February Blog - 04/02/2019

Don't delay in making reasonable adjustments for disability

If you employ any workers who have a disability, you have a legal responsibility to make 'reasonable adjustments' to ensure they're not significantly disadvantaged. But how certain should you be that someone's disabled before making reasonable adjustments? The Equality Act defines disability as a long-term condition – i.e. at least a year. So can you wait until they've had the condition for a year?

No – if you have reason to think the condition may last a year, you should try to make reasonable adjustments sooner rather than later, as confirmed by a recent case.

In this case, the claimant suffered from post-traumatic stress disorder (PTSD). It was caused by abuse during childhood, but triggered by bullying at work and by her aunt's death. In February 2012 the claimant: (1) went off sick; (2) provided the appropriate form saying she was not fit for work; and (3) raised a grievance. In July she told the chief executive about her PTSD. In November they got an occupational health report, which said that her symptoms may have begun in September 2011.

The employer, a school, argued that it didn't have sufficient knowledge of the condition until November 2012. It made 2 arguments:

  1. it didn't have knowledge until the occupational health report;
  2. in July it didn't know that the PTSD might last for a year.

The Employment Appeal Tribunal (EAT) disagreed for these reasons:

  1. Since July 2012 the school had had both actual and 'constructive' knowledge of her disability. Actual, because she'd told them. 'Constructive' because by July she'd been off work with reactive depression for 4 months and they should have made further enquiries that would have revealed her disability.
  2. The school knew that her PTSD went back to childhood, therefore it was long-term.
  3. In any event, the school should have concluded that the condition was likelyto last until at least September – the occupational health report that they should have obtained would probably have concluded that the claimant was unlikely to recover until her workplace issues had been resolved, which was likely to be at least September 2012.

Accordingly, the school should already have made reasonable adjustments to assist her in returning to work.

What this means for you

If you have reason to think that an employee has an impairment with a significant effect on everyday activities and that's likely to last a year, you should try to make adjustments to assist them. In the first instance, that means you should make an occupational health report so that you have the relevant facts – but it's for the business to decide on what's reasonable. Adjustments might include physical alterations to the workplace or equipment, or changing the way in which someone can do their job. It'll depend on the circumstances.

How we can help

Several sections of our Employee handbook deal with reasonable adjustments, including the Capability procedure and policy, which says that reasonable adjustments should be made if you're considering unsatisfactory performance. Other policies include those on Equal opportunities, Recruitment and Stress at work.

 

February Blog - 11/02/2019

Take care when drafting restrictive covenants

An employee leaves for a competitor and, you believe, poaches some of your customers. You included post-termination restrictions in the employment agreement, saying that for 6 months he can't compete with you or solicit your customers. But are they enforceable in court?

And how can you meaningfully enforce them in the meantime if the hearing is 6 months away, by which time he may have poached half of your customers?

In a recent judgment, while awaiting the trial the employer obtained an 'interim injunction' in relation to a non-solicit clause: that means it will be enforced while the parties await the trial. However, they weren't successful in relation to the non-compete restriction as it was too broad.

The general rule is that restricting an employee's activities after employment is unenforceable unless:

  • the business seeks to protect legitimate proprietary interests, such as confidential information or business connections; and
  • the restrictions are no more restrictive than necessary to protect those interests – this will depend on the clauses' wording and employee's role at the time they're agreed.

You may be able to enforce some of the restrictions and not others – as long they're distinct, the unfair restrictions will be 'severed' from the fair ones. The restrictions don't necessarily need to be in distinct clauses, but it helps.

In this recent case, an employee resigned and started working for a competitor – the business says it then experienced a sharp drop in sales. They brought a court claim and the trial's scheduled for March 2019. They also applied for interim injunctions, which the courts considered last December at an interim hearing: i.e. a hearing that's not as complete as the final trial will be.

But how can a judge decide on injunctions without a full trial? They took a practical approach:

  1. The judge had to look ahead to the trial and decide what the likely outcome will be, even though there's a risk of getting that wrong.
  2. The judge thought that, at trial, a court is likely to find that preventing the employee from soliciting customers is fair; on the other hand, the non-compete clause, which prevents him from working for the competitor, was too broad and unlikely to be upheld.
  3. The judge then had to consider the 'balance of convenience' (i.e. weighing how not granting the injunctions could damage the business, against how granting them could damage the employee):
    • Preventing the employee from working for the competitor would have caused loss of salary and possible loss of visa. And the judge wasn't convinced that the drop in sales was due to the employment with the competitor. So although the trial may produce a different result, making that injunction would have been unfair.
    • On the other hand, if the non-solicit injunction wasn't granted there was a serious risk that the goodwill developed for the business would have been used for the benefit of the competitor, which would also have been unfair.

What this means for you

Consider using restrictive covenants, but make sure they're fair and not too broad. We'd also suggest you split the different restrictions into different clauses or sub-clauses, so that the unfair ones can be severed.

How we can help

Our Partnership agreement and Employment agreement (and its variations, such as Fixed term employment agreement) include the option of using restrictive covenants.

February Blog - 18/02/2019

Discrimination claims: how comparable do situations have to be?

For most types of direct discrimination claims, an employee must compare their maltreatment to a colleague in a similar situation – if they just complain of bad treatment, it won't be discrimination. But how similar do their situations have to be? If they complain that they were dismissed and a colleague of a different race in a similar situation wasn't, could you defend it based on the fact that different people made the decisions so there's no valid comparison?

The Employment Appeal Tribunal has confirmed that this, by itself, wouldn't be a good defence.

This case concerned a Prison Custody Officer. There was an altercation with one of the prisoners, and the prisoner threatened the officer. Other officers were called in for support. The prisoner was brought under control, and while held down on the floor the officer hit him in the face 3 times. The officer was dismissed for that unnecessary violence.

The officer appealed his dismissal internally (i.e. within the business that ran the prison) – an appeal must always be offered in order for a dismissal to be fair. His principal argument was that violence was often used that way, and that had a white officer acted like that in a similar situation he wouldn't have been dismissed.

The officer presented evidence about several white officers who weren't dismissed after acting as he did. The tribunal considered those cases, and decided that their situations were different, so they weren't valid comparators. The tribunal also found that, had there been a valid comparator, i.e. a white custody officer who hit a prisoner in that manner, they would also have been dismissed - in other words, a 'hypothetical comparator' would have been treated the same way. The officer's claim therefore failed.

However, the tribunal didn't agree with the part of the business's argument that said some of the comparators were invalid because the people deciding on disciplinary action were different.

An employer can't defeat a discrimination claim by saying a different person made the discriminatory decision. If they could, it would make one of the principal points about discrimination law meaningless – an employer can be vicariously liable for the discriminatory acts of its employees.

What this means for you

If an employee discriminates in the course of their employment, the employer will also be found vicariously liable and will normally have to pay the compensation. It's therefore essential for a business to ensure all its decision makers make their decisions fairly and in a non-discriminatory manner.

How we can help

To help avoid discrimination, our Employee handbook includes sections on Equal opportunities and Grievance and disciplinary procedures. We also have a series of disciplinary letters to take you through the process.