Work It: Employment Update - May 2017

In this month's edition:

17 May 2017
"Folded newspaper.

Dismissals for long-term sickness absence: how long must employers wait?

Dealing with employees absent due to long-term sickness can be extremely challenging. Managers are often anxious to resolve the situation swiftly, but the risk of the employee claiming unfair dismissal and/or disability discrimination means that the employer must seek medical evidence and consider possible reasonable adjustments to enable the employee to return. This may be a slow process and can be made even more difficult by an uncooperative employee.

A recent case considered by the Court of Appeal highlighted these difficulties. The employee had been on sick leave for a year and had responded in a vague and unsatisfactory way to the employer's requests for information about when she would be fit to return. At an appeal hearing, after she had been dismissed, she produced a Fit Note from her GP stating that she was fit to return to work and a letter from a psychologist stating that she would recover fully after treatment. The appeal panel rejected her appeal, stating that this last-minute evidence was unclear and contradictory.

The court found that the dismissal was unfair and amounted to disability discrimination, ruling that the employer should have investigated the medical evidence presented by the employee at the appeal hearing further, rather than rejecting the appeal. It stated that an employer must do this even when medical evidence appears to be dubious or contradictory or has been presented at the last minute. An employer is not expected to wait indefinitely for an employee to be fit to return, but in this case the employer should have taken extra time to investigate the new medical evidence.

The best approach is to deal with sickness absence promptly from the start, rather than allowing a situation to drag unnecessarily and then, in frustration, rushing through a formal process later on. Obtaining sufficient medical evidence to justify a dismissal is essential to defend claims for unfair dismissal and disability discrimination in long-term absence cases.

Indirect discrimination: what do claimants need to prove?

The Supreme Court has confirmed that a claimant in an indirect discrimination claim does not need to show why an employer's policy, criterion or practice (PCP) puts a particular group (e.g. female employees) at a disadvantage. The case puts the onus firmly on employers to show that their workplace policies are objectively justified.

The case arose from the Home Office's practice of requiring candidates for promotion to pass an exam. Analysis showed that older candidates and those from ethnic minorities had lower pass rates (and so were unable to achieve promotion), although it had not been established why the pass rates were lower. The claimant, who failed the exam, argued that the requirement was indirect race discrimination. The Home Office argued that the claimant could only succeed in his claim if he could prove what the reason was for the lower pass rate among ethnic minority candidates, and show that it was linked in some way to their race.

The Supreme Court confirmed that this was not necessary: all a claimant in an indirect discrimination claim needs to show is that i) a group with a particular protected characteristic (shared with the claimant) is placed at a disadvantage by the employer's PCP, ii) the claimant was placed at that disadvantage and iii) there is a causal link between the PCP and the disadvantage suffered. If a claimant can establish these three points, the employer must show that the PCP is justified in order to successfully defend the claim.

As this case highlights, businesses should keep under review whether apparently neutral workplace policies have a discriminatory impact in practice. Diversity monitoring may help this review process so long as it is undertaken in a way which respects employees' privacy. If there is evidence of a discriminatory impact, the business will need to consider carefully whether the policies can be justified and whether modifications can be made to reduce or eliminate the discriminatory effect.

Dress codes, religion and discrimination: can employers ban religious and political symbols at work?

With debates over immigration, integration and national identity in the UK and Europe increasingly fraught, it was not surprising that a European Court of Justice case concerning headscarves in the workplace resulted in some overblown newspaper headlines. However, UK employers should not assume that the case gives them free rein to ban religious symbols and clothing at work.

The case involved two employees (working for different companies) who had been dismissed after wearing Islamic headscarves at work. In the first, the business had an internal rule prohibiting employees from wearing visible symbols of political, philosophical or religious beliefs and the employee was dismissed for failing to comply. In the second, a customer had complained about the employee wearing her headscarf when visiting the customer's premises and the employee was dismissed for refusing to agree not to wear the headscarf on future visits.

In the first case, the court stated that, where an employer has a general ban on religious and political symbols and does not differentiate between beliefs, disciplinary action taken as a result of the ban will be indirect (rather than direct) discrimination and so the employer can defend a discrimination claim if it can justify its actions. This requires establishing that the ban (and action taken as a result of it) had a legitimate aim and was proportionate.

The court stated that imposing such a ban in order to achieve political and religious neutrality in the workplace was a legitimate aim, but that the business should consider restricting it to customer-facing employees and should consider redeploying employees who refuse to comply on religious grounds into other roles. However, the court also stated, in relation to the second case, that employers without such a general ban in place cannot discriminate against staff wearing religious clothing simply because of a customer's request.

There are several reasons for UK employers to be cautious about relying on this case and imposing such bans:

  • The ECJ did not define which employees are to be regarded as "customer-facing"
  • The ECJ emphasised that a ban on political and religious symbols must be applied consistently, without differentiating between beliefs. In practice, employers often tolerate some discreet religious or political symbols, which would undermine their ability to justify action against employees wearing more obvious religious clothing or symbols
  • It is debatable whether "neutrality" should be seen as a legitimate aim if it is based on an assumption that customers are uncomfortable with religious symbols or dress, since it is accepted that customer prejudices do not justify discrimination by employers
  • There are conflicting cases from the European Court of Human Rights indicating that greater weight must be given to the employee's right to manifest their religious belief outwardly. UK courts and Employment Tribunals are required to take these cases into account as well as the ECJ cases.

Workplace dress codes can be highly contentious and discrimination claims based on them can lead to reputational damage as well as legal risks. Businesses looking to introduce new dress codes or appearance policies may well wish to take advice before doing so, to minimise the risks.

On the horizon…

General election: A general election has been called for 8 June 2017. Employment and HR issues beginning to feature in the main parties' manifestos include proposals in respect of the minimum wage, zero hours contracts, corporate governance, the gig economy, trade unions, public sector pay, leave to care for relatives and the maintenance of EU employment rights.

Employment status and workers' rights: Matthew Taylor's Government-commissioned review into employment status is due to report its recommendations in June 2017.

Illegal working: New rules excluding for one year the NICs employment allowance for employers found to have hired illegal workers came into force on 6 April 2017.

Gender pay gap: Regulations requiring certain employers to report data about their gender pay gap came into force on 6 April 2017. At the same time, ACAS has released its final guidance about complying with the regulations. If you would like a copy of our detailed guidance please contact Jane Amphlett.

Howard Kennedy Employment news and events

  • We are delighted to announce the arrival of Samantha Murray-Hinde as an Employment Partner and Employment Solicitor Chris Warwick Evans. Sam has an impressive track record in the transport and sport sectors and in heavily unionised industries (find out more in Personnel Today).
  • Alex Mizzi in Tech City News: Should robots be given employment law rights? (Tech City News)
  • Our recent HR Directors' Forum on 11 May 2017, featured guest speaker Carrie Birmingham discussing HR's role in crisis management. For more information on this and future forums, please contact Jane Amphlett.
  • Our latest HR Breakfast Forum took place on 17 May 2017 (Tech, Media and Creative sectors) and our next HR breakfast will be held on 8 June 2017 (Retail, Hotels and Leisure sectors).For more information, please contact Jane Amphlett.


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