An employer has a duty to make reasonable adjustments for employees (and applicants for employment) with a disability. In this article we look at this duty in more detail and highlight a few key considerations for employers.

The first thing to consider is the definition of “disability”. The law defines a disabled person as someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

It is important to recognise that not all disabilities are visible. An employer would therefore be wise to ask applicants for employment to disclose if they have a disability that may require a reasonable adjustment in the recruitment process. Similarly, an employer would be wise to have policies that encourage employees to speak to their managers about any disability that might require an adjustment.

An employer does not have a duty to make a reasonable adjustment if it does not know or cannot reasonably be expected to know that the individual has a disability. However, employers should not then assume that they have no responsibility unless a disability is declared by the employee. There can be a number of indications that an employee or applicant may have a disability that requires a reasonable adjustment. If an employee’s attendance record is not good, there may be an underlying health condition as the root cause. The condition may be a disability and an employer may have to consider reasonable adjustments.

If an employer has concerns over an employee’s attendance or performance, it should address the concern with the employee and make enquiries regarding whether there may be a health condition that is contributing to the issue. If this is suspected, it is advisable to seek a medical opinion, either from the employee’s own doctor or by making a referral to an occupational health doctor for a report.

The duty to make the adjustment is on the employer. It is not a defence to say that the employee did not make suggestions as to what adjustments may be helpful. However, in most cases, employees will be happy to discuss how their employer can assist them so open dialogue between the employee and management should be encouraged.

Whether or not an adjustment would be considered reasonable depends upon a number of factors, including:-

-        The resources available to the employer

-        The cost of the adjustment to the employer

-        The extent of the positive impact the adjustment may make to the employee

-        How operationally practical it would be for the employer to facilitate the adjustment

Examples of some adjustments that may reasonably be required are:-

-        Providing information in an accessible format

-        Making adjustments to workspaces – chairs, computers, desks etc

-        Making a ground floor workspace available

-        Taking steps to alleviate stress

-        Allowing a flexible working pattern

-        Making allowances for disability-related absences in attendance management or redundancy procedures

For further advice on this or any other employment law matter, please get in touch.

We have been getting a few queries about whether employers have to give employees an extra day off due to the extra bank holiday this year for the Queen’s Platinum Jubilee.

Generally speaking, unless an employee’s contract provides for them to be given all bank holidays as leave, there is no entitlement to an extra day’s leave this year.

Employees in the UK are entitled to 5.6 weeks’ holiday per year. This equates to 28 days for a full-time employee. Out of these 28 days, an employer may close 10 days of the year around the usual bank holidays / Christmas period. This would leave an employee with 18 days to take at other times of the year to be agreed with the employer.

There is no automatic entitlement for employees to take bank holidays as annual leave, unless the contract provides for this. If a business decides to close on the extra bank holiday, the employer can choose to either require employees to take this as a day out of their annual leave entitlement (by giving notice) or simply close the extra day and gift the employees the day without requiring them to take it out of their annual leave entitlement.

We hope this article has been helpful. Please get in touch if you have any queries.

The significant rise in National Minimum Wage (NMW) in the UK coming into effect in April 2022 will affect any employer who engages workers at, or close to, minimum wage levels. Employers will be wise to consider in advance which employees will be affected, both those who will need to have their pay increased due to the increase in the NMW rate itself, and where there will be a need to maintain differentials with other employees.

The statutory minimum wage for workers aged 23 and over is called the National Living Wage (NLW). The age threshold for the NLW was lowered from 25 to 23 in April 2021.

From April 2022 the NLW increases from £8.91 to £9.50 per hour.

The National Minimum Wage (NMW) rate for 21-22 year olds will increase to £9.18, narrowing the gap with the NLW, in line with the government’s aim to see this age group receiving the NLW by 2024.

The rises for all age groups are set out in the table below:

	23 and over “NLW”	21 – 22	18 – 20	Under 18	Apprentice Rate (under 19 or 1st year of apprenticeship)
April 2022 (new rate)	£9.50	£9.18	£6.83	£4.81	£4.81
April 2021 (old rate)	£8.91	£8.36	£6.56	£4.62	£4.30

The apprentice rate applies to apprentices who are aged under 19 or in the first year of their apprenticeship. If they are aged 19 or over or have completed the first year of their apprenticeship, the NMW for their age applies.

