associative amnesia. He had been arrested in Boots for filling his shopping bag with items and leaving without paying. When interviewed he had admitted taking the items but lied about his job which required security vetting. He also denied that anything had happened when questioned by his line manager. Following a police report, his security clearance was not approved and disciplinary proceedings led to his dismissal on the grounds of criminal conduct.

Decision

His claim that dismissal amounted to unlawful disability discrimination was rejected. Whilst it was accepted that he had PTSD and associative amnesia which caused him to suffer forgetfulness it was held that he had been dismissed for theft and that this was excluded from protection. It was considered that the employee’s conduct following the incident showed that there had been reasonable grounds for the finding that there had been dishonest conduct. 

Action

Particular care is required where it is known that an employee is disabled. Even if unaware that the conduct was a consequence of the disability there will be a risk that the employer will be found liable of discrimination. This judgment is useful as there has been little in the way of guidance on what is meant by a ‘tendency to steal’. It shows that it is possible that a one-off incident will be enough for the behaviour to amount to a ‘tendency’ rather than having to show there has been a course of conduct. 

Holiday accrual and pay again

Issue

Holidays continue to accrue under the EU Working Time Directive during sick leave or forms of family-friendly leave. However, do holidays continue to accrue during periods when the employee is not required to work? This was the issue raised before the European Court of Justice (ECJ) in the German case of Torsten Hein v Albert Holzkamm GmbH & Co which also provided what could prove to be important guidance on the extent that overtime payments should be taken into account.

Facts

In the German construction industry collective bargaining agreement state that workers are entitled to 30 days of annual leave. Due to short-time working, Mr Hein had only been in work for 26 weeks of the year. When Mr Hein took his leave the employer reduced his pay to reflect the fact that he had not been in work for this period. Mr Hein claimed that in failing to pay him normal pay the employer had breached the Directive. The German courts referred the claim to the ECJ.

Decision

It was held that the right to accrue four weeks paid leave under the Directive applied only where there was actual work. As Mr Hein had not worked for 26 weeks of the year his entitlement to paid leave under the Directive would be limited to two rather than four weeks. However, during those two weeks, he would need to be paid his normal pay. That should include overtime pay but only insofar as the contract required him to work overtime on a broadly regular and predictable basis.

Action

This indicates that leave entitlement under the Working Time Regulations which implement the EU Directive will not need to accrue during periods when the employee is not required to work for example when taking a sabbatical. More controversially though the suggestion that overtime payments should only be included in ‘normal pay’ calculations where it is a contractual requirement to work it might now cast doubt on whether voluntary overtime payments should be included. 

Uber taxi driver status

Issue

The employment status of those working in the gig economy has again been before the courts in Uber B.V. and others v Aslam and others.  The now long-running dispute between Uber and a group of its taxi drivers moved up to the Court of Appeal. The most important question again was whether the ‘self-employment agreements’ the taxi drivers signed with Uber could be set aside and an employment relationship implied from the working arrangements.

Facts

Mr Aslam and other taxi drivers had entered into contracts with Uber to use their app. The agreements they signed clearly stated they were self-employed. The arrangement was that they were given a zone in which they could log into the app if they wanted to accept jobs. They could decide not to accept the offer of jobs but if they did this too often they would lose access to the app. Their claims were for national minimum wage and holiday pay on the grounds that they were ‘workers’.

Decision

The majority of the Court of Appeal agreed with the lower courts that despite the labels used the reality was the drivers were ‘workers’ employed by Uber rather than running their own businesses. Their claims for national minimum wage and paid holiday succeeded. To calculate the amount due the majority found that the drivers were to be regarded as working during any period when they were within their ‘zone’; had the Uber app switched on and were ready and willing to accept trips.

Action

Uber lost again but this time at least it succeeded in persuading one of the Judges that there was no inconsistency between the written terms and the working arrangements. The case now looks certain to proceed to the Supreme Court. However, this decision again highlights that those engaging a ‘self-employed’ workforce need to be aware that the contractual labels used are just one factor to take into account when assessing employment status and individual statutory rights. 


Dismissed – but did the employee need to go?

Issue

An employee may be dismissed fairly if guilty of gross misconduct. However, if the conduct is as a consequence of a disability it will need to be justified as it could still amount to unlawful discrimination. In Asda Stores Limited v Raymond the questions were whether urinating in the employer's yard could be as a consequence of diabetes? If so could the dismissal of the employee still be justified on the grounds that it was conduct that breached health and safety rules? 

Facts

Mr Raymond had just parked his lorry by the loading bay when he was “caught short and desperate” and so urinated in the yard. A security guard reported the incident. The CCTV footage was examined and disciplinary proceedings instigated into his breach of “regulations” and “health and safety policies”. At the hearing, it was considered that this was criminal conduct and that he should be summarily dismissed despite his explanation, supported by his GP that it was down to his diabetes.

Decision

It was held that the employer had failed to carry out a reasonable investigation into what happened and why. Plus the allegations of misconduct had not been put to Mr Raymond in a sufficiently precise manner. No Regulations or Health and Safety policy had been identified and no criminal act had been put to him. The dismissal was therefore unfair. It was also held that the medical evidence showed that there was a connection with his disability and that he had been subject to discrimination. 

Action

The decision highlights key points in the disciplinary process regarding the accuracy of allegations and the requirement for a reasonable investigation whilst evidence from CCTV is valuable it may not always be sufficient. Equally, it also shows the importance of looking into medical evidence where there might be a link between the conduct in question and the employee’s disability and even if the connection is not accepted consider justification - just to be on the safe side.
 

Contact our expert

Christopher Davies

Christopher Davies

Professional Support Lawyer

Christopher has specialised in employment law for 20 years. He is responsible for ensuring that our employment lawyers are kept up to date with legal developments and changes to civil procedure.