Category: Employment Law

A question for you – was a tribunal entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on their employer’s intranet fell outside the band of reasonable responses?

It was held by the Employment Appeal Tribunal (EAT) in the recent case of Vaultex v Bialas, that they were not.

In this case, the Claimant had posted a racist joke on the Respondent’s intranet. The Claimant had a long, unblemished employment record and had apologised for the way he acted. However, the Respondent decided to dismiss the Claimant for gross misconduct. Somewhat surprisingly, it was held by the tribunal that the Claimant had been unfairly dismissed. The tribunal concluded that, having considered the Claimant’s previous record and the fact he had apologised for his actions, any sanction higher than a final written warning was unfair, and therefore fell outside the band of reasonable responses that a reasonable employer could have reached.

However, on appeal by the Respondent, the EAT held that the tribunal had substituted its own view for that of the Respondent. The EAT concluded that ‘any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case’. The EAT therefore substituted a finding of fair dismissal.

This case provides a key insight into the band of reasonable responses test to be adopted by employers and how this applies in practice. For the avoidance of doubt, judicial guidance regarding the meaning and application of s.98(4) of the Employment Rights Act 1996 in the context of misconduct dismissals is set out below:

• In assessing the
  reasonableness of the decision to dismiss, the tribunal must consider the
  decision against the objective standards of the hypothetical reasonable
  employer, rather than by reference to the ET’s own subjective views. It
  must consider whether the employer has acted within a “band or range of
  reasonable responses” to the misconduct found of the employee.
• The tribunal must not
  substitute its own view as to whether they think that the dismissal was
  fair for that of the employer.

Ultimately, it is important that employers ensure that any disciplinary sanction is proportionate to the alleged misconduct and apply a lesser sanction, such as a written warning, where appropriate. If you find yourself in this situation, ask yourself: could a reasonable employer class the employee’s actions as gross misconduct and dismiss? If the answer to this question is yes, then there is a good chance that a dismissal will fall within the reasonable band of responses and, consequently, would be deemed fair. Of course, this will all depend on the individual circumstances of the case at hand.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Did an employment tribunal act unreasonably in denying an extension of time in a discrimination case whereby the Respondent had not informed the Claimant of the race of their comparator?

No, it was held in Jones v Secretary of State for Health and Social Care, a case which provides a key insight into the rules regarding discrimination and out-of-time claims.

In this case, the Claimant who was of African-Caribbean descent, applied for a promotion but was unsuccessful. The successful applicant accepted the role in April 2019; however, the Claimant did not find out till later in July 2019 that he was unsuccessful. This meant that the 3-month limitation period for bringing a claim to the Employment Tribunal had expired. The Claimant asked for details of the successful candidate, but this was not provided by the Respondent. This led the Claimant to issue a claim for race discrimination in October later that year.

The Employment Tribunal claimed that there was nothing in the evidence which could have led them to draw an inference of discrimination. They stated that there was no evidence of any conscious or sub-conscious consideration of racial characteristics, and that the Respondent genuinely chose the best candidate for the role based on their performance at interview. Despite the Claimant’s criticisms, the Respondent did provide him with information and an explanation of their actions quite early on. It was determined the Claimant was given enough information to understand the interview process should he wanted to present a claim to the Tribunal.

The tribunal held that the Claimant’s claim was out of time. The primary time limit ran from 2 April 2019, and it was not just and equitable in the circumstances to extend time. The EAT agreed with this conclusion, and it was held that the EAT can only overturn a tribunal’s decision that it was not just and equitable to extend time if it was ‘perverse’.

It was found that the tribunal had acted correctly in weighing the issues the Claimant had in discovering the race of the successful candidate and the prejudice to the Respondent caused by the delay. The EAT did, however, criticise the Respondent for not disclosing the race of the successful candidate until after the submission of its ET3. The EAT reflected that failure to provide such basic information might, in appropriate circumstances, lead to an inference of discrimination.

This case highlights the need for employers to share information on potential comparators to relevant employees where necessary. It also demonstrates the importance of adhering to strict time limits when presenting a claim to the tribunal. Most Employment Tribunal claims have a time limit of 3 months less one day to bring a claim however, for certain claims this time limit is extended to 6 months less one day.