The NMW applies to both employees and casual workers. It applies whether an employee is hourly paid or paid an annual salary, and whether they work full time or part time. It also applies where piece work is done.

The average hourly pay in each pay reference period (between a week and a month depending on how often they are paid) must be at least the applicable rate. Given the significant increase in the rates for April 2022, it is important to check that salaries are compliant. For example, a 23 year old working 40 hours per week will need a salary of at least £19,760 to meet minimum wage. Where salaries are close to minimum wage level it is important that any additional hours worked are paid to avoid the average pay falling below NMW level.

Rest breaks taken do not count towards hours for NMW purpose. If breaks are not paid, the contract should specify this so that it is clear what hours are paid.

Tips cannot be counted towards NMW, neither can salary premiums paid for particular hours (e.g. night work or work on bank holidays), or most benefits in kind such as meals or fuel. If accommodation is provided this can be offset against minimum wage up to a prescribed level. Be aware that deductions from wages for expenditure in connection the employment, such as for a compulsory uniform, will reduce the pay for NMW purposes. There are other exceptions and special circumstances which it is beyond the scope of this article to detail and on which further advice may be needed.

Record Keeping Consequences of non-compliance

An employer is required by law to keep records sufficient to establish that it is paying workers their NMW entitlement, and to allow an employee access to these records. To “refuse or wilfully neglect” to pay minimum wage, or to fail to keep records, are criminal offences, although prosecution is rare.

A worker can enforce their entitlement to NMW through a claim in the Industrial Tribunal (NI) or Employment Tribunal (GB) for breach of contract or unlawful deduction from wages.

Compliance with NMW is enforced by HMRC. They may investigate an employer’s NMW compliance either following a report made to them, or by proactively targeting employers where they judge there is a high risk of non-compliance.  They can enforce the worker’s entitlement by issuing a notice of underpayment or suing on the worker’s behalf. A notice of underpayment requires payment of a financial penalty which will be the total of the amounts for all workers, the amount for each worker being 200% of the underpayment due to them, subject to a maximum of £20,000. It should be noted that that maximum is per employee and not the total maximum penalty.

The government also operates a scheme whereby offending employers are “named and shamed”  - details published in a press release which is posted on the government website. There are some grounds on which an employer can successfully object to such publication. However, there is a significant risk of adverse publicity and damage to reputation.

If you have any concerns or questions about compliance with minimum wage requirements, or how you may be affected by the rise, please get in touch for specific advice.

After the work Christmas party was ruled out last year (with Downing Street apparently a possible exception), many organisations are again venturing out for a Christmas meal and social event.

Clearly with covid still with us, this year’s work Christmas party will likely not be quite the same as other years with many organisations choosing either not to go out at all or to go out in smaller groups. Many employees are keen to go to a work Christmas party and some probably feel uncomfortable. It should go without saying that no-one should feel pressured by colleagues or managers to attend a work Christmas meal.

We’ve had a few queries asking if employers can ask employees to take lateral flow tests before the work Christmas social event to boost the confidence of those in attendance. Our advice on this has been that it’s fine to suggest this to employees and that many will take a test out of a sense of responsibility to colleagues. However, we would suggest that employers stop short of making taking lateral flow tests a pre-condition of attendance and they should trust employees not to come if they test positive, rather than insisting on employees sharing their results.

It would be helpful to consult with the venue around their covid protocols before attending. The rules are slightly different in terms of what is required and what is currently being enforced in the various jurisdictions across the UK and Ireland. Some venues may be checking the covid status of guests while others may not be. It would be helpful to let your employees know what to expect from the venue before they attend.

Finally, one thing that hasn’t changed but is worth reminding employees about is that the work Christmas social event is an extension of the workplace. Employees should treat colleagues with the same dignity and respect at the Christmas party as they would in the workplace. Any acts of harassment at the work Christmas party can land both the employer and the employee in trouble. Employers may wish to consider issuing a memo reminding staff that their conduct towards each other must remain respectful while at the Christmas party.

October 2021 has been designated as “World Menopause Awareness month” by the International Menopause Society (IMS), in collaboration with the World Health Organization (WHO), with the aim of raising awareness of the issue and support options. We are therefore taking the opportunity to highlight related issues that may occur in the workplace.

It is becoming increasingly recognised that this is a health and wellbeing concern for staff and needs to be handled sensitively by employers as part of their duty of care.

