Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Reasonable adjustments in recruitment
Aecom Limited v Mallon [2023] EAT 104
Mr Mallon, who has dyspraxia, was employed by AECOM until 18 December 2017, when his contract was terminated due to poor performance. Mr Mallon filed a claim for discrimination based on his disability, which was settled without an admission of liability. The terms stipulated that he would not be prevented from applying for future positions.
Mr Mallon applied for another position with AECOM in August 2018. He was required to establish a personal profile by providing his email address and creating a username and password, and submit a brief application form online.
Mr Mallon emailed AECOM’s HR department with his resume attached. His dyspraxia was disclosed on his resume, along with information about how dyspraxia affects individuals in general. He asked, in bold capitals, that he be permitted to make an oral application because of his disability and asked for this to be arranged by email. He stated that he would provide a phone number if AECOM sent him an email. Mr Mallon received an email from AECOM requesting that he complete the online form and informing him to let them know if he encountered any difficulties.
In email correspondence, Mr Mallon did not explain that he was unable to establish a username or password, but he did insist that he would prefer to apply orally. Mr Mallon did not call AECOM and AECOM did not call Mr Mallon.
Mr Mallon, unable to submit his application, filed a claim for disability discrimination, alleging that AECOM had failed to make reasonable adjustments.
The employment tribunal upheld the claim.
AECOM filed an appeal against the decision of the tribunal, arguing, among other things, that the tribunal erred in concluding that it had constructive knowledge of the disadvantage.
The EAT affirmed the finding of the Tribunal and dismissed the appeal. The EAT determined that the tribunal had correctly determined whether AECOM had knowledge of the substantial disadvantage, whether AECOM had made reasonable inquiries of Mr Mallon, and whether it had been reasonable to expect Mr Mallon to explain his difficulties via email.
Employer takeaways
This case demonstrates the significance of having robust internal procedures for addressing problems that may arise during recruitment. Recruitment procedures should include guidance on how to handle applications from former employees and those who have filed claims with a tribunal. AECOM failed to telephone Mr Mallon to discuss his disability and requirements, which in this instance effectively undermined its assertion that it was unaware of the disadvantage he faced.
Employers are required to make reasonable adjustments for job applicants and employees with a qualifying disability when a provision, criterion, or practice (PCP) places them at a substantial disadvantage relative to a person without disability. Employers are not required to make reasonable adjustments unless they know or should reasonably know that the employee is disabled and will be placed at a substantial disadvantage due to their disability.
Capability dismissal or mutually-agreed termination
Riley v Direct Line Insurance Group
Mr Riley, an employee of Direct Line, filed a claim for, among other things, unfair dismissal and discriminatory dismissal, alleging that he was ‘tricked’ into agreeing to the terms of a permanent health insurance scheme, the implication of which he claimed he did not understand.
The claimant has Autism Spectrum Disorder, coupled with periods of anxiety and melancholy, which caused him to be out of the workforce for nearly three years. Direct Line worked with Mr Riley to facilitate his return to work, including making a number of reasonable adjustments. This, however, was ineffectual, and a medical evaluation ultimately determined that Mr Riley would never be able to return to work.
Following this, Direct Line notified Mr Riley of a plan, offered by their health insurance provider, that would cover his salary in the event of disability. Mr Riley consented to participate in this programme, which then led to the termination of his employment.
The employer then sent him a letter in which he was inadvertently referred to as “dismissed” on the basis of capability. This constituted part of the basis for the claimant’s later attempt to assert that he had in fact been fired.
The EAT emphasised the importance of examining “the substance of the matter rather than the words used.” The concept of ‘freely granted mutual consent’ was crucial to this case.
It was determined that the claimant had not been ‘tricked’ into enrolling in the programme, and there was no evidence of deceptive or coercive behaviour on the part of the employer. The parties had engaged in a negotiation and discussion process, and the claimant had ample opportunity to seek legal counsel. In addition, the claimant’s participation demonstrated that he actively pursued the programme, agreeing to the termination of his employment “because he wanted to take advantage of it.”
