Do employers have to make reasonable adjustments for employees with disabled children?

Transcription

1 Coffin Mew s Employment Review - June 2014

2 Do employers have to make reasonable adjustments for employees with disabled children? I n the case of Hainsworth v Ministry of Defence [2014] EWCA Civ 763 the Court of Appeal considered whether an employer had to provide reasonable adjustments to an employee who was not disabled themselves, however, had a disabled daughter. The law Under the Equality Act 2010, where a provision, criterion or practice (PCP) of an employer puts a disabled person at a substantial disadvantage compared to persons who are not disabled, the employer may be obliged to take reasonable steps to avoid the disadvantage. In other words, the employer may have to make reasonable adjustments for a disabled person if the employer applies a PCP which puts the disabled person at a disadvantage. The Equality Act says that the employer needs only make reasonable adjustments for the following: a person who is or has notified the employer that they might be an applicant for the employment, an applicant for the employment and an employee of the employer. The above provisions are designed to implement the EU law set out in Article 5 of Equal Treatment Framework Directive (2000/78/EC), which concerns reasonable accommodation. Under this directive the Employer shall take appropriate measures to enable a person with a disability to have access to, participate in or advance in employment, or to undergo training unless such measures, or to undergo training would impose a disproportionate burden on the employer. The case of Hainsworth v Ministry of Defence (MOD) Ms Hainsworth had been employed by the MOD since April From September 2001 she was employed as an Inclusion Support Development Teacher based in Germany. Ms Hainsworth s daughter, Charlotte, has Downs Syndrome and is a disabled person under the Equality Act. The MOD provided facilities for educating children of service and civilian personnel serving outside the UK. The MOD did not provide any special schooling and did not provide for children who have specific needs in Germany. Therefore, due to Charlotte s disability, she could not be schooled in Germany. As Charlotte could not be schooled in Germany, Ms Hainsworth requested that she be transferred to the UK in order to meet Charlotte s schooling needs. The MOD rejected Ms Hainsworth s request. To contact one of our employment team please call or Dorlee Monschau, Partner dorleemonschau@coffinmew.co.uk Darren Tibble, Partner darrentibble@coffinmew.co.uk Tabytha Cunningham, Associate Solicitor tabythacunningham@coffinmew.co.uk Holly Cudbill, Associate Solicitor hollycudbill@coffinmew.co.uk Susy Perry, Senior Solicitor susyperry@coffinmew.co.uk Charlotte Farrell, Solicitor charlottefarrell@coffinmew.co.uk Southampton 3rd Floor, Cumberland House Cumberland Place Southampton SO15 2BG Tel: Lakeside Portsmouth 1000 Lakeside, North Harbour Portsmouth PO6 3EN Tel: Office also in Gosport

