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GDPR Privacy Notice for Subscribers to our Workwise Newsletter

WHAT IS THE PURPOSE OF THIS DOCUMENT?

Workwise Legal is committed to protecting the privacy and security of your personal information.
This privacy notice describes how we collect and use the personal information you have provided to us, in order to receive the Workwise newsletter, in accordance with the General Data Protection Regulation (GDPR).

Workwise Legal LLP is a “data controller”. This means that we are responsible for deciding how we hold and use personal information about you. We are required under data protection legislation to notify you of the information contained in this privacy notice.

The Members or Partners of Workwise Legal, together with our Consultants and Employees are also “data processors”, which means that we are responsible for processing personal information about you, on behalf of Workwise Legal.

This notice does not form part of any contract with you and we may update this notice at any time.

It is important that you read this notice, together with any other privacy notice we may provide on specific occasions when we are collecting or processing personal information about you, so that you are aware of how and why we are using such information.

DATA PROTECTION PRINCIPLES

We will comply with data protection law. This says that the personal information we hold about you must be:

  1. Used lawfully, fairly and in a transparent way.
  2. Collected only for valid purposes that we have clearly explained to you and not used in any way that is incompatible with those purposes.
  3. Relevant to the purposes we have told you about and limited only to those purposes.
  4. Accurate and kept up to date.
  5. Kept only as long as necessary for the purposes we have told you about.
  6. Kept securely.

THE KIND OF INFORMATION WE HOLD ABOUT YOU

Personal data, or personal information, means any information about an individual from which that person can be identified. It does not include data where the identity has been removed (anonymous data). We will collect, store, and use your personal contact details such as name, title and e-mail address.

HOW IS YOUR PERSONAL INFORMATION COLLECTED?

We collect the above information from you personally when you indicate that you wish to receive our Workwise newsletter, and provide your consent for us to add you to our newsletter subscription list.

HOW WE WILL USE INFORMATION ABOUT YOU

We will only use your personal information when the law allows us to. In this case, we will use your personal information to e-mail our Workwise newsletter to you, which typically happens once a month, but may occasionally be more frequent than that. We are relying on the following lawful reason to do this, permitted under the GDPR:

It is necessary for our legitimate interests (or those of a third party) and your interests and fundamental rights do not override those interests. In other words, it is our way of keeping in touch with you and remaining useful to you by providing regular news on employment law cases and developments.

CHANGE OF PURPOSE

We will only use your personal information for the purposes for which we collected it, unless we reasonably consider that we need to use it for another reason and that reason is compatible with the original purpose. If we need to use your personal information for an unrelated purpose, we will notify you and we will explain the legal basis which allows us to do so.

Please note that we may process your personal information without your knowledge or consent, in compliance with the above rules, where this is required or permitted by law.

AUTOMATED DECISION-MAKING

Automated decision-making takes place when an electronic system uses personal information to make a decision without human intervention. We are allowed to use automated decision-making in the following circumstances:

  1. Where we have notified you of the decision and given you 21 days to request a reconsideration.
  2. Where it is necessary to perform the contract with you and appropriate measures are in place to safeguard your rights.
  3. In limited circumstances, with your explicit written consent and where appropriate measures are in place to safeguard your rights.

You will not be subject to decisions that will have a significant impact on you based solely on automated decision-making, unless we have a lawful basis for doing so and we have notified you.

We do not envisage that any decisions will be taken about you using automated means, however we will notify you in writing if this position changes.

DATA SHARING

We may have to share your data with third parties, namely Mailchimp, which we use to prepare and distribute our newsletter, or other similar third party that we decide to use in the future for that purpose. We require third parties to respect the security of your data and to treat it in accordance with the law. We do not allow our third-party service providers to use your personal data for their own purposes, but only for the purpose of retaining our newsletter subscription list and distributing our newsletter.

We will also share your information with other members/partners, consultants, workers, volunteers and employees within Workwise Legal for the management of our newsletter subscription list. We have a Privacy Standard and Guidelines in place to ensure that your information is always processed in accordance with the law.

