Weekly top five for employers: 15 May

1. Subsequent knowledge of disability was relevant at appeal to disciplinary proceedings

An EAT decision has emphasised the importance of taking into consideration disability issues even where an employer only becomes aware of those issues at an appeal following dismissal.

Here, the employer did not have knowledge of a claimant's disability (either actual or constructive) prior to dismissing her in light of performance issues and concerns about her behaviour towards colleagues. However, it was told of her depression (and which could have influenced her behaviour) at the appeal hearing. The employer's rejection of her appeal formed part of the claimant's complaint of disability related discrimination and therefore the issue of the employer's knowledge at that stage of the proceedings was a relevant factor that should have been considered by the tribunal. The EAT also confirmed that it was sufficient for the 'something arising in consequence' of the disability to have a 'material influence' on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim.

This case emphasises the importance of remaining alert to any underlying reasons causing behavioural changes and ensuring that the appropriate support is in place to help the employee in the workplace.

Baldeh v Churches Housing Associate of Dudley and District Ltd

2. Mental health awareness week

Last week was mental health awareness week and a timely reminder for employers to ensure that they are taking appropriate steps to support mental health in the workplace. According to the government's Department of Health, 25% of us will experience mental health issues at some point in our lives. A study conducted by the Chartered Institute of Personnel and Development shows the impact that mental health conditions can have on individuals and which in turn has implications for employers:

• 37% of sufferers are more likely to get into conflict with colleagues
• 57% find it harder to juggle multiple tasks
• 80% find it difficult to concentrate
• 62% take longer to do tasks
• 50% are potentially less patient with customers/clients.

The stigma which has historically existed around mental health means that it can often be more difficult for employers to spot and understand the difficulties their employees may be facing. As well as the obvious benefits from recognising and supporting mental health issues. Employers should also be aware that a mental health condition may well be a disability for the purposes of the Equality Act, imposing on employers a legal duty to make reasonable adjustments to support affected employees in the workplace.

3. Inadvertent failure to comply with the National Minimum Wage

A new report from the Low Pay Commission has found that the number of people paid less than the statutory minimum wage in the UK increased in 2018. The report looks at the most up to date statistical evidence on the extent of non-compliance with the minimum wage and uses evidence from stakeholders and the Government to reflect on the policy responses to non-compliance. The figures show that in April 2018 the number of individuals underpaid was 439,000, an increase of around 30,000 on the previous year’s level of underpayment for over 25s. A higher proportion of women are underpaid and the youngest and oldest workers are more likely to be underpaid. The largest number of underpaid individuals work in childcare, hospitality, retail, cleaning and maintenance.

The report recommends that the government continues to invest strongly in communications to both workers and employers around minimum wage compliance and enforcement. It also makes specific recommendations around information for workers and trade unions, guidance for employers and publicity around the enforcement regime. Responding to the report, TUC general secretary Frances O’Grady commented that 'there should be no hiding place for bad employers – that’s why the government must restart naming and shaming bad bosses who cheat their workers out of pay'. However, a number of employers are inadvertently failing to comply with the rules, such as where a salary sacrifice scheme impacts to bring wages below the minimum level.

Indeed, an Employment Tribunal decision has put a spotlight on staff who work additional hours but unpaid. The claimant was often required to cover for the store manager, usually involving opening a store in the morning and closing it in he evening. Closing the store involved closing and reconciling the tills, closing the register and locking up the stores. The claimant disputed the respondent's contention that this only took a matter of minutes, arguing that he had in fact clocked up close to 200 hours of unpaid overtime. The ET agreed finding that as the claimant was an hourly paid member of staff he was 'entitled to pay for hours worked'.

Employers should ensure that their staff are not being required to undertake tasks outside of their contracted hours and, as appropriate, build in any additional requirements as part of the employment contact.

Fitz v Holland and Barrett

4. Enhanced shared parental pay – what is the latest?

The Court of Appeal (CA) has now heard the appeals in two cases on the issue of whether or not shared parental pay should be enhanced to mirror enhanced maternity pay. The CA is being asked to determine whether the failure to match pay for shared parental leave to the level of maternity pay constitutes either direct (Ali v Capita) or indirect (Hextall v Leicestershire Constabulary) sex discrimination. In Ali, the EAT held that maternity leave is fundamentally different to shared parental leave – the former relating to the health of the mother and the latter focusing on care for the child, although it did acknowledge that there was probably a point at which maternity leave tips from being about the health and recovery of the mother to being about care for the child. In contrast, Hextall looks at whether a disparity in enhanced maternity pay and shared parental pay is indirectly discrimination – does a policy of not enhancing shared parental pay disproportionately affect more men than women and if so, whether that disparity can be objectively justified.

Whilst we must await the decision of the CA, employers who do continue to operate maternity schemes which are more beneficial than their shared parental leave schemes should ensure that they have considered carefully why they have adopted the position they have and retain a written record.

5. Fitness and propriety: dismissal based on lack of witness credibility

In the financial services sector, one of the most important factors in assessing the fitness and propriety of a person to carry out a controlled function is the person's honesty, integrity and reputation. All firms subject to the Senior Managers and Certification Regime (SMCR) are required to continually assess and satisfy themselves that senior managers and certified staff are 'fit and proper'.

The EAT has handed down a potentially helpful decision, finding that a dismissal for gross misconduct of an employee in a regulated role was justified in reliance on an employment tribunal deciding that his evidence was not credible in an ET hearing. The ET stated that they felt that his evidence was evasive and which was a grave concern in the circumstances due to his regulated role. The employer received the judgment and decided that it could no longer certify the individual was fit and proper under the FCA handbook requirement for the SMCR and the individual was dismissed for gross misconduct. The EAT upheld the ET decision that his dismissal was fair. Whilst making the decision dismissal without a separate investigation into his behaviour was not best practice, it was reasonable in the circumstances and therefore the dismissal was not unfair. However, employers must ensure that they consider each case on its own facts – here the ET had indicated that the individual's behaviour had caused it 'grave' concern.

Radia v Jeffries International Ltd