Appeal court upholds claim of (direct) discrimination, claimant was awarded £26,616 because she was perceived to have a disability. It serves as a reminder not to make judgements or assumptions.

The case of Chief Constable of Norfolk v Coffey earlier this year resulted in a key ruling by the appeal court as they upheld a claim of (direct) discrimination because the claimant (Cofey) was perceived to have a disability. The court confirmed that it is discriminatory to refuse employment because of a perception that a health condition will affect a person’s ability to work in future.

Lisa Coffey was a police officer in Wiltshire Constabulary and suffered from a degree of hearing loss and tinnitus which did not affect her ability to do her job and was not considered a disability under the Equality Act.

In 2013 she applied for a transfer to Norfolk Constabulary. She disclosed the hearing loss and the results of a functionality test that showed she was able to perform her existing role. However, the constabulary rejected her application because her hearing fell “just outside the standards for recruitment” published by the Home Office. The constabulary was concerned that the hearing loss would have a substantial impact on Coffey’s ability to perform day-to-day activities in future.

Coffey did not consider herself a disabled person so brought a claim of discrimination on the basis that the force had treated her less favourably because it perceived she had a disability. In 2016 her claim for direct disability discrimination was upheld by an employment tribunal. It found that Norfolk Constabulary had not followed Home Office advice to conduct an individual assessment of Coffey’s ability and had not acted on a recommendation from a medical adviser about the need for an at-work test.

The tribunal found that she had been unlawfully discriminated against on the grounds of “perceived” disability and was awarded £26,616.05 in compensation.

Norfolk Constabulary challenged the decision at the Employment Appeal Tribunal, which agreed with the previous judgment that the constabulary had been wrong to reject Coffey’s application for a transfer on the basis she would have been unable to perform her role In future.

The Court of Appeal upheld both decisions. In a judgment published in the summer of this year it said there was no evidence that front-line police officers needed to have particularly acute hearing. The court agreed that it was unlawful to deny Coffey a role at Norfolk Constabulary, as she had been able to perform her daily duties without problems in Wiltshire. The court rejected suggestions raised in evidence that front-line duties in Norfolk were somehow different to those in Wiltshire. It also found that Norfolk had failed to take into account the highly material Home Office standard and accompanying circular and guidance.

The court stated that whether or not an employer has directly discriminated against a person will not depend on whether it perceives that person to be disabled as a matter of law. It therefore does not depend on knowledge of disability discrimination law but on whether the employer perceived that person “to have an impairment with the features which are set out in the legislation”.
Coffey continues to work for Wiltshire Constabulary.

This case serves as a reminder to employers to be wary of making judgements or assumptions about workers, for example thinking that someone who has problems with depression or anxiety might not be up to the challenge of a stressful job. People who are unsuccessful in applications for jobs and promotions and might be unable to say with confidence that they are currently disabled, should still not suffer a detriment or less favourable treatment because an employer or prospective employer perceives that they are.

For further advice and support on this matter speak to a member of the Solve. team

It’s the season to be jolly!!

Employers hold a duty of care towards their employees throughout the employee’s employment and this extends to events such as the Christmas party. It’s important that certain factors are considered by employers, such as: –

  • Setting clear guidelines of the behaviour expected at the Christmas party, such as violence, unwanted conduct, discriminatory remarks and excessive alcohol consumption, will not be accepted.
  • Reminding all employees of the policies and procedures in place and the consequences of their actions e.g. disciplinary.
  • Limiting the amount of free alcohol, supplying enough food and providing non-alcoholic drinks can support in limiting the risk for employees becoming too merry. It’s important that employees who are under the age of 18 do not drink. Employers should also take into consideration those employees who do not drink alcohol or eat certain foods.
  • Ensuring that post party travel arrangements are taken into consideration to reduce the risk of employees on their journey home.
  • Asking employees not to post on social media, such posts could cause embarrassment or offence to others and if an employee’s photo appears on social media and they haven’t given their consent, could raise certain data protection issues.
  • Making employees aware that absence or lateness will not be tolerated the morning after the Christmas party and will be dealt with via the disciplinary policy. Furthermore, employers should be aware of employees who do turn up to work the next day drunk, especially if their job involves driving or operating machinery.

Christmas is both a Christian holiday as well as a state holiday, holding an event at Christmas is not likely to fall foul of the Employment Equality Regulations 2003, however, if the Christmas party is presented as a “boozy night out” this could potentially seclude employees whose faith could prevent them from attending such night out, which would be discriminatory. This also extends to female employees who may have childcare commitments as you could risk having a sex discrimination claim made against the company.