3 The Equality Act does not require an employer to make reasonable adjustments for an employee associated with a disabled person. However, Ms Hainsworth sought to rely on Article 5 of the Directive and argued that the MOD was obliged to make reasonable adjustments for Ms Hainsworth because of Charlotte s disability. Ms Hainsworth drew an analogy with a previous English case of Coleman v Attridge Law [2008] ICR In Coleman it was confirmed that Articles 1 and 2 of the Directive protected an employee against direct disability discrimination and harassment which resulted from the employee s association with a disabled person (in that case, the employee s child). In the case the employee was entitled to protection under EU law, even though the English law at the time had not provided for this. The Employment Tribunal s decision The Employment Tribunal rejected Ms Hainsworth s claim. They said that employers are only required to make reasonable adjustments for employees or job applicants who are disabled under the Equality Act. The employer does not have to make reasonable adjustments for those who are associated with a disabled person. The Employment Appeal Tribunal also concluded that the case was unarguable and therefore upheld the Employment Tribunal s decision. Ms Hainsworth the appealed to the Court of Appeal. The Court of Appeal s decision The Court of Appeal rejected Ms Hainsworth s appeal and reiterated the Employment Tribunal s decision that employers are only required to make reasonable adjustments for employees or job applicants who are disabled. The Court of Appeal did not accept Ms Hainsworth s argument that Article 5 of the Directive also applied when an associated person of the employee was disabled. The Court of Appeal decided that the obvious and entire focus of Article 5 is that employers make provisions for disabled employees and prospective employees. It decided that a number of the provisions of the Directive clearly only apply to disabled people and not associated persons, including Article 5. Therefore, the Court of Appeal distinguished Coleman from the present case and said that although direct disability discrimination and harassment require protection against associative discrimination, reasonable adjustments do not attract the same protection. Comment This case is helpful as it confirms that employers do not have an obligation to make reasonable adjustments for employees who care for a disabled person. It is however, still good practice for an employer to assist any employees who do have such caring responsibilities. Employers should be aware that employees who have caring responsibilities can make a flexible working request, which the employer would need to carefully consider and which can only be rejected on certain business grounds. Employers also need to be aware that flexible working requests from female employees which are not granted may lead to complaints of sex discrimination. For more information on the changes coming into force at the end of this month in relation to flexible working requests, see Susy Perry s article below. Tabytha Cunningham, Associate Solicitor tabythacunningham@coffinmew.co.uk Tabytha Cunningham qualified as an employment solicitor in October 2009 after completing her training with Coffin Mew. Tabytha obtained a first class law degree from the University of Nottingham and completed her Legal Practice Course at Nottingham Law School. Tabytha advises employees and employers on all aspects of contentious and non contentious employment law, working closely with her colleagues to provide cost effective support to clients. Tabytha has a particular interest in Employment Tribunal litigation, assisting employers and employees in relation to unfair dismissal and discrimination claims. Tabytha Cunningham, located in the firm's Southampton office, has a broad practice and advises on compromise agreements, employee disputes and tribunal matters. Chambers and Partner 2013

4 A right for all to request flexible working F rom 30 June 2014, changes will be introduced to give all employees with 26 weeks continuous service the right to request flexible working from their employer. The current flexible working regime provides that only employees who have child care responsibilities or who are responsible for caring for an adult can make a request. Employers may be alarmed by this change but there is also good news as the strict procedure for dealing with requests is relaxed. Currently, if an employer receives a request it must be dealt with in accordance with a fairly onerous statutory procedure which provides strict time frames for when and how the request must be dealt with. The statutory procedure for dealing with requests will be abolished and the onus on the employer will be to consider requests in a reasonable manner. Employers and employees alike should be aware that there is no obligation on employers to agree to flexible working arrangements. Employees are entitled by law to make a request but there is no legal obligation for the request to be granted. To be eligible the employee must have 26 weeks continuous service and can only make one request in any 12 month period. Employees may ask to work from home, job share, work part time or compress their hours and the reason for the request could be wide ranging, including simply that the employee wants to spend less time at work! Under the new regulations the reason does not need to be to care for a child or adult. The current strict procedure for dealing with flexible working requests is replaced with an obligation on employers to respond to the request in a reasonable manner and within a period of three months from receipt of the request. To give guidance to employers on best practice ACAS has published a Code of Practice and supplementary guidance. If an employee challenges the employer s response to their flexible working request the Susy Perry, Senior Solicitor susyperry@coffinmew.co.uk Susy Perry qualified as an Employment Solicitor in 2003 and joined Coffin Mew s Employment Team in December Susy specialises in all aspects of employment law and advises on a wide range of contentious and non-contentious employment issues providing full employment law and HR support to a range of employers. Susy has significant experience in discrimination claims and represents employers and employees in all types of Employment Tribunal proceedings.