Although the Employment Tribunal may grant an extension of time on just and equitable grounds in discrimination claims, the hurdle to be jumped, to establish it would be just and equitable to extend time, is a high one. Here, the reason for the Claimant’s delay in commencing his claim was not enough to get over that hurdle, leaving his claim out of time.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

It is important to make you aware of the new guidance that has recently been published by the Equality and Human Rights Commission (EHRC) on menopause and the workplace, which sets out employers’ legal obligations under the Equality Act 2010 and ways in which businesses can support women with menopausal symptoms at work.

Menopause and Perimenopause:

For those who are unaware, menopause is when a woman’s periods stop due to reduced hormone levels. This normally occurs between the ages of 45 and 55 but can sometimes be earlier or later. It can occur for many reasons, including:

• Naturally
• Genetics
• Surgery
• Cancer treatments

although, the reason can sometimes be unknown.

Perimenopause is when a woman experiences symptoms of menopause, but her periods have not stopped. Menopause can cause a range of both physical, and psychological symptoms in women.

The EHRC has stated that many women between the ages of 40-60 report experiencing negative impacts of menopausal symptoms in the workplace, with some even feeling pressured to leave their jobs.

Employer obligations under the EqA 2010:

Under the Equality Act 2010, workers are protected from discrimination, harassment, and victimisation on the basis of protected characteristics including disability, age and sex. If menopausal symptoms have a long term and substantial impact on a woman’s ability to carry out their usual day-to-day activities, these symptoms could be considered a disability. At least it was in the case of Rooney v Leicester City Council, whereby it was successfully argued that menopause could be classed as a disability in the workplace, which is significant caselaw for employers.

If this is the case, employers will be under a legal obligation to make reasonable adjustments in the workplace. They will also be under a legal obligation to not directly or indirectly discriminate because of the disability or subject the woman to discrimination arising from disability.

Women experiencing menopausal symptoms may also be protected from direct and indirect discrimination, as well as harassment and victimisation, on the grounds of age and sex.

Suggested measures:

The EHRC also published guidance which sets out what businesses can do to mitigate the impact of menopause on women in the workplace. Some of these measures include:

• Providing rest areas and
  quiet rooms

• Introducing cooling
  systems or fans for women experiencing hot flushes

• Relaxing uniform
  policies

• Providing cooler
  clothing

• Promoting flexibility of
  location

• Varying shift patterns

They advise that menopause related absences are recorded separately from other types of absence. It is also recommended that employers encourage a culture of open conversations regarding workplace menopause, so that women can feel more comfortable to talk about their symptoms and ask for adjustments should they be needed. Involving all workers, not just managers, in these conversations will help them to feel confident in supporting other colleagues.

This could be done through training, which could include manager training, lunch and learn sessions and opportunities for women to discuss their experiences and get support. Conversations can also be informal and may consist simply of regular reminders to workers of the support available to them, and offering confidential one-to-one support meetings with managers to discuss any issues they are experiencing.

Employers may also support women by introducing a menopause policy that outlines the support available and provides guidance to managers and colleagues. Therefore, policies and practices may need to be adapted accordingly, to ensure fairness and inclusivity in the workplace. We will of course ensure that this is done on your behalf.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Since the start of the #metoo movement, awareness of workplace sexual harassment has grown.

As stark revelations of sexual harassment continued to surface, the government made a commitment back in 2021 to strengthen protections for victims of harassment at work. 

The Worker Protection (Amendment of Equality Act 2010) Act 2023 does just this, as it comes into force on 26 October 2024, amending the Equality Act 2010 in two respects.  

Although it has been watered down compared to the original proposals, the new law will still create an important new duty that all employers need to take seriously.

It serves to:

1. Establish a new duty upon you to take ‘reasonable steps’ to prevent sexual harassment of your employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act 2010, which is unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. 

The law already provides a defence to a harassment claim if the employer can show they had taken all reasonable steps to prevent it from happening. This meant it was advisable to take such steps, but there was no actual requirement to do so.

Over time the courts have made it evidently clear that such reasonable steps will usually include:

• Having well-drafted equal opportunities and anti-harassment and bullying policies in place
• Ensuring all employees are aware and understand such policies and their implications
• Taking steps to deal efficiently and effectively with complaints, including taking appropriate disciplinary action where necessary, and
• Providing equality and harassment training to employees and supplementary training for those individuals with managerial/supervision responsibilities.

Although the law has predominantly been introduced to protect women, it applies equally to people of all genders.

