02/10/2018
Welcome to the September 2018 edition of our employment law report: our monthly round-up of key employment law developments and what they mean for you.
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Featured case |
Alastair Currie looks at Mutombo-Mpania v Angard Staffing Solutions which considers if an employer can be assumed to know an employee is disabled, if they deny having a disability? And how specific does a claimant have to be about their condition in order to prove that they are disabled? |
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Briefing |
Overseas recruitment after Brexit – what's in store? Ashley Norman summarises an important report which gives the clearest indication yet of how employers will source their foreign workforce, post-Brexit. |
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News round-up |
Employment news round-up, September 2018 Julian Hoskins rounds up this month's employment law in brief, which includes: the latest developments on combatting sexual harassment in the workplace, new parental bereavement leave, a Brexit update and employment tribunal trends. |
Proving disability
Alastair Currie looks at Mutombo-Mpania v Angard Staffing Solutions, a case which considers if an employer can be assumed to know an employee is disabled, if they deny having a disability? And how specific does a claimant have to be about their condition in order to prove that they are disabled?
The background
In order to qualify for protection from disability discrimination under the Equality Act 2010 ('the Act'), a claimant must first prove that their condition is sufficiently serious to fall within the Act's definition of 'disability'.
A 'disability' under the Act is defined as an impairment which has a substantial and long term adverse effect on the claimant's ability to carry out normal day to day activities.
It is the claimant's responsibility to prove to a tribunal that they suffer from a 'disability' under the very specific meaning in the Act.
It is also necessary for a claimant to show that the alleged discriminator knew, or ought reasonably to have known, that they were disabled.
In this case, the Employment Appeal Tribunal considered the extent to which an employer is taken to have knowledge of an employee's disability, and how far a claimant must go to prove that they are disabled within the meaning in the Act.
The facts
The claimant, Mr Mutombo-Mpania, worked for Angard Staffing Solutions ('Angard') on a flexible basis, which involved undertaking some night shift work.
Mr Mutombo-Mpania suffers from Essential Hypertension, which means that he suffers from permanent high blood pressure and other ailments, such as dizzy spells, breathing difficulties, headaches and fatigue. Mr Mutombo-Mpania therefore argued that he was not able to work night shifts, as a result of his hypertension, which he claimed at tribunal amounted to a disability.
However, on his application form for his role, and on a health questionnaire, Mr Mutombo-Mpania stated that he did not suffer from a disability. He did, however, later refer to his "health condition" in correspondence with Angard, and failed to attend for night shift work on a number of occasions.
Angard informed Mr Mutombo-Mpania that they no longer wanted him to work for them, and he claimed that this amounted to disability discrimination.
An employment tribunal found that, whilst the failure to attend work and the reference to a 'health condition' meant that Angard should have made further enquiries, it did not mean that Angard knew, or should have known, that Mr Mutombo-Mpania suffers from a disability.
The tribunal also found that Mr Mutombo-Mpania failed to provide cogent evidence of whether his condition amounted to a disability for the purposes of the Act. His claims therefore failed.
Mr Mutombo-Mpania appealed.
The decision
The Employment Appeal Tribunal (EAT) upheld the employment tribunal's decision.
The EAT agreed with the tribunal that Mr Mutombo-Mpania had not done enough to show that his condition amounted to a disability. There was no evidence before the tribunal of what activities included in night shift work were more difficult for him because of his condition.
The EAT went on to say that Mr Mutombo-Mpania needed to show that there was a link between his symptoms and the ability to undertake work for his employer; it was not enough to refer generally to 'headaches' and 'tiredness'. This does not prove a substantial adverse effect on day to day activities.
In terms of Angard's knowledge of Mr Mutombo-Mpania's disability, the correct starting point was the application form and health questionnaire, and this directed Angard towards being unconcerned about any impairments. Once it became apparent that the claimant suffered from a 'health condition', then Angard should have made further enquiries, but this failure was not the same as having constructive knowledge of disability.