Failure to do so can result in not only a loss of working hours and productivity, or of women leaving work altogether, but also claims against the employer who fails to recognise and address issues arising.

If an employee or worker is put at a disadvantage or treated less favourably because of their menopause symptoms, this could result in a claim for discrimination connected to a protected characteristic, particularly sex or age. Thoughtless comments about menopause could also lead to claims of harassment on grounds of sex or age.

Menopause symptoms vary widely from person to person and in their severity and persistence. Symptoms which are long lasting and have a significant effect could meet the definition of a disability for which reasonable adjustments are required. Certain other conditions classed as disabilities, or their treatments, can trigger early menopause, and symptoms related will therefore need to be addressed sensitively.

There may be very simple facilities or arrangements that can alleviate symptoms if put in place in consultation with those who may be affected. These can include sitting close to open windows or fans. However, it is important that managers are aware that symptoms can vary greatly, and they should not make assumptions or use a “one size fits all” approach. They should also be aware that there are symptoms which cannot be specifically relieved by action in the workplace, but can still affect sufferers in the workplace , such as the consequences of lack of sleep.

Employees affected by menopause should feel comfortable in raising issues, but this may not always be the case particularly if there is a male dominated workplace or management structure. Although all managers should develop awareness, employers can encourage any issues to be raised at an early stage by ensuring that there is at least one appropriate designated manager who staff know they can approach and receive support.

The Equality Commission for Northern Ireland, the Irish Congress of Trade Unions Northern Ireland Committee and the Labour Relations Agency have together produced the guidance ‘Promoting Equality in Employment for Women Affected by the Menopause’, which can be accessed using the link below. This provides advice and guidance in an accessible form. Readers in GB should note that the guidance will be relevant and helpful there too.

https://www.equalityni.org/ECNI/media/ECNI/Publications/Employers%20and%20Service%20Providers/MenopauseInWorkplace.pdf

As always, if you are aware of specific issues with your workforce or need specific advice in this area, please get in touch with us.

It was recently reported that a female former employee successfully claimed sexual harassment against the Bank of Ireland.  In this article, we consider what employers can learn from the case.

The Tribunal found that, despite an independent report instigated by the Bank finding that the incidents complained of were not serious, the Claimant had in fact been subjected to serious sexual harassment.  It found both the Bank and the individual involved, “F”, liable for the harassment and awarded £18,000 as compensation for injury to feelings made up of a £14,000 award and £4,000 in interest.

The Claimant started work with Bank of Ireland on 11 May 2015, when aged 25, as a Business Services Advisor.   The perpetrator was aged around 50.  Both were based in the Bank’s offices in Belfast City Centre but did not work together.

After the Claimant commenced employment F would frequently approach the Claimant at her desk and make conversation with her about trivial matters which to the Claimant seemed unnecessary, particularly since they were not working together.

Subsequently the following occurred:

June 2015 – F gave the Claimant a floor plan of the office.  He was not asked to do so by any line manager or the Claimant and had done so after he had overheard a conversation between the Claimant and another female colleague.

July 2015 – F messaged the Claimant, saying “have you noticed that N looks over us every time we talk”.  The Claimant replied that she had not and would not care if she was but was concerned that F seemed to be under the impression that there was some friendship or relationship between them when there was not.

August 2015 – the Claimant was wearing her hair in a bun and F came over to her desk and remarked that her hairstyle was “really in fashion and that he had seen it on a website he was looking at”.  Later the same day he brought over to the Claimant an eight-page printout from the internet stapled together in a booklet of celebrity hairstyles and suggested she might want to try some of them out.

September 2015 – following the Claimant’s return from annual leave, during which she had been on holiday in Holland with her mother, F asked her had she had a nice time in Barbados.  F then went on to say “I seen your bikini photoshoot pictures and you are going to have lots of fan mail to catch up on from being away”.  She had told him she had no idea what he was talking about.  There were and are no such photoshoot or photos of the Claimant in her bikini.

During this period, F regularly came to her desk, when she was opening and sorting out company post, suggesting she was opening fan mail, which she felt was insinuating she was some sort of a celebrity.

In September/October 2015, when the Claimant and F were leaving work, F commented that they always seem to meet at the lift in the evenings, making the Claimant feel concerned that F was timing his leaving from work in order to be in the lift at the same time.