5 Employment Tribunal will take into account the Code of Practice to assess whether or not the employer has complied with its obligations and acted reasonably. Once a request from an employee has been received, an employer should arrange to meet with the employee to discuss it as soon as possible. The employer should then consider the request by carefully considering the benefits of the working arrangements against the potential adverse business impact of agreeing to the change. Susy Perry, Senior Solicitor susyperry@coffinmew.co.uk Susy s work includes: Employers can refuse to agree to the request if they think it will be detrimental to the business, but as with the existing regime the reason for rejecting the request must be because of one of the business grounds set out in the legislation. These include cost to the business, impact on performance or quality and a detrimental effect on meeting customers demands. After making a flexible working request, an employee can bring an Employment Tribunal claim if: the employer failed to deal with the request in a reasonable manner; failed to notify them of the outcome within three months; fails to rely on one of the statutory reasons when refusing the request; or treats the request as having been withdrawn where the withdrawal circumstances do not apply. The Employment Tribunal can order the employer to reconsider the application or award up to eight weeks pay. When dealing with a request employers should be mindful that in making the decision they are careful not to inadvertently discriminate against an employee, because for example they are a new mother. If an employer is considering agreeing to a change, then it may be useful to agree a short trial period to see if the new arrangement works for the business, this may be favourable to the employee as well. This should be a for a fixed term and on the understanding that if at the end of the trial period either party does not think that it works then the role reverts back to as it was before the request was made. There is no reason to think that there will be a deluge in flexible working requests, but, as the right is now extended to all, employers should review their flexible working policies and put in place a procedure so that an application for flexible working will be dealt with quickly and reasonably. It may also be useful to review in advance the needs of the business so that decisions following a flexible working request can be justified, to consider training for managers and how competing requests will be dealt with. Advising on dismissal, disciplinary and grievance processes Employment Tribunal litigation and negotiations Discrimination and harassment claims Employment aspects of merger, acquisitions and outsourcing of services and TUPE General advice on complex employment matters Advising on and drafting Settlement Agreements and advising on appointment and termination of senior executives Protecting confidential information and whistleblowing Drafting and advising on employment contracts, service agreements and employment policies Redundancies, restructuring and collective dismissals

6 Is dismissal following sickness absence due to post-natal depression discriminatory? T he recent case of Lyons v DWP Jobcentre Plus provided further clarity as to how far the protection against discrimination on the grounds of pregnancy and/or maternity extends. The case looked at the position where an employee is dismissed for sickness absence that occurs after the end of maternity leave, but is connected to pregnancy or childbirth. In the case, the employee was dismissed for absence connected to post-natal depression. The Employment Appeal Tribunal decided that because the absence was after the end of the employee s pregnancy and maternity leave, her dismissal did not amount to pregnancy or maternity discrimination. It could amount to sex discrimination, but only if the employee could demonstrate that a male comparator with equivalent sickness absence would have been treated more favourably. This case is a useful reminder of the complicated provisions surrounding maternity and pregnancy discrimination, and the interaction between UK and European law. The law The law prohibiting discrimination is contained in the Equality Act Under section 18 of the Equality Act pregnancy discrimination occurs when an employer treats an employee unfavourably because of her pregnancy or because of an illness suffered as a result of pregnancy within the protected period. The protected period is the timeframe from the beginning of the pregnancy to the end of maternity leave. Under section 13 of the Equality Act direct sex discrimination occurs when, because of sex, an employer treats an employee less favourably than it treats or would treat others. The employee must be treated less favourably than a real or hypothetical employee who is a member of the opposite sex and whose circumstances are not materially different. So, for example, in this case a comparator would be a male employee with the equivalent length of sickness absence. The case of Lyons v DWP Jobcentre Plus Miss Lyons was employed at the Jobcentre as a Lone Parent Advisor from During her period of employment, Miss Lyons was off sick with depression on numerous occasions throughout 2003 to Miss Lyons became pregnant in When she was in an advanced stage of her pregnancy Miss Lyons was involved in a car crash with a cyclist who Charlotte Farrell, Solicitor charlottefarrell@coffinmew.co.uk Charlotte Farrell qualified as an employment solicitor in September 2012 after completing her training with Coffin Mew. Charlotte obtained a first class law degree from the University of Cardiff and completed her Legal Practice Course at Cardiff Law School. Charlotte advises employees and employers on all aspects of contentious and non contentious employment law, working closely with her colleagues to provide cost effective support to clients. Charlotte has a particular interest in assisting employers and employees in relation to unfair dismissal, breach of contract and discrimination claims. Charlotte is a member of the Employment Lawyers Association and speaks fluent French. In her spare time Charlotte enjoys sailing and kayaking on the Solent.