What does this mean for me?
This is a robust decision by the EAT, and employers will welcome the fact that it has confirmed that claimants must comply with a fairly high standard of proof of their disability: vague statements about ill health, coupled with a failure to attend at work will not be enough to put an employer on notice of a disability.
Furthermore, claimants must clearly show that their condition has an impact on their ability to carry out day to day activities; this cannot simply be assumed and vague statements about generalised ill health will not be sufficient.
It is interesting to note that in the judgment, the EAT approved of the concept that night shift work is a 'normal' activity for the purposes of defining 'disability' under the Act, albeit that it is a working pattern which is undertaken by a minority of the working population. The EAT pointed out that it is a pattern of work which is common in several sectors, including healthcare, emergency services and hospitality.
Overseas recruitment after Brexit – what's in store?
Ashley Norman summarises an important report which gives the clearest indication yet of how employers will source their foreign workforce, post-Brexit.
The Migration Advisory Committee (MAC) published its report on migration in the UK on 18 September 2018.
The full report can be downloaded here.
The MAC advises the government on immigration policy, and its recommendations are usually followed. It was reported in the press last week that the MAC had presented its findings to cabinet and that the government has approved its recommendations.
Subject to the extent to which immigration issues feature in our withdrawal agreement with the European Union, it is likely that the MAC report will form the blueprint for the UK's immigration policy post-Brexit.
The headline recommendations are as follows.
- After we have withdrawn from the European Union, there should be no preferential treatment of workers from the European Union.
- The migration process for higher-skilled workers should be easier than for lower-skilled workers.
- The cap on Tier 2 (General) immigration should be abolished.
- Tier 2 (General) immigration should be opened to all jobs at Regulated Qualifications Framework (RQF) level 3 and above.
- The level of the Immigration Skills Charge should be reviewed, but should remain in place.
- The Resident Labour Market Test should either
- be abolished; or
- the salary threshold for exemption from the RLMT should be reduced.
- Sector based schemes for lower skilled workers should be avoided.
- The Tier 5 Youth Mobility Scheme should be extended in order to accommodate the need for lower skilled workers.
Higher skilled migration
The MAC report recommends that it should be easier for higher skilled workers to migrate to the UK. This would mean a streamlining and reduction in the administrative requirements for applications under Tiers 1 and 2.
Future migration status for EU workers
In line with government rhetoric on the position of workers from the EU in comparison with workers from the rest of the world, the report recommends that EU workers should not be given preferential treatment on migration. The extent to which this recommendation is implemented may, however, depend on the extent to which the migration of EU workers is dealt with in our withdrawal agreement from the EU. However, it may well come to the fore if we exit from the EU without an agreement in place.
Abolition of the Tier 2 (General) annual cap
This cap limits migration to 20,700 non-EU skilled workers per year, for roles attracting salaries of less than £159,600 gross a year (the higher earner rate).
The justification for this proposal is the government's stated strategy of attracting higher-skilled workers into the UK economy and providing more certainty for employers. This proposal would sit alongside reform of the Resident Labour Market Test, in order to facilitate easier access to skilled workers.
Extension of Tier 2 (General)
In order to avoid a shortage in the supply of labour, the MAC report recommends that the Tier 2 (General) immigration category should be opened up to all jobs within the Regulated Qualifications Framework (RQF) level 3 and above. Currently, the skills level for jobs under Tier 2 (General) and Tier 2 (ICT) is RQF level 4 and RQF level 6 (graduate level jobs).
Immigration Skills Charge (ISC)
There is no indication that the ISC will be removed, which is currently set at £1,000 / £364 per year per worker, depending on the size and type of employer.
However, the MAC report suggests that the effect and level of the ISC is evaluated and that it should apply across the board, to include EU workers, after Brexit.
Resident Labour Market Test under review
In brief, the Resident Labour Market Test (RLMT) requires employers to advertise a job to the UK workforce for four weeks before they can sponsor a skilled migrant. The operation of the RLMT is criticised by the MAC report as being a bureaucratic exercise, with little practical benefit for the UK economy.