20 November 2015 The Claimant was to go out to dinner as a part of team night out.  She was in “dressier” clothes than normal and was wearing her hair down and styled.  Throughout the day, F made gratuitous personal remarks about her appearance and what she was wearing and, on one occasion, pulled her hair when walking past the back of her chair.

The Claimant told her line manager about this incident during dinner that evening.  When back at work, her line manager spoke to F’s line manager but the Claimant was not informed of any action to be taken.

On 26 November 2015, F emailed the Claimant a link to a picture of insect eating a carrot, which to the Claimant was suggestive.  F later came to The Claimant’s desk and apologised for sending her the email in error.  The Claimant made it clear that he was not to send her any more messages and that she did not want to talk to him at all.

The Claimant raised a verbal complaint with her line manager on 27 November 2015.  Following a discussion with HR, the Claimant’s line manager advised her that whether she wished to proceed formally or informally was up to her.   No information was provided to the Claimant on the Bank’s harassment policy and procedures.

F’s line manager spoke to F on 1 December 2015 to see whether he accepted or rejected what the Claimant had alleged against him.  At the meeting F apologised and stated that he would no longer interact with the Claimant in any way that could be construed as “friendly” and all interaction would be on a purely business basis.

The Claimant was then informed that unless for purely business purposes, F would have no contact with her. The Claimant stated that on the basis that F had been “spoken to” and that he would not continue with any non-business related communication (verbal, email or other), she would be satisfied to leave it at this and also understanding that if there was a re‑occurrence, a full investigation would be triggered.

F was advised of the outcome and that there was to be no repetition (accidental or otherwise) so that any contact with the Claimant in the future was to relate to business purposes solely.  F asked that the same also applied to the Claimant.

This was treated as a verbal warning, but it was not confirmed to F in writing or placed on his personnel file.

There were no further issues until June 2016, when there was an incident at a coffee machine. F stated that he had been listening to the Claimant’s telephone calls and that she was good on the phone with difficult customers.  The Claimant was concerned that F appeared to be starting to resume his earlier behaviour.

On 15 June 2016, R a female colleague of the Claimant and of a similar age who worked in a different Department but on the same floor as the Claimant, told her that F had been also bothering her for some time, had made repeated comments about her looks, regularly touched her on the arm and back and shortly before R had spoken to the Claimant he had whispered in her ear that she had looked lovely that day.  R reported this to her manager, who in turn spoke to F’s line manager, who in turn spoke to F informally. However, R did not want to make a formal complaint or receive an apology.

In July, F was reportedly drunk at work and sleeping at his desk, however management took no action.

On 4 July 2016 F came back to the office at 5.05 pm to retrieve a forgotten bus pass, but went to the Claimant’s desk and asked how she was keeping.

The next day the Claimant submitted a written complaint that she had been harassed by F and that F had received no formal warning for sexual harassment or being drunk at work.

Subsequently F was suspended from work and an investigator was appointed.  The Claimant went on sick leave stating stress.

The investigator did not uphold the Claimant’s complaint, finding that as the Claimant had agreed to an informal approach at the time of her first complaint, she could not subsequently criticise the employer for not conducting a formal procedure.   However the investigator did find that R’s report of sexual harassment by F should have been the subject of a formal investigation, despite her wanting to deal with it informally, in view of the previous reports of sexual harassment by the Claimant.   The bank had a duty of care to other staff to ensure no further repetition.

The Tribunal found disagreed with the investigator’s view of F’s conduct, found that the Claimant was the victim of unlawful sexual harassment and awarded compensation.

The conversation at the coffee machine was enough to satisfy tribunal of sexual harassment because of the earlier promise not to talk to her about anything that was not work-related.   The earlier incidents of harassment constituted a continuing state of affairs and this meant that the Tribunal could consider them even though the Bank argued that those incidents were complained about outside the Tribunal time limit of three months.

What can we learn from this case

1.     Record meetings and outcomes in writing

The Tribunal was critical of the Bank’s processes, in that the verbal warning issued to F was not confirmed in writing, and no notes were taken at meetings with the Claimant and F at the informal stages.

2.     The Equality Commission will publicise successful cases

The Equality Commission supported the Claimant in this case by representing her in Tribunal.  The Equality Commission has a policy of promoting successful outcomes in the media, including on TV and newspapers.  In this case the Claimant told her story on local news on tv and radio which naturally affects the reputation of Bank of Ireland

3.     Statutory defence

In a case such as this, an employer can escape liability if it can show that it took all reasonable steps to prevent the harassment occurring.   This is known as the statutory defence.  The Bank was unsuccessful in proving the statutory defence and so was vicariously liable for F’s actions.

