UK Employment Coffee Break | New Vento bands, EAT rules on trial periods as reasonable adjustments, and immigration update

New Vento bands

Together with the other changes coming into force this April, new Presidential Guidance on Employment Tribunal awards for injury to feelings in line with the Vento bands has been published. For claims presented on or after 6 April 2024, the Vento bands are as follows:

•    A lower band of £1,200 to £11,700 for less serious cases;
•    A middle band of £11,700 to £35,200 for case that do not merit an award in the upper band; and
•    An upper band of £35,200 to £58,700 for the most serious cases. The most exceptional cases are capable of exceeding £58,700.

These new bands will need to be considered when assessing the financial liabilities associated with a discrimination claim where an award for injury to feelings is sought. 
 

Trial periods and the statutory duty to make reasonable adjustments 

The EAT has handed down an important decision looking at whether or not it is a reasonable adjustment, under the Equality Act 2010, to give an employee a trial period in a new role where their disability places them at a substantial disadvantage, such that they cannot continue in their present job and are at risk of imminent dismissal. 

Here the claimant was diagnosed with multiple sclerosis. While various adjustments and modifications to his working arrangements and terms and conditions were made with a view to enabling him to continue in his current role, it became clear that there was no viable way he could continue in his current role and possibilities for him moving into a different role began to be explored. 

As part of this process, the claimant applied for the role of service administrator but was unsuccessful, in part due to his under-performance in some written assessments. Ultimately, a final capability meeting concluded that there were no adjustments that could be made that would enable him to remain in his existing role and, as he had been unsuccessful in an application for a service administrator role, there was no other suitable alternative role for him. He was dismissed and his appeal was unsuccessful.

The claimant brought claims in the Employment Tribunal, including that the employer had failed to comply with its statutory duty of reasonable adjustment. The tribunal upheld his claim finding that although he had been unsuccessful in his application for the service administrator role, on the facts it would have been a reasonable adjustment to transfer him into that role for a trial period. 

The Employment Appeal Tribunal (EAT) agreed, noting as follows:

• The duty on an employer is to take such steps as it is reasonable to have to take "to avoid" the substantial disadvantage at which a provision, criterion of practice puts the disabled employee. The statutory wording "does not attempt to restrict or sub-categorise what form such steps might take" in a given case. 
• There is no requirement that the proposed step must be guaranteed to work. The Court of Appeal has previously confirmed that any change "which would or might remove the substantial disadvantaged caused by the PCP is in principle capable of amounting to a relevant step. The only question is whether it is reasonable for it to be taken".
• This is not a case where the proposed adjustment does not involve any change to an employee's substantive terms, working conditions or arrangements, such as simply consulting with the employee or seeking a medical report. Putting an employee into a new role effects a substantial change in what they are doing, albeit that it remains to be seen how it will work out and how long it will last. 
• Where the substantial disadvantage is that the claimant is at almost certain risk of dismissal (as here), it is then open to the tribunal to consider whether, in the given case, the proposed trial period in another particular role would remove the risk of dismissal, or had sufficient prospects of averting dismissal such that it was reasonable for the employer to be expected to take that step. 

The EAT concluded by finding that in the present case, putting the claimant into the service administrator role on a trial basis would have not merely involved postponing the date of his inevitable dismissal; "it would not be just a short stay of execution, but held out the prospect of the axe being lifted entirely". 

The EAT noted that the tribunal "plainly considered" that it had a real prospect of avoiding the disadvantage altogether by the claimant being confirmed in the new role at the end of the trial period – a chance which the tribunal, when considering remedy, put at 50%. Offering the claimant a trial period in the service administrator role was a reasonable step for the respondent to have to take to avoid the disadvantage on the facts of this case.

This is an important decision for employers when considering their duty to make reasonable adjustments for a disabled employee under the Equality Act 2010. 

Whether an employer ought reasonably to have put an employee into a given role, whether on a trial basis or not, is an objective question for the tribunal based on the facts presented to it. As the EAT noted "it is not bound to defer to the view of either the employer or the employee". 

The EAT noted that if the employer contends that the employee did not meet the essential requirements of the role (in terms of skills, qualifications, knowledge, experience, or otherwise) and presents evidence (such as the results of a test or assessment process that it carried out) in support of its case, that is evidence that should be carefully considered and weighed by the tribunal. However, having done so, it may nevertheless conclude, on all the evidence available to it, and facts found, that in the circumstances an employee should reasonably have been given a role, or at least a trial in it. 

Here the tribunal noted that the employer's decision had been purely based on the recruiting manager's assessment of the interview and tests and not a manager who had the benefit of knowledge of how the claimant performed in his current role. It therefore had cogent reasons, based in its findings of fact, for disagreeing with the employer's view at the time. The employer's concerns over the claimant's performance in the interview and written assessments could have been met by offering him a trial period.

Immigration update

The last few months have brought dramatic changes for UK immigration with more developments on the horizon. 

These include changes to arrangements for short-term visitors to the EU, increased flexibility for those visiting the UK, new requirements for anyone wishing to return to or join their family member in the UK, a large increase in penalties for employing an illegal worker and further changes to e-visas. 

The latest update from our immigration team discusses these topics and sets out key dates over the coming month. It also addresses one of the biggest questions that UK businesses face at the moment: can a business implement a policy as to who it will or will not sponsor for a work visa? We explore the issues many employers are facing on this complex and topical issue in our Insight.