The MAC report recommends the RLMT is abolished, or amended so that it would no longer apply to roles attracting a salary of less than £50,000 per year.
Access to low-skilled migrants
The MAC report advises against introducing sector based schemes for low-skilled migrants, except potentially in relation to seasonal agricultural workers.
As an alternative, the MAC report recommends extending the Youth Mobility Scheme, which allows nationals from a limited number of countries to work in the UK for up to two years, with no need for sponsorship. The administrative burden for employers is low, and the framework for the system is set up, so it is anticipated that this could work well as a source of a lower-skilled workforce with little administrative burden.
Comment and next steps
Although the MAC report gives a strong indication of the direction of travel for post-Brexit immigration legislation, there are still a number of unknowns, the most significant of which is the impact of the withdrawal agreement; negotiations could mean that there will still be a 'light touch' immigration policy for EU migrants post-Brexit. However, under current proposals, it looks likely that employers will need to make more sponsorship applications in future; although this may be offset by increased access to low-skilled workers under an expanded Youth Mobility Scheme.
Employment news round-up, September 2018
Julian Hoskins rounds up this month's employment law in brief, which includes: the latest developments on combatting sexual harassment in the workplace, new parental bereavement leave, a Brexit update and employment tribunal trends.
What's next for #MeToo?
In response to the wave of sexual harassment allegations that have dominated the headlines this year, the government's Women and Equalities Committee has made a number of recommendations designed to strengthen prevention of sexual harassment in the workplace. The recommendations in the Committee's report are wide ranging but, in general, the report recommends that there should be a shift in focus in respect of preventing sexual harassment, so that employers are required to take a more proactive approach. The report also recommends strengthening the enforcement regime – for example, re-introducing the questionnaire procedure and the ability to bring a claim for third party harassment – and also suggests that non-disclosure agreements should be more tightly regulated. It remains to be seen which, if any, of the report's recommendations are taken up by government.
In the meantime, if you are looking to update or introduce training for your workforce, in order to minimise your exposure to sexual harassment claims and compensation, please click here for details of training which Bevan Brittan provides at a range of levels.
Parental Bereavement Leave and Pay moves a step closer
As anticipated, the government has introduced new legislation which clears the path for the introduction of a new right to parental bereavement leave and pay. This will enable parents to take two weeks paid leave in the event of the death of their child under the age of eighteen. The legislation is called the Parental Bereavement (Leave and Pay) Act 2018, and can be found here. However, it is expected that the regulations giving effect to this right will not be in place until April 2020. The draft regulations have not yet been published.
Change of name for Public Concern at Work
The 'whistleblowing' charity, Public Concern at Work, has changed its name to 'Protect'. The charity campaigns on issues relating to raising concerns at work, and provides advice and training on 'speaking up' on concerns about malpractice at work.
Employment tribunals – current trends
The Ministry of Justice has published the latest employment tribunal statistics, showing the current volume of claims and average awards. The upward trajectory of the volume of claims has been sustained, with claims up by 165% compared with the same quarter last year. Headline figures are
- the average award for an unfair dismissal claim was £15,007
- disability discrimination claims attracted the highest average awards, at £30,700
- and the lowest average awards were for religious discrimination claims, which averaged at £5,100.
Notice and resignation – not always the same…
A recent case in the Employment Appeal Tribunal (EAT) provides a useful reminder that an employee's notice must be clear and unambiguous. In a case called East Kent Hospitals v Levy, an employee issued 'notice' from her existing role in order to move into a new role within the same organisation. When that offer was withdrawn, the EAT found that the employee had been unfairly dismissed when the employer refused to allow her to retract her 'notice', as it was clearly ambiguous and it was not reasonable to interpret the employee's words in that way.
New Acas guidance
- References
Acas has published new guidance on references, which provides basic reminders of the key legal issues, such as whether an employer has to provide a reference and whether it is possible to give an employee a 'bad' reference. As the guidance highlights, the important question from a legal perspective is not whether the reference is good or bad, but whether it is accurate and fair.