In the case of Nixon v Ross Coates Solicitors, an employee claimed constructive dismissal, sex and pregnancy discrimination and harassment after malicious gossip was spread about her pregnancy following the Christmas party. Nixon had been seen by employees kissing another employee and going into a hotel room with him. The HR manager had knowledge of the employee’s pregnancy and began gossiping with other employees as to whom the father was. The employee raised a formal grievance, however, this wasn’t dealt with accordingly and on appealing this case, the EAT held that the tribunal was wrong in not making findings of pregnancy related harassment and discrimination and also sex discrimination. Interestingly, the fact that the employee had put her sexual life into the public domain, and acted in a way which was bound to provoke gossip, did not assist the employer in relation to either liability.

This should be served as a reminder to all employers that precautions need to be taken both during and after the Christmas party. Employers should have both procedures and policies relating to bullying and harassment, disciplinary and grievance and also discrimination to ensure that they are in a better position to deal with these issues, if and when they arise.

If you would like advice on the Christmas Party or require your policies and procedures to be updated, please contact a member of the Solve.HR team.

IR35 tax legislation has been in force since 1999. The primary purpose of the IR35 legislation is to identify individuals whom are working on a self-employed or contractor arrangement who are in fact classified as a “disguised employee” working for the fee-payer/employer. Therefore the IR35 regulations identify instances of this nature whereby there has been an avoidance of Tax and National Insurance payments by fee-payers/employers and raises the question of employee employment rights. Since 1999, within the private sector it has been the responsibility of the self-employed worker/contractor to confirm the status of their worker arrangement if challenged by HMRC, whereas, within the public sector it has been the responsibility of the “fee-payer”.

From 6th April 2020, the legislation extends the responsibility to the fee-payer not only in the public sector but also to businesses of a certain size, within the private sector. This is a substantial shift of responsibility, which is likely to lead to an increase in awareness, exposure and multiple high profile case studies.

It will be the responsibility of the fee-payer to determine the status of the worker/contractor and to confirm this status in writing between both parties.

HMRC can instigate investigations into both fee-payers and self-employed/contractors at any time.
In addition, a claim could be raised in an employment tribunal for breach to statutory rights if a claimant was to infer they should be considered as a worker or employee. If a claimant was successful in being ruled to be an employee they could in turn raise claims in an Employment Tribunal for; unfair dismissal or breach of statutory rights including the right to the minimum wage, holiday, sickness and family leave and pay and discrimination.

There may be a fear from the fee-payer to suggest that employing all workers/contractors as employees may reduce the risk of failing IR35 Compliance. This is not the intention of the regulations. Employing an employee comes with Employer Tax and National Insurance payment responsibilities along with Employee Rights to all other Statutory and Company benefits provisions along with the accrual of Employment Rights; therefore the genuine contractor working arrangement could continue to be better suited for the fee-payer.

There are key indicators to assist with determining if the fee-payer and worker are likely to be operating within or outside of the IR35 regulations. Solve. can support you with determining these differences and can advise you on the requirements of the “fee-payer” in order to support with status determination. If you operate with service agreements for services provided, such as consultants, please do get in touch.

To find out more about IR35 Tax Regulations please speak to a member of the Solve. Team.

In June the Court of Appeal ruled that voluntary overtime payments must also be included in holiday pay calculations. It agreed with the Employment Appeals Tribunal’s ruling in the Flowers and others v East of England Ambulance Service NHS Trust case where ambulance workers claimed that two types of overtime should be included in holiday pay calculations; “non-guaranteed” overtime taken when their shifts overrun and any voluntary shifts they choose to take in advance.

The original ruling at Employment Tribunal held that voluntary overtime should not factor into holiday pay calculations, however the ambulance staff successfully appealed this ruling which then resulted in the East of England Ambulance Service NHS Trust taking the case to the Court of Appeal but the judgement ruled in agreement that voluntary overtime should be included in holiday pay if there are regular overtime payments.

When calculating holiday pay it’s important to remember that the following payments must be included in at least 4 weeks of paid holiday:

• Regular overtime payments (both voluntary and compulsory)
• Contractual commission
• KPI bonus payments

This is to ensure that employees’ salaries are not unduly affected when they take holidays and employees are not discouraged from taking their European entitlement of 4 weeks’ annual leave, in other words they should receive the same amount of money as if they had attended for work. This ruling has been in place for some time now, however many employers have not yet implemented it so the government plans to publicise this in the coming year as part of the Good Work Plan so that employees are more aware of their rights.