DATA SECURITY

We have put in place appropriate security measures to prevent your personal information from being accidentally lost, used or accessed in an unauthorised way, altered or disclosed. In addition, we limit access to your personal information to those employees, agents, contractors, consultants and other third parties who have a business need to know. They will only process your personal information on our instructions and they are subject to a duty of confidentiality.

We have put in place procedures to deal with any suspected data security breach and will notify you and any applicable regulator of a suspected breach where we are legally required to do so.

DATA RETENTION

We will only retain your personal information for as long as necessary to fulfil the purposes we collected it for, namely to stay in touch by providing you with our Workwise newsletter. If you decide you no longer wish to receive our newsletter, you can opt out by clicking on the ‘unsubscribe’ button on each newsletter, or by e-mailing Claire.Collinge@workwiselegal.com. We will make sure that you do not receive any further newsletters after that time and will remove your details from our subscription list within 1 month.

RIGHTS OF ACCESS, CORRECTION, ERASURE, AND RESTRICTION

Your duty to inform us of changes

It is important that the personal information we hold about you is accurate and current. Please keep us informed if your personal information changes so that we can update your details on our subscription list.

Your rights in connection with personal information

Under certain circumstances, by law you have the right to:

  • Request access to your personal information (commonly known as a “data subject access request”). This enables you to receive a copy of the personal information we hold about you and to check that we are lawfully processing it.
  • Request correction of the personal information that we hold about you. This enables you to have any incomplete or inaccurate information we hold about you corrected.
  • Request erasure of your personal information. This enables you to ask us to delete or remove personal information where there is no good reason for us continuing to process it.
  • You also have the right to ask us to delete or remove your personal information where you have exercised your right to object to processing (see below).
  • Object to processing of your personal information where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground. You also have the right to object where we are processing your personal information for direct marketing purposes.
  • Request the restriction of processing of your personal information. This enables you to ask us to suspend the processing of personal information about you, for example if you want us to establish its accuracy or the reason for processing it.
  • Request the transfer of your personal information to another party.

If you want to review, verify, correct or request erasure of your personal information, object to the processing of your personal data, or request that we transfer a copy of your personal information to another party, please e-mail Claire.Collinge@workwiselegal.com.

No fee usually required

You will not have to pay a fee to access your personal information (or to exercise any of the other rights). However, we may charge a reasonable fee if your request for access is clearly unfounded or excessive. Alternatively, we may refuse to comply with the request in such circumstances.

What we may need from you

We may need to request specific information from you to help us confirm your identity and ensure your right to access the information (or to exercise any of your other rights). This is another appropriate security measure to ensure that personal information is not disclosed to any person who has no right to receive it.

RIGHT TO WITHDRAW CONSENT

If you decide you no longer wish to receive our newsletter, you can opt out by clicking on the ‘unsubscribe’ button on each newsletter, or by e-mailing Claire.Collinge@workwiselegal.com. We will make sure that you do not receive any further newsletters after that time and will remove your details from our subscription list within 1 month.

DATA PROTECTION CONTACT

Claire Collinge is the partner responsible for data protection within Workwise Legal and will oversee compliance with this Privacy Notice. If you have any questions about this Privacy Notice or how we handle your personal information, please e-mail Claire.Collinge@workwiselegal.com. You have the right to make a complaint at any time to the Information Commissioner’s Office (ICO), the UK supervisory authority for data protection issues.

CHANGES TO THIS PRIVACY NOTICE

We reserve the right to update this Privacy Notice at any time, and we will provide you with a new privacy notice when we make any substantial updates. We may also notify you in other ways from time to time about the processing of your personal information.

Staying out of the heat (how to reduce the risk of sex discrimination claims based on dress codes)

Staff dress codes and the risk of sex discrimination is back in the news. Bus drivers in France are turning up for work in skirts in response to their employer’s refusal to allow them to wear shorts during the current heatwave. But what are the rules on dress codes and how do you reduce the risk of a sex discrimination claim? Here are 5 key points to keep you on track.

