Employment update | Top three in 3 minutes | 21 November 2019

1. Disability discrimination | Sickness triggering disciplinary action

In a helpful reminder, the Employment Appeal Tribunal (EAT) has confirmed that the duty to make reasonable adjustments for a disabled employee, who is otherwise placed at a disadvantage, applies to the triggers sometimes found in absence management policies enabling disciplinary or similar action to be taken. But what happens when an adjustment is discontinued or replaced?

An employee had a higher than average sickness absence rate due to her disability. Reasonable adjustments were made to the absence management policy, essentially extending the periods before disciplinary action was triggered. Relying on this extended trigger, the employee avoided disciplinary action due to her sickness absence for four years, at which point her employer removed the adjustment so that the standard triggers again applied. It instead introduced other changes including reducing her working hours. Despite these changes to her workload and hours, the employee's subsequent absences triggered disciplinary action under the sickness absence procedure and she was ultimately dismissed. The EAT found the failure to continue to extend the trigger was a failure to make a reasonable adjustment – the new measures introduced had not effectively removed the disadvantage that the employee faced. 

Action

Once a reasonable adjustment is introduced, an employer is not under an obligation to continue that adjustment indefinitely. However, it must ensure that any change in reasonable adjustments is carefully considered and that any change which is introduced is as effective in removing the disadvantage faced by the employee as the adjustment it is replacing. Navigating sickness issues can be tricky; we are happy to discuss the training we can provide in this area, looking at the difficult questions and practical solutions for employers. 

2. Are your staff vulnerable to harassment and bullying from third parties? What should you be doing?

Staff in many sectors work closely with the public and other third parties in carrying out their duties. The media has again highlighted the treatment that these individuals may be subjected to. Usdaw's annual Freedom From Fear survey reported that retail shop staff are verbally abused, threatened or assaulted more than 21 times per year on average; the fact that harassment and bullying remain very live issues is emphasised by campaigns such as #metoo, #choosekindness and #timesupnow.

Employers have a duty of care to employees, including preventing harassment and bullying, as well as responsibilities under health and safety legislation. However, the EAT has recently confirmed that where there is an act of third party harassment (in other words, an individual from outside the organisation subjects a member of staff to unwanted conduct violating their dignity) which is motivated by a protected characteristic, such as sex, sexual orientation or race, the Equality Act 2010 will not impose strict liability for discriminatory conduct on the employer. An employer will only be liable where its own inaction in enabling the harassment to take place was itself discriminatory. The EAT found that an employer was not liable for the racial harassment of a black nurse by a patient, as although the employer had failed to keep records of incidents of racial harassment which may have enabled it to identify that there was an issue that needed to be dealt with, that inaction by the employer was not itself related to race.

Statutory provisions providing some protection against sexual harassment by third parties were repealed in October 2013. However, with increasing pressure to provide more protection, views were sought in a recent government consultation on whether some form of legislation to cover third party harassment should be re-introduced. With a general election on 12 December, employers will need to wait and see how any newly elected government takes this forward. In the meantime, it remains open for the EAT's decision to be appealed to the Court of Appeal (permission to appeal directly to the Supreme Court was refused). 

Action

Aside from the clear business advantages in fostering a supportive workplace culture and keeping staff turnover low, failure to manage third party behaviours leaves an employer at risk of discrimination and constructive unfair dismissal claims, as well as potential liability for personal injury. Employers should ensure that they have appropriate policies and procedures in place for dealing with situations where individuals from outside the organisation are being offensive or abusive to staff and that managers understand the business' obligations to their employees. Employers should also ensure that appropriate records are maintained to enable them to identify and deal effectively with any specific pinch-points. 

3. Holiday pay: Only 'WTD' leave must be carried over for sick employees

The UK's Working Time Regulations 1998 (WTR) provide workers with a minimum of 28 days holiday a year. 20 days of this minimum entitlement is derived from the EU's Working Time Directive (WTD). Under the WTR, the 20 days leave derived from the WTD must be taken in the current holiday year; the WTR provides a limited potential right of carry-over in respect of the additional eight days 'UK' leave and an employer may set its own carry-over rules for any leave in excess of the 28 days.

The Court of Justice of the European Union (CJEU) has now confirmed that where an employee is off on long-term sick and unable to take their holiday, the 20 days holiday derived from the WTD must be carried over to a subsequent holiday year. However, any additional entitlement – such as the eight WTR days in the UK and any additional holiday provided by the employment contract – will only be required to be carried over if that is required under the relevant domestic law provisions or employee's contractual terms. In the absence of any specific domestic provisions, from the CJEU's perspective, there is no requirement for this holiday to also be carried over simply because of the employee's sickness. 

Action

This confirms the current UK case law position. It has also been accepted that there is no right to carry holiday over into subsequent years indefinitely, with the UK EAT holding that the maximum period of carry-over is 18 months from the end of the leave year in which the annual leave arises. This is reflected in the ACAS guidance on holiday and sick pay.

Our guide on holiday pay highlights the latest developments and key issues for employers. Please contact us or your usual OC contact if you would like to receive a copy. Employers should also use the April 2020 changes to the 's1 Statement' and holiday reference period (more details here) as an opportunity to audit terms and conditions on holiday and related policies. 

Did you miss last week's top three? Read the latest developments and please do contact us or your usual OC Contact for any further details.