As part of the Government’s Good Work Plan, recommendations were made to extend the reference period for determining average pay in relation to statutory holiday from 12 weeks to 52 weeks. This is being brought into force by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 and will apply from 6th April 2020.

A consequence of this will mean that contracts of employment templates will have to be updated to reflect the changes to holiday pay calculation.

To find out more about holiday pay, how to calculate it and ensure that your contract templates are compliant please speak to a member of the Solve. team

Last month the government unveiled plans for new legislation that will mean that pregnant women and parents returning to work will receive greater protection from redundancy.

The government announced it would begin consulting on extending legal protection against redundancy for pregnant women for six months after they return to work.

The 10-week consultation recommends maternity and parental leave (MAPLE) regulations be extended to cover a six-month period after a new mother returns to work. It could potentially also be applied to others, including men, who return from adoption leave or shared parental leave.

Under current regulations, if redundancies are being made, employers have an obligation to offer those on maternity or shared parental leave a “suitable alternative vacancy” where one is available, giving these employees priority over others who are also at risk of redundancy. However, this provision ends when an individual returns to work.

The consultation cited research commissioned by the Department for Business, Energy and Industrial Strategy (BEIS) that found one in nine (11 per cent) women said they had been fired or made redundant when they returned to work after having a child, or were treated so badly they felt forced out of their job.

The BEIS study also estimated 54,000 women a year may lose their jobs due to pregnancy or maternity.
Separate research published last year found fewer than one in five women feel confident returning to work after maternity leave. The survey also found more than a third (37 per cent) felt so isolated they considered resigning.

The government also committed to exploring evidence for changing employment tribunal time limits for claims relating to discrimination, harassment and victimisation, “including on the grounds of pregnancy and maternity”.

The government said tribunals could already allow the three-month time limit to be extended in discrimination cases if it is considered this “just and equitable” given the circumstances of the case. It hoped the consultation would build on previous work to gather data on the success rate of “out of time” tribunal claims for pregnancy and maternity discrimination.

The consultation on extending redundancy protection for women and new parents will end on 5 April.

Family-friendly regulations and policies are designed help foster inclusive and productive work cultures. If you would like review your existing family friendly policies and procedures speak to us at Solve.

New amendments to the 1996 Employment Rights Act will come into force from 6 April 2019, increasing employer’s responsibilities regarding the payslips they produce. It is important to understand these changes, firstly because employers will be required to provide greater detail within their payslips. In addition to this, the legislation also requires employers to send payslips not only to employees, but to all those classed as ‘worker’. To help you stay compliant, the team at Solve HR have summarised the upcoming payslip responsibilities below.

Inclusions
The following details will be required in every payslip from 6 April 2019;

1. Gross salary or wages
2. Net salary or wages payable
3. Where there are deductions, specify the amount and what it relates to
4. Where it is paid in parts, the amount and payment method for each part
5. If any part varies due to time worked, specify both rate of pay and total number hours worked. This can be either as a single aggregate figure, or separately for each rate of pay or type of work

The reasoning behind the increase in detail demanded of payslips is to increase transparency around what is being paid and why. By helping employees better understand their pay, it is hoped that this will ensure obligations around National Minimum Wage, Holiday Pay and Sick Pay are more likely to be honoured. It is anticipated that some organisations may find they need to introduce new software or update their existing payroll processes in order to meet the new requirements. If your business would benefit from further guidance in this area, the Solve HR team can provide you with expert support.

‘Worker’ Status
Even if someone isn’t classified as an ‘employee’, they may legally fall into the category of ‘worker’, and as such be entitled to employment rights around National Minimum Wage, paid holiday and sick leave. With the emergence of the so-called gig economy, it is becoming increasing difficult to determine the status of their workforce. This is being reflected in Employment Tribunal cases, where we are increasingly seeing instances of those who were originally defined as ‘self-employed’ winning the right to be treated as a worker, as can be seen in high-profile cases such as Uber. Many employers are finding the boundaries are blurred between an employee, a worker and a self-employed contractor, and by not understanding the distinctions, running the risk that they are not fulfilling their legal obligations.

If you find that you are in any doubt about the status of your workforce, or you have any questions regarding the new payslips legislation, you can contact Solve HR for advice at mail@solvehr.co.uk.