As such, on the facts of the case, the EAT agreed with the Employment Tribunal that the claimant had not been dismissed, despite the employer’s subsequent letter incorrectly referring to the claimant as having been “dismissed”.
Employer takeaways
Employers are reminded from this case of the importance of contemporaneous record-keeping. The defendant was able to rely on documents such as meeting minutes and emails to support their position that the claimant had been made aware that termination would follow participation in the programme.
Workers (Predictable Terms and Conditions) Act 2023
A new law designed to give workers on flexible or casual contracts with more predictable working patterns has received Royal Assent and is expected to come into force in 2024.
The Workers (Predictable Terms and Conditions) Act 2023 will afford workers such as temporary workers and those on zero hour contracts a new statutory right to make requests for more predictable or regular working patterns.
Requested changes could relate to hours of work, days of work or the period of engagement.
The Government says its intention is to “redress the imbalance of power between some employers and workers in atypical work, encouraging workers to begin conversations with their employers about their working patterns”.
The change comes in direct response to Matthew Taylor’s 2017 review of modern working practices and the gig economy, which recommended the introduction of such a policy that would support workers who currently experience ‘one-sided flexibility’.
Workers will be able to make requests under the new law if they operate with irregular working hours and times or are on fixed-term contracts of 12 months or less. Agency workers will also be allowed to make their request either to their agency or in some circumstances, directly to the organisation they are working for.
The right will function in a similar way to the right to request flexible working, whereby a maximum of two formal applications can be made within any 12 month period.
Workers will qualify for the new statutory right after a minimum service period, which is expected to be 26 weeks, although these are not expected to have to be continuous weeks given the typically irregular working patterns of those concerned.
The request must state clearly the changes being proposed and the date from which they will apply.
Employers must consider all requests made under the new law in a “reasonable manner” and the decision must be made and notified to the worker within one month of the request being submitted.
If the employer accepts the request, the new arrangements must be offered within two weeks of the decision to grant the new terms.
When making the contractual changes in favour of predictable working, employers are prohibited from making additional contractual changes at the same time that would place the worker at a disadvantage or detriment.
Employers retain the right to refuse a request for predictable working, but this must be on the basis of one of six statutory grounds as specified in the Act: additional cost, ability to meet customer demand, impact on recruitment, impact on other areas of the business, insufficiency of work during the proposed periods, and planned structural changes.
Ahead of the Act taking effect, ACAS will be producing a draft Code of Practice for consultation later this year, specifically to provide guidance to employers on how to manage predictable working requests.
Employer takeaways
Ahead of the new law taking effect, employers are advised to review and update their workplace policies and procedures to take account of the new statutory right, and to ensure HR and managers are trained on how to deal with requests for predictable working. It will also be important to understand how any new terms should be incorporated within the contract of employment. For advice on how to prepare for the changes, and the specific implications of the new right on your organisation, contact us.
Employment Appeal Tribunal (Amendment) Rules 2023
The Employment Appeal Tribunal (Amendment) Rules 2023 introduce new rules and procedures for how appeals are conducted at the Employment Appeal Tribunal (EAT).
The key provisions of the new law, which takes effect from 30 September 2023, are as follows.
The most significant change is the simplification and reduction in the number of documents needed to file an appeal with the EAT. Specifically, appellants will no longer be required to submit copies of both the claim and response from the tribunal proceedings.
The amended rules now also grant the EAT the discretion to extend the deadline for filing an appeal when there has been a minor error in relation to the requisite documents. This discretion will be exercised by the EAT, taking into account factors like the timeliness of the correction and any potential prejudice to the respondent. The authority to evaluate the circumstances of an error and allow for a delay is a welcome relaxation of the current rules, whereby appeals could previously be dismissed on the basis of a minor and genuine mistake.
Updated EAT forms are also being introduced to take account of the new rules, to simplify the content for users, and to remove references to obsolete legislation and terminology.
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Last updated: 28 September 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