The Tribunal noted that the Bank’s Harassment policy had been written in 2000, but not subsequently updated.

The Tribunal was critical that despite the issue of the verbal warning, F was not subsequently given training in the Harassment policy.  It was also critical that he had been provided with no training following a similar incident at the Bangor branch in 2009.  He was not given a copy of the policy until he was suspended.   Line management had also not been training in the Harassment policy.

The Tribunal will require steps to be taken before an act of harassment has taken place, in order for an employer to rely on the defence.

In this case the employer had not done enough to demonstrate that it had taken all reasonable steps to prevent the harassment taking place.  The lesson is to regularly review policies and ensure that staff and management are aware of the policies and the need to comply with them.

4.     Sometimes an allegation must be investigated even if the employee does not consent.

Whilst the Tribunal did not categorically state that the Bank should have formally investigated R’s complaint, it did find that its failure to investigate added to the reasoning that the Bank could not rely on the statutory defence.

The employer should investigate incidents of its own volition in certain circumstances even if the victim does not want to make a formal complaint

5.     Time limits

The Tribunal will extend time limits for Claimants if it is just and equitable to do so.  In this case it found that there was a continuing state of affairs meaning that incidents occurring more than a year before a claim was submitted could still be considered by the Tribunal.

Conclusion

It is extremely important that employers keep their anti-harassment policies up to date and that employees are provided with training in this area. It is also important that, if an incident is reported, that it is fully investigated and appropriate action taken.

 

For those operating in the Republic of Ireland we have a brief update on changes in the jurisdiction. The section on “Right to Disconnect” may be of interest to readers operating in NI and GB as this is something that is on the agenda and gathering momentum in these jurisdictions.

The Republic of Ireland updates that we want to highlight today are:-

1. There are two new Codes of Practice on the Prevention and Resolution of Bullying at Work and The Right to Disconnect
2. There are changes to Adoptive Leave, Parents Leave and Paternity Leave.
3. In the future statutory sick pay will be introduced along with a Code of Practice on the Right to work remotely.

Prevention and Resolution of Bullying at Work

A new Code of Practice on the Prevention and Resolution of Bullying at Work has been issued by the Workplace Relations Commission.   It replaces Codes of Practice on Bullying issued by the Health and Safety Authority in 2005 and the Labour Relations Commission in 2002.

The Code recognises that workplace bullying is both a health and safety and an employment law issue.  In ROI, an employee can complain externally to the Workplace Relations Commission and the Health and Safety Authority.  Equivalent courses of action are not available to employees in NI/UK.

A complaint to the Workplace Relations Commission: An Adjudication Officer of the WRC can conduct an investigation into the fairness of an investigation carried out by the employer.

A Report to the Health and Safety Authority: Where an employer fails to act reasonably in a bullying matter, the HSA has the power to take enforcement action, for example, by giving verbal advice, written advice, or issuing an Improvement Direction or an Improvement Notice.  The HSA can also, after investigation, forward a file, with recommendations, to the Director of Public Prosecution (DPP) for their decision as to the prosecution of employers where there is evidence that the employers have failed in their duty to protect employees from bullying.

The New Code stresses that “bullying” and “harassment” are two distinct concepts, and the Code solely addresses the question of workplace bullying.  That stated, the Code notes that an employer can have one policy document containing its policy and procedures in relation to both bullying and harassment. Key points in the Code are:

• The Code identifies the employer’s duty to act reasonably to prevent workplace bullying patterns developing and to resolve complaints.
• The employer must also prepare a Safety Statement under section 20 of the Safety, Health and Welfare at Work Act 2005 which includes bullying.
• It must also develop a proper workplace anti-bullying policy, in consultation with employees. This should include the Code’s three stage process: an initial informal process, a secondary informal process and a formal process.
• Employers have a duty to train managers, both those managing complaints and line management.
• Where possible, a Contact Person should be appointed whose role is to listen, and offer guidance on options in line with company policy and procedures, on a strictly confidential basis. The contact person will have no role in the investigation of any complaints.

