Our weekly top five for employers: 25 March 2019

1. What do employers need to be aware of this April?

With the ongoing Brexit uncertainty, it may be easy to forgot the changes which are coming into force for employers this April and other key issues which employers must tackle including:

• uploading their gender pay gap report and publishing it on their company website on or before 4 April;
• ensuring pay-slips set out hours worked on variable pay and that they are now provided to all workers as well as employees for pay periods after 6 April. The government has issued guidance on these changes available here;
• reflecting changes to national minimum pay rates from 1 April and statutory leave rates from 6 April for statutory sick pay and 7 April for statutory maternity, paternity, adoption and shared parental pay;
• factoring in changes to the maximum unfair dismissal compensation and maximum weekly pay rate for statutory redundancy pay and the basic unfair dismissal award from 6 April;
• preparing for IR35 changes due in April 2020;
• ensuring any confidentiality and non-disclosure provisions in employment contracts and settlement arrangements reflect the current position; and
• with a continuing focus on holiday pay and GDPR, review current arrangements and identify what actions should be taken.

Please speak to your usual Osborne Clarke contact for more detail on any of these changes.

2. EAT restrains the widening scope of ‘disability arising’ cases

Employers can take some comfort from an Employment Appeal Tribunal (EAT) decision that an employee was not discriminated against due to 'something' arising from a disability where the employee received a written disciplinary warning for refusing to move to work in a new area of a warehouse because she wrongly believed it was colder and damper and that would exacerbate her existing osteoarthritis. The employer's investigations showed that in fact the temperature and humidity levels throughout the warehouse were not materially different.

However, whilst the EAT decision emphasizes that there must be at least some connection between the 'something' and the employee's underlying disability – an employee's perceived but incorrect connection will not be sufficient - employers should still ensure that they give careful consideration to whether or not in fact the employee's mistaken belief has arisen in some way from the employee's disability, for example where stress or pain from the disability results in an impaired judgement. This was not argued in this case.

iForce v Wood

3. Court of Appeal finds pre-transfer dismissal was by reason of transfer and automatically unfair

A Court of Appeal (CA) decision has emphasised the difficulty in terminating employment in a TUPE scenario and the need to carefully document the reasons why a dismissal is being contemplated, as well as following a fair procedure.

Here, an employee (K) was not TUPE transferred along with the other employees working in a business when it was sold to a new owner. Instead, K's employment was terminated two days before the transfer. She claimed that her dismissal was automatically unfair under TUPE. However, it transpired that she had ongoing difficulties in her working relationship with another employee and who would have become her supervisor after the transfer.

The CA held that the reason for her dismissal was the transfer - the employer had not taken any previous action to resolve the ongoing relationship difficulties and the fact that it only chose to do so at the point of the transfer by dismissing one of the employees, pointed to the reason for dismissal being the transfer. As Lord Justice Underhill put it: “The transfer was not simply the occasion for her dismissal but was, if not the sole reason, at least the principal reason for it: it was the transfer that made the difference between the problems being treated as a cause for dismissal and not.”

The decision is a reminder for employers of the risks when dismissing at the point of transfer, even where the circumstances are such that at another time it might well be argued that there was in fact a 'fair' reason for terminating. Where a dismissal is in contemplation for what otherwise may be a 'fair' reason, an employer should take care to document the decision-making process. Employers should also remember that not every dismissal made by reason of the transfer will be automatically unfair - TUPE does allow for a dismissal by reason of the tranfser where there is an economic, technical or organisational reason connected to the transfer, such as a redundancy. However, a fair procedure must still be followed.

Hare Wines Limited v Kaur and another

4. Was there 'unfavourable treatment' where a redundancy form was sent to employee's inaccessible work email address during maternity leave?

A recent EAT decision provides a helpful reminder for employers to always ensure that they have established how they will communicate with an employee where he or she is on an extended period of absence.

Here, an employee on maternity leave attended a meeting at which she was put 'at risk' of redundancy. The follow up communication providing a redeployment form was sent her work email but which she was not accessing while on maternity leave. Although there was only a short delay between her realising that the documents had been sent to her work email and notifying HR who then provided them to her, she claimed that she had received unfavourable treatment under the Equality Act.

The EAT agreed with the ET that sending an important and urgent work message to an email address that the claimant cannot access was 'unfavourable treatment' and that a failure to consult a woman on maternity leave about changes to her work, or about possible redundancy, is potentially discriminatory under the Equality Act. However, the EAT identified that the ET had asked the wrong question in upholding her claim – the ET had asked itself whether or not the unfavourable treatment would have taken place 'but for' the claimant's maternity leave. Instead, the correct question to ask was what was 'the reason' why the unfavourable treatment had taken place.

The case has been remitted back to the ET to determine whether 'the reason' for the unfavourable treatment was the result of an administrative error or whether there was a discriminatory motive in play. In the meantime, employers should take steps to ensure they establish a line of communication with any employees who are absent and follow that in practice to avoid any tricky issues such as these arising and the inevitable damage to trust and confidence between employer and employee.

South West Yorkshire Partnership NHS Foundation Trust v Jackson and others

5. New ACAS guidance on neurodiversity in the workplace

ACAS has published new guidance on handling neurodiversity in the workplace. Neurodiversity refers to the different ways the brain can use and interpret information and affects one in seven people in the UK through forms such as attention deficit disorder, autism, dyslexia and dyspraxia. With increasing recognition of these conditions in today's society, employers must now ensure they are taking appropriate steps to support and protect employees with these conditions in the workplace. The new guidance:

• explains what neurodiversity is and highlights the different types of neurodivergence and the unique difficulties they may bring.
• explains the importance of taking steps to support neurodiversity in the workplace. Indeed, employers may be obliged to treat certain types of neurodivergence as a disability under the Equality Act 2010 and make any necessary reasonable adjustments.
• draws attention to the other benefits that creating a more inclusive workplace can bring, including highlighting the employer's commitment to diversity and inclusion, increasing feelings of safety and empowerment and helping retain skilled staff and reduce recruitment costs.
• sets out steps for managers to take in response to neurodivergence, including the need to be supportive and to keep issues confidential. The guidance suggests that in order to identify the specific actions that should be taken for each individual, an assessment must be made about how neurodivergence affects them in particular. It sets out different experts who should be contacted if unsure about what adjustments to make.

It is important to note that neurodiversity is distinct from mental health issues. However, with increasing awareness of disorders coming under the neurodiversity umbrella, coupled with the statutory discrimination protections in place, employers must ensure they are taking appropriate steps in their organisation to support and accommodate individuals who are affected. We are happy to talk to you about actions for your business, including any training needs for managers and HR.