- Suspension
Acas has published new guidance on suspension which reminds employers of key points to bear in mind when considering and implementing a suspension, whether for disciplinary reasons or for health and safety reasons related to maternity.
Concealing discrimination as 'redundancy'
In a case which provides a stark warning to those who attempt to 'window dress' discrimination as an engineered 'redundancy', the Employment Appeal Tribunal has confirmed that this will result in any such discussions being disclosed to a tribunal. Normally, correspondence or discussions with your lawyer about a dispute with an employee are withheld from tribunal hearings on the basis that they are protected by legal advice privilege between a lawyer and their client. However, in X v Y Limited, the Employment Appeal Tribunal allowed such correspondence to be produced to an employment tribunal, where the employer was seeking advice on 'cloaking' the dismissal of an employee who had raised allegations of disability discrimination. Obviously such cases are very fact specific but on this occasion, the tribunal found that this was a case of clear inequity, and therefore the parties should not be allowed to benefit from the protection of legal advice privilege.
Transfer of a public health team – potentially covered by TUPE
In a case which will be of interest to anyone who is dealing with transfers of staff from the NHS to local authorities, the Employment Appeal Tribunal (EAT) has said that the transfer of a public health team from a Primary Care Trust to a local council was potentially capable of being covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). In Nicholls v London Borough of Croydon, the key question was whether the transfer of staff was
- a transfer of an "economic entity" (under regulation 3(1)), or
- fell within the "administrative functions" exclusion in regulation 3(5).
As private sector organisations were able to offer services in the same market, the EAT concluded that there was a possibility that there was a transfer of an economic entity, and the tribunal's examination of that point was inadequate. The case was sent back to tribunal to be re-examined. Therefore, this case does not provide binding guidance on the application (or not) of the 'administrative function' exemption in these circumstances, but it provides useful commentary and a summary of the relevant principles under TUPE.
Revised Home Office guidance on right to work checks
The Home Office has released an updated version of its Employer's Guide to Right to Work Checks.
Key changes include the following.
- Details of what employers should do if it comes to light during a check procedure that a prospective employee has presented information indicating they are a non-EEA national who has been a long-term lawful resident of the UK since before 1988, and does not possess acceptable right to work documentation.
- Existing employees: clarification on steps to take.
- TUPE: updated guidance on the 'grace period' in the case of TUPE transfers.
Brexit news
- Legislation post-Brexit
In line with expectations, it continues to seem unlikely that our withdrawal from the European Union will have a significant impact on the employment law landscape, at least in the short to medium term.
The government has published its White Paper on the Future Relationship between the United Kingdom and the European Union. The paper states that the UK is committed to "the non-regression of labour standards" and will uphold obligations that derive from our International Labour Organization commitments". This means that rights available to employees which were derived from EU employment legislation will remain in place once the UK has withdrawn from the European Union.
The government has also published a technical note about what happens to workplace rights in the event that the UK leaves the European Union without having entered into a withdrawal agreement. The note can be downloaded here and, again, confirms that UK employment legislation which is derived from the EU will remain in force post-Brexit. Apart from minor amendments to wording, to reflect the fact that Britain is longer part of the EU, there will be no substantive change to EU derived employment legislation.
Whether the UK government will chose to repeal, or amend, such legislation in the longer term remains to be seen, but key areas of legislation which would be likely targets for reform would include the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the Working Time Regulations 1998, discrimination compensation and collective consultation requirements.
- Staffing post-Brexit
The Migration Advisory Committee (MAC) has published a key report, which provides a strong indication of likely government policy post-Brexit. Please click here for our summary of the main recommendations and what they mean for employers.
If you would like to discuss any of these topics, or any other aspect of Employment Law, please contact Head of Employment, Jodie Sinclair.
This article may contain information of general interest about current legal issues, but does not give legal advice.
