There has been an interesting variety of cases since my last Newsletter but the headline is the extension, on 30th June, of the right to request flexible working, which now covers all employees who have competed six months of employment. It should be stressed that this is simply a right to request, and that employers will still have the right to refuse the request based on a number of specified criteria. More details of the new rules are set out below.
Darryl Evans
T: +44 (0)7771 725341
E: dfe@evansemployment.co.uk
The Flexible Working Regulations 2014, which came into force on 30th June, extend the right to make a request for flexible working to any employee who has been employed for 26 weeks (not just parents of children under 17, or 18 if disabled, and certain carers - as was previously the case).
The basic right to request is unchanged although the procedure has been simplified. Employees can make up to one written request every year. The employer needs to deal with it within three months, and can refuse on any of eight specific but wide business grounds. The maximum compensation for a failure to comply is eight weeks' pay (currently capped at £464 per week).
Acas has published a new Code of Practice: 'The right to request flexible working: an Acas guide'. The Code (and adherence to it) will be taken into consideration by employment tribunals when appropriate. In that context it is surprising to see the Code refer to the need for an employer to look at the benefits for the employee of the change as part of the process for making its decision - the impact on the employee forms no part of the Regulations. It will be very interesting to see how Tribunals deal with this.
In the European Court of Justice case of Kaltoft v Municipality of Billund (C-354/13) the Advocate General has given the opinion that obesity may amount to a disability for the purposes of the EU Equal Treatment Framework Directive. It would have to be so 'severe' as to have a real impact on the employee's ability to participate in work (which he suggested may mean having a body mass index of more than 40). We await the decision of the full Court, as this is purely the Advocate General's opinion which the Court will consider as part of its judgment.
There has been a debate for some time as to whether obesity could amount to a disability which makes this opinion less surprising. As a result of the definition of a disability under the Equality Act and a number of reported cases, a Tribunal will look mainly at the effect of the claimant's state of health, rather than the cause. Therefore, if an obese employee's activities are severely restricted by their condition, they are likely to be held to be disabled, in which case reasonable adjustments would need to be considered.
An employee has the right not to suffer discrimination on the basis of their association with a disabled person. However, in Hainsworth v Ministry of Defence (2014 EWCA Civ 763) the Court of Appeal has decided that that does not extend to imposing an obligation on the employer to make reasonable adjustments.
So Ms Hainsworth, a civilian employee of the armed forces and based in Germany, was not entitled to transfer her employment to the UK in order for her daughter, who suffered from Downs Syndrome, to access specialist education and training facilities.
If an employee decides to resign from their employment and then claim that they have been unfairly constructively dismissed due to a fundamental breach of contract by the employer, it is important that the employee does not delay their resignation, in case that delay is held to amount to an affirmation by the employee of the contract of employment, thereby negating the breach.
In the case of Chindove v Morrisons Supermarkets (UKEAT/2014/0201) the employee suffered two acts of racial discrimination at work, which the HR manager ultimately failed to investigate adequately, all of which the Employment Tribunal decided amounted to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal. However, the employee had affirmed the contract because the breach occurred some six weeks before the employee's resignation (during which six week period the employee was on sick leave).
On appeal, the Employment Appeal Tribunal (EAT) held that a six week delay on its own did not indicate that the employee has affirmed the contract. What the Tribunal should have done was to take into account all of the circumstances which arose between the employer's breach and the employee's resignation (including the sickness absence) in order to decide whether the employee had affirmed the contract or not.
The EAT has upheld a tribunal decision that a clause entitling an employer to deduct a month's salary for failure to work their required notice period was not a penalty. The deduction was in addition to the employee not receiving their notice pay.
The EAT held that a tribunal had been correct to conclude that the relevant clause was a genuine pre estimate of loss rather than a penalty and was therefore enforceable. (Yizhen Li v First Marine Solutions and another UKEAT/0045/13.)
In Betsi Cadwaladr University Health Board v Hughes (UKEAT/2014/0179) Ms Hughes was a senior nurse who contracted Parkinson's disease and could no longer carry out clinical work. A non-clinical post was created for her, helping to develop the nursing service, and her grade and pay were maintained.
As the disease progressed, her employer gradually removed elements of her role which they felt she was no longer able to carry out, but without consulting her at any point. They said they did not want to embarrass her by suggesting that she was no longer able to carry out certain roles. So they appear to have reduced her activities with the best of intentions, trying to maintain her in employment for as long as possible.
Over a period of about five years, her role was reduced to managing the stacking of boxes. Eventually she went off sick with stress, did not return to work and was dismissed two years later.
In order to succeed with a claim of harassment related to her disability, Ms Hughes had to prove that the employer's conduct was unwanted and had the purpose or effect of violating her dignity or of creating a demeaning environment.
Looking at the events overall, the Employment Tribunal, and subsequently the EAT, decided that in allowing the gradual reduction in the employee's duties, the employer had been guilty of conduct which violated Ms Hughes' dignity and therefore constituted unlawful harassment, even though there was no intention to harass.
What this case highlights is the importance of consulting with employees in situations where their health is impacting their ability to carry out their role, and always attempting to agree a way forward with that employee.
As you are all aware, it is no longer possible to retire employees at any specific age, unless the employer can objectively justify its decision. Most employers have therefore abandoned compulsory retirement ages, but they will be interested in the outcome of the long running case of Seldon v Clarkson Wright & Jakes (UKEAT/0435/13).
In it, the EAT has now held that 65 was an appropriate age for a firm of solicitors to compulsorily retire one of its partners. It was necessary to balance the discriminatory effect of choosing a particular retirement age against its success in achieving the legitimate aims of the employer. On the evidence before it, the EAT held that a retirement age of 65 was justified in light of the legitimate aims identified. Those aims were employee retention, planning and (with some caveats) collegiality, all of which sought to achieve inter-generational fairness and dignity at work.
This should not lead to a rush of employers imposing compulsory retirement ages, because every case will depend on its own facts, and it will remain risky, and invite challenge, to go back to the days of compulsory retirement. Specific types of business, such as professional services firms, however, which feel a compelling business need to retire senior staff at a certain age, will find this decision helpful.
The Small Business, Enterprise and Employment Bill 2014 includes a proposed ban on exclusivity clauses (which prevent an individual from working for another employer, even when no work is guaranteed) in zero-hour contracts.
The government will consult further on how to prevent evasion of the ban (which, on its face, could be circumvented by offering one-hour contracts rather than zero-hour contracts). It will also work with unions and employers to develop a best practice code of conduct for the use of such contracts.
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