2. This marks a key change in focus in the legislation from redress to prevention imposing a new obligation upon you to be proactive in tackling sexual harassment; andProvide employment tribunals the authority to uplift sexual harassment compensation by up to 25% where it is found you have breached this new duty.  Please note, this uplift could be substantial, particularly as compensation awarded in serious cases of sexual harassment can exceed £50,000.  In addition to this, complaints of sexual harassment can also lead to costly settlements, high-profile departures of senior management, loss of productivity and an adverse effect on recruitment and employee retention. 

In a nutshell, this new law now goes further by placing a separate legal obligation upon you to take proactive measures to prevent sexual harassment.

To support you in meeting this new obligation KGS can offer crucial training packages to show reasonable steps are being taken.

The case of Allay Ltd v S Gehlen demonstrated that employers would not be able to rely on a reasonable steps defence unless they can show their training is thorough (not brief or superficial), regularly delivered and refreshed if particular issues arise.  This type of training has now become even more significant as these changes have been implemented. The Employment Appeal Tribunal in this case concluded that the original tribunal was “entitled to conclude training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the respondent should have taken”.

To note, the new duty can also be enforced by the Equality and Human Rights Commission (EHRC), using its existing powers of enforcement, including investigations and litigation. The EHRC has indicated that it will update its technical guidance, which it published in January 2020, to reflect the new duty.

What can you do?

This is simple and easy to achieve! The advice we are aiming to provide is that you must ensure mandatory, effective training is in place, and most importantly, that the effectiveness of such training is regularly reviewed and repeated, with improvements made, wherever and whenever necessary.  You need to ensure your training is of a good standard and that employees and managers are aware of what to do when discrimination/harassment arises within your workplace by following the correct steps; only then will you have the chance of using the ‘reasonable steps’ defence if ever called upon.

Next steps:

KGS can support you in this area. We have a choice of online training available to meet your needs and requirements, in particular the course/s of interest may be:

• Bullying & Harassment
• Conflict Resolution
• Equality & Diversity
• Unconscious Bias Training
• Sexual Harassment Training

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

As you may already be aware from the news articles this week, where home working has been guidance only, from 20^th December 2021, individuals must work from home where reasonably practicable for them to do so. Employers must allow or require their employees to work from home unless there is a clear business need that would make working from home impractical, in line with their duties to take reasonable measures.

When we look at reasonable measures the government have explained that there is an expectation that employers must be flexible and make adjustments wherever that is possible. For example, issuing staff with IT equipment (laptops, monitors, keyboards), issuing staff with mobile phones, facilitating communication across locations this is something a lot of employers will already be prepared for given the unprecedented times over the last, almost two years.

It is important to note that employees must not be required or placed under pressure to return to a workplace setting if there is not a clearly demonstrated business need for them to do so.

Employers who are considering requiring their staff to return to workplace settings should first assess whether alternative arrangements such as working from home could meet the majority of business needs, employees must be allowed to work from home in order to minimise the risk of exposure to or spread of coronavirus. This should be discussed with staff or representatives of staff.

In determining whether to ask staff to return to workplace settings, employers must also consider whether any adverse impacts on an individual’s wellbeing would be particularly adversely affected by this. This includes:

• The risk to individuals who are at increased risk or are clinically extremely vulnerable (who were previously advised to shield and who still need to take high levels of precaution).
• Whether returning to the workplace would cause individuals severe anxiety.

This is particularly the case where work would require them to be in regular or sustained contact with other people or to share a poorly ventilated space for long periods.

Equally, there may be staff who wish to return to or remain in workplace settings. In these circumstances, the wellbeing of staff is a relevant consideration when deciding what measures to prevent the spread of coronavirus are reasonable. For example, would requiring an employee to work from home have an adverse effect on their mental health.

Although an employers’ first priority should be minimising the risk of exposure to coronavirus, this should be balanced against the detrimental effect working from home may be having on an employee’s wellbeing. In these circumstances if employees in this position can return to the workplace setting without a significant increase in the risk of exposure to coronavirus, this can be considered. In view of this, employers should consider the extent to which the employee returning to the workplace would come into close contact with others both within the workplace but also in travelling to and from work.

It is important that risk assessments are kept up to date and that preventative measures are kept in place in line with Government Guidance, for example, 2 metre distancing, hand sanitising, wearing face masks etc.