7 tragically died as a result of his injuries. Miss Lyons was understandably deeply shocked and upset as a result of this accident, which resulted in her being absent from work during the period 4 to 18 of January Miss Lyons commenced her maternity leave on 1 February After the birth of her child, she began to suffer tiredness, anxiety, distress and helplessness. Miss Lyons was subsequently diagnosed with moderate severe post-natal depression by her GP in July Miss Lyons had previously intended that she would return to work following maternity leave, on 17 September However, on 15 September 2010 Miss Lyons saw her GP regarding her intrusive thoughts about the car crash and her concerns that something bad was going to happen to her baby. Miss Lyons was signed off sick with post-natal depression. Miss Lyons did not return to work and was subsequently dismissed by the Jobcentre on 1 March 2011 by reason of ill health capability. Miss Lyons then brought Employment Tribunal claims for unfair dismissal, pregnancy discrimination and direct sex discrimination. The Employment Tribunal s decision Miss Lyons succeeded in her unfair dismissal claim as the Jobcentre had failed to follow its absence management procedure, and its conduct in dealing with Miss Lyons was criticised. The key legal issues related to Miss Lyons claims for discrimination. Pregnancy discrimination The Employment Tribunal found that the Jobcentre had treated Miss Lyons unfavourably because of her pregnancy-related illness (post-natal depression); however, she could not rely on unlawful pregnancy discrimination as the dismissal took place outside the protected period: it related to sickness absence after her return to work from maternity leave. Miss Lyons only recourse was therefore a sex discrimination claim. Charlotte Farrell, Solicitor charlottefarrell@coffinmew.co.uk Charlotte s work includes: Advising on dismissal, disciplinary and grievance procedures Discrimination and harassment claims Drafting and advising on employment contracts, service agreements and employment policies Advising on, drafting and negotiating Compromise Agreements Employment Tribunal litigation and negotiations Direct sex discrimination Miss Lyons accepted that she could not show that she had been treated any differently from a male comparator who had a similar length of sickness absence. However, she argued that the Employment Tribunal should follow a decision previously decided by the Employment Appeal Tribunal in a similar case of Calendonia Bureau Investment & Property v Cafrey. In that case the Employment Appeal Tribunal decided that where the employee suffered from a pregnancy-related illness which arose during maternity leave and continued after the maternity leave ended, this could be sex discrimination even if the employee could not point to a male comparator. Whilst the facts in the case were very similar, the difficulty faced by Miss Lyons was that following the Cafrey case, the European Court of Justice (ECJ) had considered the same point in other cases and concluded that this reasoning was not correct under European law. The question for the Employment Tribunal was whether they should still follow the UK Cafrey case, or whether they were obliged to follow the subsequent ECJ cases. Miss Lyons argued that the Employment Tribunal was not obliged to follow the ECJ cases and/or that the UK law was intended to

8 give greater protection than the European law. Unfortunately for Miss Lyons, the Employment Tribunal decided that the Cafrey case was no longer correct and they should follow the ECJ cases. The Employment Tribunal found that Miss Lyons had not suffered sex discrimination as she could not show a male comparator would have been treated more favourably. Miss Lyons appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal s decision The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal s decision and rejected Miss Lyons appeal. Pregnancy discrimination The EAT agreed that Miss Lyon could not rely on pregnancy discrimination as the dismissal took place outside of the protected period. Direct sex discrimination The EAT decided that Miss Lyons could not rely on sex discrimination. It decided that the Employment Tribunal was right to follow the ECJ case law. There was no evidence that the UK had intended to implement greater protection than that provided under European law in relation to pregnancyrelated sickness. The EAT found that the special protection only applied during the protected period. An employer is not prevented from taking absence after the end of maternity leave into account when considering dismissal, even if it is in some way connected to pregnancy. Provided that the employer treats the woman the same way that it treats a man who has been off sick for a similar period of time, this will not amount to sex discrimination. As Miss Lyons could not show that she had been treated less favourably than a man would have been in similar circumstances she could not succeed in her claim for sex discrimination. Charlotte Farrell, Solicitor charlottefarrell@coffinmew.co.uk Charlotte s work includes: Advising on dismissal, disciplinary and grievance procedures Discrimination and harassment claims Drafting and advising on employment contracts, service agreements and employment policies Advising on, drafting and negotiating Compromise Agreements Employment Tribunal litigation and negotiations Comment This case confirms that the law does not provide special protection for pregnancy-related illness outside of the protected period. Such cases will be considered under the normal sex discrimination protection and a comparator will be required. Interestingly, Miss Lyons did not also bring a claim for disability discrimination. If her post-natal depression (or the depression she previously suffered from) was such that it amounted to a disability, this would have added another angle to the case. Employers should therefore still consider whether in these circumstances the medical condition causing the absence could amount to a disability. It should also be remembered that Miss Lyons did succeed in her claim for unfair dismissal, as the steps taken by the Jobcentre and the decision to dismiss were considered unreasonable. Employers considering dismissal in these circumstances must still follow their normal capability process, including seeking medical advice, before considering dismissal.