  1. Make sure that, taken as a whole, your dress code does not treat employees of one sex less favourably than the other. The fact that you require only male employees to wear a shirt and tie, for example, is unlikely to amount to sex discrimination provided the dress code for female employees is, overall, to achieve an equivalent level of smartness.
  2. Do not require female employees to wear high heels. This issue was the subject of much media coverage and a report by the House of Commons Petitions Committee and Women and Equalities Committee earlier in the year. It suggested that requiring female employees to wear high heels is likely to be harmful to their health and may therefore lead to a successful sex discrimination claim.
  3. If you relax your dress code policy over the summer months, make sure that the relaxed policy still applies to male and female employees equally, albeit that specific clothing requirements may be different. If female employees are allowed to have bare legs and sandals, for example, are your male employees allowed to have short-sleeved, open-necked shirts?
  4. Avoid confusion and issues arising by having a clear dress code policy in place. It is good practice to include an overarching requirement for all employees to dress in a professional and business like way, or to dress in a casual but tidy and presentable way, before listing the specific clothing requirements for each sex. That way, you are more likely to take care to ensure that the clothing requirements, overall, achieve an equivalent result for male and female employees.
  5. Get your employees on board. As with most things, if employees understand your reasoning and the consistency of your approach, they are more likely to accept your rules.If you need advice on dress code issues in your workplace or would like to get a policy in place, please get in touch.

    Claire Collinge
    Partner, Workwise Legal LLP

“The force is strong with this one” – Star Wars lessons in performance management

The story of Anakin Skywalker becoming Darth Vader in Star Wars is a great example of failures in performance management:

1. Boy with huge potential (Anakin) is recruited by large organisation (the Jedi)
2. Boy is given induction training and mentored by senior manager (Obi-Wan Kenobi)
3. Boy’s performance and dedication to the job begins to waiver
4. Senior manager fails to respond to the warning signs and manage the situation effectively
5. Boy turns into Darth Vader, joins a competitor (the Sith and the Dark Side) and seeks to destroy the organisation.

Whilst employees are unlikely to turn into Darth Vader, the possibility of an employee with potential becoming an obstacle to the success of a company, in terms of performance issues, is a real one. An employee who is dedicated, good at their job and keen to develop is an asset to a business, whereas an employee who regularly makes mistakes, is rude to customers or is unwilling to do certain tasks, can hamper your business development.

So what did Obi-Wan do wrong?

1. He failed to note the warning signs
2. He failed to have “difficult conversations” early enough
3. He failed to manage performance effectively.

In terms of spotting the warning signs, employers need to observe their employees. Is the employee starting to turn up to work late, to make mistakes, to ignore tasks that need doing? If yes, a conversation needs to be had with the employee in order to try and nip the problem in the bud. Ignoring the situation is unlikely to make it go away. This can be done informally, by having a closed door conversation regarding your concerns, exploring any reason behind the behaviour and reminding the employee of your realistic expectations (being careful to keep a note of that conversation).

Alternatively, or if things don’t improve, you can put in place a performance improvement plan (PIP) or attendance improvement plan (AIP), depending on the issue. This is simply a process of addressing concerns, setting a realistic target for improvement and then reviewing whether the target has been met, based on the evidence gathered.

Sanctions for non-achievement of the targets can move through different warning stages, but care must be taken to use a fair procedure, including a reasonable investigation, a meeting and the right of appeal at each stage.

Handled badly, performance management could give grounds for constructive dismissal or even discrimination in certain situations. However, fail to handle it at all, and you could turn an Anakin asset into a Darth Vader of an employee.

If you have any queries or concerns regarding performance management issues or need a performance improvement plan putting in place, please contact us.

Claire Collinge
Partner, Workwise Legal LLP

Employment contracts, policies and rules: 6 reasons why

Certain documentation is a legal requirement, whether you have 500 employees or 1. Employers must provide a written statement of terms and conditions within 2 months of an employee starting, and have a disciplinary and grievance procedure. However, there are other reasons why every employer should have good contracts, policies and rules in place:

  1. By having clear disciplinary rules, tailored to your business, you are able to avoid any misunderstandings about the sort of conduct which is and is not acceptable. Written disciplinary rules are your chance to make things clear from the start.
  2. If things do go wrong, disciplinary rules will make it easier for you to give a formal warning or dismiss without challenge along the lines of “I didn’t realise it wasn’t allowed”. If you are able to point to a clear rule which the employee has been made aware of, you will find the process more straight forward.
  3. Disciplinary and capability procedures help you act on concerns in a fair and consistent way. This reduces the risk of discrimination or unfair dismissal claims.
  4. A good equality policy will alert your employees to the different forms of discrimination and make clear that discrimination and harassment will not be tolerated. This reduces the likelihood of discrimination occurring and improves your chance of defending a claim in the Tribunal.
  5. Policies which are relevant and useful to your business help you to keep everything on track and reduce the likelihood of problems arising. For example, for a business with a social media presence or employees who are active on personal social media platforms, a good social media policy will reduce the risk of inappropriate postings in the business’s name and make sure that staff keep personal postings to break times.
  6. Being able to provide new employees with your written procedures, rules and policies will give them confidence in you as an employer and in your business as a good place to work.

Claire Collinge, Workwise Legal

Pancakes with confidence (the benefits of disciplinary rules, policies and procedures)

I have a confession. On Shrove Tuesday I shall be making my pancakes from a recipe. I’d much rather rely on experience and natural intuition, but pancakes generally happen once a year in our house and the consequences of getting it wrong (grumpy children and ridicule) are best avoided.  I know that a few rules will keep me on track.

For some employers, strict rules and written procedures can get a bad press, being viewed as the heavy handed domain of the corporate world.  However, I’ve had the pleasure to work with some relatively new businesses recently who have taken a different approach.  Born out of a passion to do something different, away from the corporate world, these businesses have one thing in common. They have all described wanting to create a relaxed, fun, working environment, to foster the individuality of their staff and to be a nice employer.  Alongside that, they have appreciated that the employment relationship needs some underlying rules and procedures to achieve best results.

Certain documentation is a legal requirement, whether you have 500 employees or 1. Employers must provide a written statement of terms and conditions within 2 months of an employee starting, and, as a minimum, have a disciplinary and grievance procedure in place. Putting the legal requirement to one side though, there are other practical reasons for having clear documentation in place:

  • By having clear disciplinary rules, tailored to your business, you are able to avoid any misunderstandings about the sort of conduct which is and is not acceptable. Whilst you might hope that some things are obvious, experience tells me that you might be surprised. Written disciplinary rules are a quick and painless way of making things clear from the start;
  • If things do go wrong, disciplinary rules will make it easier to give a disciplinary sanction or dismiss without challenge along the lines of “I thought it would be fine” or “I didn’t realise it wasn’t allowed”. Being able to point to a clear, written rule which the employee has been made aware of, makes things more straight forward;
  • Disciplinary and capability procedures help you address concerns in a fair and consistent way, reducing the risk of discrimination claims or grievances and reducing the risk of unfair dismissal claims;
  • A detailed equality policy is invaluable in reminding everyone what sort of action could amount to unlawful discrimination, whether it be towards another employee, a customer or other third party, and that such action will not be tolerated, again reducing the likelihood of discrimination occurring and improving your chance of defending a claim in the Tribunal;
  • By having policies which are relevant and useful to your business, you can help keep things on track and reduce the likelihood of problems arising. For example, for a modern business with a social media presence or an employer whose staff are naturally glued to their own social media platforms, a social media policy can help you maintain control over postings and ensure that staff keep personal postings for non-working time.
  • Being able to provide new employees with your written procedures, rules and policies will actually give them confidence in you as an employer and in your business as a good place to work.

So rather than signalling the end of the fun, non-corporate workplace that some businesses strive to achieve, savvy employers appreciate that getting a clear set of rules, policies and procedures in place will actually help develop the happy and committed team they want. More than that, it will help them be the relaxed and fair employer they set out to be.

Now roll on Shrove Tuesday. One pancake or ten?

Brexit – What might it mean for employment law?

Contrary to what some newspapers would have you believe, large parts of UK employment law do not have European origins. The right not to be unfairly dismissed is home grown, as are the national minimum wage and the right of trade unions to be recognised by employers if they can show a certain level of support in the workplace.

However large chunks of UK employment law do come from the EU: discrimination rights, the dreaded TUPE (which deals with business transfers), the Working Time Regulations and family leave all have EU origins. But would Brexit result in rights originating in EU legislation simply disappearing? We think not, for various reasons:

The legislation will still be there: the day after Brexit we will still have the Equality Act 2010 (which contains most of the UK’s discrimination law), TUPE, the Working Time Regulations and many other bits and pieces of legislation which have EU origins (in whole or part). The government will have to repeal the legislation for big changes to occur.