Failure to follow a Code is not an offence in itself, however the Code is admissible in evidence in proceedings in the Labour Court or Workplace Relations Commission and where relevant will be taken into account in determining a matter.

The Right to Disconnect

Checking emails outside of working hours has become normal practice in many businesses.  The Code of Practice on the Right to Disconnect seeks to address this.  The Code states that

• Employees have the right not to routinely perform work outside normal working hours.
• Employees have the right not to be penalised for refusing to attend to work matters outside of normal working hours and
• There is a duty on employers and employees to respect another person’s right to disconnect, e.g. by not routinely emailing or calling outside normal working hours.

Employers should develop a Right to Disconnect Policy for employees and seek to implement this in the workplace.  In particular, employers should ensure that managers are aware of an employee’s working time entitlements and the right to disconnect.  Managers are encouraged to be active role models by openly supporting the policy.

Failure to adhere to the Code could result in increased awards of compensation both in the civil courts for matters such as personal injury complaints caused by bullying and/or stress, and in respect of complaints based on statutory rights such as working time, unfair dismissal (including constructive dismissal) and health and safety at work.

Changes to family leave

Under the Family Leave and Miscellaneous Provisions Act 2021:

• Parents leave increases from two weeks to five weeks.  During the leave eligible employees are entitled to Parent’s Benefit from the Department of Social Development.
• Adoptive leave is now available to same sex couples whereas previously it was only available to female adopters.
• Paternity leave is amended to ensure that a person cannot take adoptive leave where they have taken paternity leave in respect of the same child.

Coming up:

Sick Pay:  Currently there is no obligation on employers to pay sick pay.  Sick employees must claim illness benefit from the Department of Social Protection unless their employer has a company sick pay policy.   However, the government is to bring in statutory sick pay by the end of 2021.

Initially employers will be obliged to pay sick pay for three days of absence, starting in 2022, rising to 5 days in 2023 and 7 days in 2024. Employers will cover the cost of 10 sick days per year by 2025. It is being phased in to help employers plan ahead and manage the additional cost.

Sick pay due will be 70% of an employee’s wage, subject to a daily threshold of €110. The cap can be revised over time by ministerial order in line with inflation.

An employee will have to obtain a medical certificate to avail of statutory sick pay, and the entitlement is subject to the employee having worked for their employer for a minimum of six months.  Once entitlement to sick pay from their employer ends, employees who need to take more time off may qualify for illness benefit from the Department of Social Protection subject to PRSI contributions.

Right to request remote working

A Public Consultation has been undertaken on the introduction of a right to request remote work, following the National Remote Working Strategy, launched by the government in January 2021.  There is not yet draft legislation but Guidance on Working Remotely has already been published by the Department for Enterprise, Trade, and Employment.

Gender Pay Information bill 2019 is due to come into force end of 2021 and is to require employers to provide information on pay, bonuses and benefits in kind provided to men and women.

Organisation of Working Time (Reproductive Health Related Leave) Bill 2021 – If passed, the Bill will create an Act to provide for a period of paid leave consequent upon miscarriage or for the purposes of availing of reproductive healthcare, with protection from unfair dismissal.

If you would like to talk about any of the above, please contact a member of our team.

 

If an employer pays employees more than statutory maternity pay when on maternity leave, does this mean that the employer is also obliged to enhance pay for other types of family leave? 

In this article, we look at some of the other types of family leave and advise on what employers should consider regarding each type of leave.

The Equality Commission in Northern Ireland has issued new guidance on recruiting disabled people.  “Making it work” shares the personal stories of six individuals with different disabilities and their success in finding work.   There is also information on support available to individuals and employers to employ disabled people.

Research by Scope tells us that disabled people make 60% more applications than those without a disability before finding a job.  One in five people in Northern Ireland live with a disability and the employment rate for disabled people in Northern Ireland is 37.3%, which is the lowest figure across all of the UK regions.  However recruiting disabled people can create a workforce that reflects the range of customers it serves and the community in which it is based.

Employers who are keen to be truly “equal opportunity employers” can think about taking “outreach positive action”.   An example of this could be reserving a quota of jobs for disabled people, to the exclusion of people who are not disabled, or operating a “guaranteed interview scheme” for disabled job applicants.  Outreach positive action is lawful under the Disability Discrimination Act 1995.

Whilst outreach positive action is voluntary, reasonable adjustments are not.