9 Who controls the Ref: worker v employee status for football referees. T he events in the World Cup so far have illustrated the controversy that invariably surrounds referees decisions, which are often blamed for altering a team s fortune in the tournament. Holly Cudbill, Associate Solicitor hollycudbill@coffinmew.co.uk With convenient timing, referees have also been in the spotlight in the employment world. The Employment Appeal Tribunal in Scotland recently considered the employment status of a football referee in the case of Conroy v Scottish Football Association Limited. If you have ever found yourself wondering how much those bastions of footballing standards, who of course never make mistakes, are paid, make sure you read to the very end. The Background Mr Conroy was a doctor employed by the NHS who refereed Scottish Premier League games in his spare time. Mr Conroy was a Category 1 referee (the highest level) for 12 years and received a document on a yearly basis from the Scottish Football Association (SFA) setting out various terms governing his refereeing of games. Holly Cudbill qualified as an Employment Solicitor in 2003 and joined Coffin Mew s Employment Team as an Associate in June Holly is experienced in all aspects of employment law, with a specialism in Employment Tribunal claims, acting predominantly for employers, Equality & Diversity, including all aspects of discrimination law, and Data Protection. The document required Mr Conroy to make himself available wherever practicable for refereeing appointments from the SFA and set out various obligations on Mr Conroy, including that he: maintain a level of performance to the reasonable satisfaction of the [SFA] ; satisfy the requirements of the SFA for fitness by passing the fitness test ; comply with and be bound by all reasonable instructions, directions and guidelines issued by the SFA ; attend no less than 75% of training and monthly meetings ; and use his reasonable endeavours to promote, develop and protect the business, interests, goodwill and reputation the SFA. The document also provided that in the event that Mr Conroy breached any of his obligations the SFA could demote, suspend or not allocate refereeing appointments to Mr Conroy.

10 The document specifically stated that Mr Conroy s relationship with the SFA was that of independent contractor and that nothing in the document would render him an employee, worker, agent or partner of the SFA. It also made it clear that Mr Conroy was responsible for all income tax and national insurance contributions due to be paid as a result of his earnings as a referee. The SFA did not guarantee Mr Conroy would be offered a set number of matches to referee and Mr Conroy was able to turn down matches, although doing so without good reason would usually result in being allocated fewer matches in the future. The reality was that Mr Conroy refereed matches most weekends, and sometimes during the week, throughout the football season. The SFA provided Mr Conroy with clothes to wear during matches but did not provide a stopwatch, flags, red and yellow cards, whistles, and notebooks, all of which Mr Conroy provided at a cost of around 1,000 per annum. Mr Conroy was provided with BUPA medical care and insurance by the SFA; however, he had no entitlement to receive sick pay. Finally, as you would imagine, Mr Conroy did not have the right to provide a substitute in the event that he was unable or unwilling to referee any particular match. The Employment Tribunal Mr Conroy issued claims in the Employment Tribunal for unfair dismissal, age discrimination and holiday pay. In response, the Scottish Football Association maintained that the Tribunal had no jurisdiction to hear the claims on the grounds that Mr Conroy was self-employed. This meant it was necessary for the Employment Tribunal to determine Mr Conroy s employment status. The nature of Mr Conroy s claims meant that the Tribunal had to consider his employment status under the Employment Rights Act 1996 (for unfair dismissal), the Equality Act 2010 (for age discrimination) and the Working Time Regulations 1998 (for holiday pay). Under the Working Time Regulations, a worker is someone who personally provides work or services and who is not in business on their own behalf. Under the Equality Act, an employee is an individual who works under a contract of employment, a contract of apprenticeship or a contract personally to do work. Under the Employment Rights Act, an employee is an individual who works under a contract of employment or apprenticeship. The eagle-eyed amongst you will have spotted that the Equality Act definition of an employee is a neat mish-mash of the other two definitions. In essence, for the purposes of discrimination, employees and workers are covered equally. The key element of both the Working Time Regulations and Equality Act definitions is whether or not the individual is obliged to perform the work Holly Cudbill, Associate Solicitor hollycudbill@coffinmew.co.uk Holly s work includes: providing support and assistance to HR professionals and managers enabling them to manage all aspect of employment relations. Advising on senior executives appoint tments and terminations,including protected conversations and negotiating settlement agreements. Advising on the effect of TUPE on mergers and acquisitions and outsourcing arrangements. Employment Tribunal litigation, including carrying out advocacy at Hearings. Advising on disciplinaries and grievances. Advising on discrimination, harassment and family friendly laws. Advising on collective consultation and large scale redundancies. Advising on the drafting and enforcement of restrictive covenants. Drafting and advising on all employment related documentation, including contracts, policies, procedures and handbooks. Advising individuals on settlement agreements.