The politics of change: the much derided Working Time Regulations contain the right to 5.6 weeks’ holiday. Is any government going to legislate to do away with employees’ rights to paid holiday? Probably not. UK legislation already gives more holiday than EU law requires and there has been no suggestion since Labour lost power in 2010 that holiday rights might be trimmed. We’ll be more likely to see tinkering around the edges, for example in relation to how holiday pay should be calculated.

Society has moved on: it’s not easy to envisage any political party including a commitment to “make age discrimination legal” or “legalise sexual harassment” in its 2020 manifesto.

The UK’s new deal with Europe: it’s fairly clear that, whatever the outcome of the UK’s negotiations with the EU, the UK is not going to be able to “have its cake and eat it”. The UK’s deal with the EU after Brexit may well prevent a wholesale junking of employees’ rights.

So, overall, yes we think there will be change, but nowhere near as much as either Leave or Remain would have had us all believe before last Thursday’s vote.

Paul Evans
Partner, Workwise Legal
@WorkwiseNorth

How to make a parachute (tips on getting the most out of the National Living Wage)

Few employers will relish the prospect of an increased wage bill this month, owing to the implementation of the National Living Wage.  An additional 50p an hour for workers aged 25 and over will be a significant increase for businesses who pay the minimum wage and have some 25 plus workers in their organisation.

But is it possible for employers to make a virtue of this sort of necessity or is it more a case of not being able to make a silk purse out of a sow’s ear?  Can employers still distinguish themselves in terms of how they deal with the National Living Wage, even if they are paying the same basic amount?

Here are a few tips to help employers make the best of it:

  • Make sure you understand the legal requirement. As well as the new rate of pay, make sure you are clear about what can and can’t be taken into account in calculating the worker’s minimum wage.  For example, tips and gratuities cannot form part of a worker’s hourly pay rate, whether they are paid through payroll or direct from customer to worker.  Make sure you also understand what time is working time, for which the minimum wage must be paid.  There is new BIS Guidance to help with this.
  • Be upfront about the increase in pay. Employees are legally entitled to written confirmation of a change to their pay rate, at the earliest opportunity and at least within a month of the change taking effect.  Why not use this as an opportunity for positive communication with the relevant employees?  It will still be good news to them, even though it is mandatory.
  • Don’t shoot from the hip. There has already been negative media coverage and allegations of some big businesses, such as Café Nero and B&Q, responding to the increase by cutting other staff benefits.  Although changes might be necessary in the future, depending on the size of business and the increased wage bill, that sort of immediate response is at best likely to fuel distrust and cynicism within your workforce and at worst result in legal claims against you.  Changes to terms and conditions cannot be made without the employee’s agreement unless there is a dismissal and offer of re-engagement on the new terms, which in itself opens up the possibility of unfair dismissal claims whether or not the offer of re-engagement is accepted.
  • Don’t seek to recruit workers below the age of 25 in order to avoid paying the National Living Wage or avoid giving older zero-hours workers the same amount of work. This may expose you to claims of age discrimination.
  • Consider the possibility of some team-building (whether through a work social event or simply catch-up meetings with employees or the workforce as a whole). This should enable you to maximise the positive effect of the pay rise for those benefiting from it, in terms of staff loyalty, morale and effective working, and help smooth out any niggles or resentment from other staff members.
  • Take time to reflect. As well as avoiding knee-jerk reactions to the change, take time to consider possible reactions from other quarters and be prepared to address concerns.  For example, be aware that more senior employees in supervisory or managerial roles may have seen the pay gap between them and members of their team reduce as a result of the National Living Wage.

As in all aspects of employment law, the way an employer responds to a mandatory requirement can differ, with different consequences.  Whilst all employers whose workers are 25 or over have to pay them at least £7.20 an hour, an employer who deals with the National Living Wage in a positive way may be able to navigate a softer landing when they arrive at that destination, even if their parachute is not made of silk.