Employers are under a legal duty to make reasonable adjustments.  Once an employer knows, or could reasonably be expected to know that an applicant is disabled, the obligation to consider reasonable adjustments is triggered, and the employer should consider this even if it has not been raised by the employee.   Remember that a disability can be physical or mental and can also be hidden.

Reasonable adjustments in recruitment could include providing information about the job and the application form in an alternative format, eg large print, Braille or as an audio file or providing extra time for an assessment.   The application form should contain space for candidates to provide information about any adjustments they may require during the recruitment process.

There are a range of organisations providing employability programmes for disabled people, for all areas of disability.  In addition, the Department for Communities provide a range of mainstream and specialist employment programmes to assist people to find work and provide in-work support.

Employers may be able to get help from Access to Work towards some costs where an individual requires support or adaptations. Access to Work can provide a grant to pay for the cost of the support, for example to provide special aids and equipment, adaptations to equipment, communication support at interview and support workers.

The Equality Commission publication is available at Making it Work – Employment Support Services for People with Disabilities (equalityni.org)

 

Uber has been unsuccessful at the Supreme Court in its appeal against a finding that the taxi drivers it supplies are “workers” within the meaning of employment legislation.

Uber argued that the taxi drivers providing its service were self employed contractors and that Uber is a booking agent, providing the drivers with access to the Uber app and payment services.  Uber provided the courts with documents, including a “Partner Agreement” and “Services Agreement” to evidence their argument that the drivers were self employed.

However, the Supreme Court said that the task for the tribunals and the courts was to determine whether the claimants fell within the definition of a “worker”, irrespective of what had been contractually agreed.

The general purpose of the relevant employment legislation is to protect vulnerable workers from being paid too little for the work they do or subjected to other forms of unfair treatment.

It would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in deciding whether an individual falls within the definition of a “worker”.

An employer is often in a position to dictate contract terms and the individual performing the work has little or no ability to influence those terms.  The effectiveness of the protection under employment legislation would be seriously undermined if the company could, by the way in which the relationship is characterised in the written contract, determine whether or not the individual is to be classified as a worker. Laws such as the National Minimum Wage Act were enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it.

This confirms that the claimant Uber drivers in this case are entitled to:

• 5.6 weeks’ paid annual leave each year
• a maximum 48 hour average working week, and rest breaks
• the national minimum wage (and the national living wage)
• protection of the whistleblowing legislation.

An employment tribunal had held in 2016 that Uber drivers were workers, and Uber unsuccessfully appealed this decision to the Employment Appeals Tribunal, the Court of Appeal and now the Supreme Court.  In deciding that the drivers were “workers”, the Employment Tribunal based its assessment essentially on the control Uber required to have over drivers, including the following:

1. Uber interviews and recruits its drivers.
2. Uber controls the key passenger information, including the trip destination, and excluded drivers from it.
3. Uber required drivers to accept trips and not cancel trips, and enforced this requirement by logging off from the App drivers who did so.
4. Uber dictates the route that must be followed by the driver.
5. Uber fixes the fare and the driver cannot negotiate a higher sum.
6. Uber imposes a number of conditions on drivers (including the standard of car they must use and quality standards).
7. Uber puts drivers through a rating system which effectively amounts to a performance/disciplinary procedure.
8. Uber dealt with customer refunds, sometimes without discussing the matter with the driver, when the driver’s income would be affected.
9. Uber handles customer complaints, including complaints about the driver.

The Supreme Court has confirmed what we knew; that where an individual claims to have worker or employment status, the tribunal will not look simply at the written documents, but at what happens in practice.   We can be sure that the Supreme Court decision will be quoted in  employment tribunal decisions on employment status in future.

It is important to correctly determine employment status to avoid unexpected liability for the minimum wage, holiday pay, income tax and employer national insurance contributions.

It is important also to bear in mind that from 6 April 2021, there will be a duty on employers to categorise the employment status of persons they engage under the IR35 rules.  From this date, the hirer/employer must decide whether that person is truly a self-employed consultant responsible for their own tax affairs, or whether the person is in fact and employee or worker, for whom PAYE and Employers National Insurance should be paid.   The new rules will affect medium and large organisations (turnover in excess of £10.2 million) in all sectors of the economy.

We are often asked by clients to review working arrangements and advise on employment status so if you are in any doubt about whether or not someone you engage can truly be said to be self-employed, please contact us.