11 personally: in other words, is he able to provide a substitute. As Mr Conroy was obliged to carry out the refereeing himself and could not simply send someone along in his place, it was relatively simple for the Employment Judge to conclude that he did fall within the worker and employee definitions for holiday pay and discrimination purposes. The task of concluding whether an individual is an employee for the purposes of the Employment Rights Act is much more difficult, despite the brevity of the definition itself: working under a contract of employment. In this case, the Employment Tribunal reiterated that for there to be a contract of employment in place, there must be mutuality of obligation, control and the terms of the relationship should be consistent with there being a contract of employment. The Judge concluded that, whilst there was a relatively high level of control because of the nature of the work, and there were terms consistent with employment, such as the provision of the uniform and medical insurance, there was no mutuality of obligation. The SFA was not obliged to offer Mr Conroy matches to referee and, when offered them, Mr Conroy was not obliged to accept them. As a result, the Tribunal decided Mr Conroy was not an employee. The Employment Appeal Tribunal Mr Conroy appealed against the decision that he was not an employee. In considering his appeal, the Employment Appeal Tribunal referred to advice given in an earlier case about the approach to take when considering whether an individual is an employee: In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person s work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, given situation. The object of the exercise is to paint a picture from the accumulation of detail. The Employment Appeal Tribunal took the view that the Judge in the Tribunal had, correctly, taken into account all the relevant information in order to paint a picture of Mr Conroy s employment status. As a result, it decided that the correct legal test had been applied and so there were no grounds for upholding Mr Conroy s appeal. Comment When faced with a question as to whether an individual is an employee, many employers expect to be able to simply run through a checklist and come up with a black and white answer. Unfortunately, the reality is more complicated than that and it is important to look at all the aspects of the working relationship, always remembering that simply saying someone is not an employee does not necessarily make it so. Finally, as promised, it was mentioned in passing that Mr Conroy s earnings as a referee (bearing in mind that s around 90 minutes a week, 9 months of the year) were on average 213,000 a year. I leave you to draw your own conclusions; I couldn t possibly comment. To contact one of our employment team please call or Dorlee Monschau, Partner dorleemonschau@coffinmew.co.uk Darren Tibble, Partner darrentibble@coffinmew.co.uk Tabytha Cunningham, Associate Solicitor tabythacunningham@coffinmew.co.uk Holly Cudbill, Associate Solicitor hollycudbill@coffinmew.co.uk Susy Perry, Senior Solicitor susyperry@coffinmew.co.uk Charlotte Farrell, Solicitor charlottefarrell@coffinmew.co.uk Southampton 3rd Floor, Cumberland House Cumberland Place Southampton SO15 2BG Tel: Lakeside Portsmouth 1000 Lakeside, North Harbour Portsmouth PO6 3EN Tel: Office also in Gosport