Claire Collinge
Partner, Workwise Legal
@WorkwiseNorth


 

Case law take-away: British Gas v Lock (holiday pay)

This aims to be a bite-sized summary of the headlines to take away from yesterday’s Employment Appeal Tribunal decision on holiday pay in the case of British Gas v Lock. Aimed at employers rather than legal practitioners. Minimum case detail and legal analysis is intended.

The alarm bell:

Calculating holiday pay for employees and workers whose pay includes commission based on results achieved, as well as basic pay. (The worker in this case was a sales person for British Gas who earned commission based on how many contracts he got customers to sign up to).

The take-away:

Regulation 16 of the Working Time Regulations entitles workers to be paid for their 5.6 weeks’ annual statutory holiday at the rate of “a week’s pay”. The calculation of “a week’s pay” for this purpose is set out in the Employment Rights Act 1996. The EAT in Lock has decided that the relevant sections of the Employment Rights Act can be (and therefore must be) interpreted in such a way that 4 weeks of annual holiday pay for workers who earn commission based on results achieved must include payment to represent the commission they would have earned had they been at work.

This follows on the heels of the previous EAT case of Bear Scotland in which the EAT decided that our domestic legislation could be (and therefore must be) interpreted in such a way that 4 weeks of annual holiday pay for workers who carried out non-guaranteed overtime (i.e. overtime which the employer was not obliged to provide but which, if it was offered, the worker was required to carry out) must include payment to represent the overtime pay they would have earned had they been at work.

These decisions are based on the fact that the European Court had previously decided that, under the Working Time Directive, workers must receive their normal remuneration for periods of holiday. To receive less might deter workers from taking holiday. The commission received by Mr Lock was linked to the work he was required to carry out under his contract of employment and therefore formed part of his normal pay for work done.

In practice:

  1. Employers should check that any workers who receive commission or payment for non-guaranteed overtime on top of their basic pay are receiving the correct amount of holiday pay.
  2. Those workers’ holiday pay should be calculated by reference to their average earnings, including commission payments and/or payments for non-guaranteed overtime.
  3. Although still not entirely clear, it is likely that Tribunals will expect that average to be calculated by reference to the 12 week period prior to the holiday being taken. (If no pay was received during any of those 12 weeks, earlier weeks should be taken into account to make up the 12 week calculation period). However, if that 12 week period does not create an average which is representative of normal pay, it may still be open to challenge on the grounds that a longer reference period ought to have been used. Time will tell how the Tribunals address that issue in practice.
  4. The holiday pay for workers who earn commission and/or receive payment for non-guaranteed overtime will almost certainly vary from holiday period to holiday period.
  5. The requirement to include payments for commission and/or non-guaranteed overtime only applies to a worker’s 4 week holiday entitlement which stems from the European Working Time Directive. It does not apply to the additional 1.6 weeks which workers in this country are entitled to receive under our domestic Working Time Regulations and any contractual holiday entitlement in excess of that (albeit that an employer can obviously choose to apply the higher calculation for all).
  6. It would be good practice for employers to state in the employment contract which holiday is taken first in the holiday year, i.e. the 4 week European entitlement or the 1.6 week domestic entitlement and any other contractual entitlement. There are tactical reasons for doing so.
  7. Overall, the calculation of holiday pay for some employers is likely to become more complicated and result in an increase in existing holiday pay wage bills.

The consequence:
Employers who fail to pay the correct amount of holiday pay risk Tribunal claims for unlawful deduction from wages and breach of regulation 16 of the Working Time Regulations. Workers can claim up to 2 years’ outstanding holiday pay via an unlawful deduction from wages claim, albeit that there may be arguments to be had that parts of the claim are out of time.
If you have concerns or queries regarding the correct calculation of your workers’ holiday pay, please get in touch.
Claire Collinge
Partner, Workwise Legal LLP

Day-to-day activities for Major Tom

Space Oddity has had quite a revival in our house, not in tribute to David Bowie but rather in homage to the work of Tim Peake on the ISS and a school space project. (Bowie’s version loses out to the one performed by astronaut Chris Hadfield on the ISS with his moustache and floating guitar every time). It’s hard to imagine a more out of the ordinary working life, but query whether some tasks still become relatively ‘normal’ or ‘everyday’ for the astronauts within the isolated context of the Space Station?

The recent disability discrimination case of Banaszczyk v Booker brought the concept of typical and unusual work into focus and specifically whether professional or work tasks can be “normal day-to-day activities” in the context of the statutory definition of disability.

In order to be a disability, the Equality Act requires a physical or mental impairment to have a substantial and long-term adverse effect on the person’s ability to carry out “normal day-to-day activities”. In the recent case, the employee’s bad back only affected his ability to carry out manual handling of items weighing up to 25kg at work. On that basis, the Employment Tribunal had decided that it did not have the necessary adverse effect, as those work activities were not “normal day-to-day activities”.

The EAT decided the case differently. With reference to EU law and the previous EAT case of Paterson, the manual handling as part of the employee’s working life was a “normal day-to-day activity”. The focus had to be on the individual and the activities considered to be “day-to-day” within their professional life, rather than in comparison to the population as a whole. If not, there would be no assistance for workers whose disabilities hindered their ability to progress or achieve promotion in their chosen field.

Interestingly, the EAT also commented that the current exclusion of “highly specialised” activities from the meaning of “day to day activities”, set out in the Guidance on the definition of disability (2011), might not be correct in the employment context. In the employment context, the interpretation of “disability” in the Equality Act must be applied in a way which gives effect to EU law, and recent ECJ cases have confirmed that the concept of disability must be understood as referring to a hindrance to the effective participation of the worker in professional life on an equal basis with other workers (with no reference being made to excluded categories of work).

Although not legally binding on that point, the EAT’s comment perhaps marks the start of a countdown to change and a widening of the “day-to-day activities” concept in the near future. In practical terms, it means that now is probably not the time for employers to disregard their Equality Act duties just because a worker’s physical or mental impairment only affects part of their professional life. The requirement to make reasonable adjustments might still apply, as the Tribunals start to view “normal day-to-day activities” through the other end of the telescope and see the worker’s professional world as an entity with its own norms.

Claire Collinge
Partner, Workwise Legal
@WorkwiseNorth

Case law take-away: Griffiths v The Secretary of State for Work and Pensions

This aims to be a bite-sized summary of the headlines to take away from the recent Court of Appeal case of Griffiths v The Secretary of State for Work and Pensions. Minimum case detail is intended.

The alarm bell:

Employees who may have a disability and whose sickness absence is reaching triggers for disciplinary sanctions within the company’s absence management procedure.

The take-away:

An employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that an employee has a disability and there is a provision, criterion or practice which places them at a substantial disadvantage in comparison with employees who are not disabled. That duty applies to sickness absence procedures, even though, on the face of it, those procedures apply to all employees equally.

In practice:

  1. Employers must be alert to the possibility that an employee’s illness or condition may amount to a disability under the Equality Act 2010.
  2. If so, consideration should be given to whether there are adjustments which it would be reasonable to make to an absence management procedure, such as the postponement of warning triggers.
  3. Only reasonable adjustments which would alleviate the disadvantage suffered are required to be made. A Tribunal will determine what is reasonable based on the facts of the specific case. (In the circumstances of the Griffiths case, revoking the warning was not considered to be reasonable, but it might be in a different case, for example where it related to a single period of disability-related absence).
  4. It is good practice for employers to record in writing their discussions and consideration of reasonable adjustments (including the basis on which any adjustment was not considered reasonable to make, if applicable).
  5. The risk of a separate form of disability discrimination, particularly unfavourable treatment arising in consequence of the employee’s disability, should not be forgotten. Even if an adjustment was not required to be made, on the basis that it would not be reasonable in the circumstances, an employer might still fall foul of the Equality Act if the imposition of a warning under the absence management procedure amounted to less favourable treatment for a reason arising from disability. An employer also therefore needs to be confident that it would be able to defend such action by showing that the treatment was a proportionate means of achieving a legitimate aim in the particular circumstances of the case.

The consequence:

Employers who apply absence management procedures without sufficient regard to the duty to make reasonable adjustments, as well as other potential forms of discrimination, may risk disability discrimination claims being brought for compensation (including compensation for injury to feelings) under the Equality Act.

Claire Collinge
Partner, Workwise Legal LLP