Be Aware – March 2023

Legal & HR

This month, the IGA Legal Team answer your questions on discrimination in the recruitment process, dismissing disabled employees, calculating redundancy pay, and motoring offences for courtesy cars and test drives:

Dismissing Disabled Employees

Employers are sometimes faced with the dilemma of having to manage a seriously ill employee in circumstances where they are unable or unwilling to return to work. What do you do where you have engaged and made reasonable adjustments but the employee continues to refuse to return?

The recent case of Preston v E.on Energy Solutions Ltd, is a good example of not only how important it is for employers to correctly engage with employees who have a disability, but also the limitations that apply to protections under the Equality Act 2010.

What Is a Claim of Discrimination Arising from Disability?

Under section 15 of the Equality Act 2010, a person will discriminate against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of their disability. However, a claim will not succeed if:

the treatment can be objectively justified.
the person did not know, and could not reasonably have been expected to know, about the disability.

In the case in question, Mr Preston was employed as a Complaints Manager by E.on. It was accepted by the court that he suffered from a disability (Primary Reading Epilepsy) that gave rise to a significant risk of disadvantage within the workplace because it increased his risk of seizures when reading. However Mr Preston had not disclosed his condition to his employer until after he went off sick with an unrelated stress condition.

His employer tried to engage with Mr Preston and reasonable adjustments were considered and put in place. However, Mr Preston remained absent from work due to his conditions and refused to engage with the measures put in place for him. After a lengthy period of illness he was dismissed.

It was found by the Employment Tribunal that whilst the Primary Reading Epilepsy was indeed a disability, as it had not been disclosed to the employer and they could not reasonably have become aware of the condition until after he was off sick, there was no duty to make reasonable adjustments before Mr Preston’s absence.

It was further found that, whilst it was true Mr Preston was disabled, he had not been dismissed because of his disability but as a result of his refusal to engage with the employer and the reasonable adjustments put in place.

The case was referred to the EAT, who dismissed the appeal, finding that,

there was nothing disclosed by Mr Preston which could mean the employer knew or ought reasonably to have known of the disability before he went on sick leave.
The employer was entitled to find that Mr Preston’s absence due to stress was unrelated to his disability.
Mr Preston’s dismissal was a proportionate means of achieving the employer’s legitimate aim, as Mr Preston had continued to refuse to respond to the reasonable managerial requests to return to work in circumstances where all the reasonable adjustments had been made to enable him to return to work and he had been found by an independent expert to be fit to return to work.

In conclusion

The key to this case is that the employer had engaged with the employee to consider reasonable adjustments as soon as they were aware of his condition. They had obtained a medical report from an occupational health specialist and put all reasonable adjustments in place. The employee was only dismissed after they continued to refuse to return to work despite the independent specialist concluding he was fit to return.

Recruitment and Discrimination

“We are recruiting for a new technician. I have been through the applicants and there are two strong candidates. The most qualified candidate however has said in his application form that he suffered from depression in the past, but claimed it doesn’t affect his work at the moment. I don’t want to take the risk if he proves to be unreliable so I was going to choose the other candidate. I presume that is okay?”

The simple answer is no. The employer in this situation should be aware that discrimination law is very different from unfair dismissal law. The right protection from discrimination applies to job applicants, so the employer can be liable before they have even met the candidate, essentially from when the application arrives through the employer’s door.

The risk in the situation above is that the job applicant could prove that the depression was a “disability” under the Equality Act 2010. To prove this they have to show that the condition has a substantial long term adverse effect on day-to-day activities. The effect of any medical condition on work is not the essential ingredient in determining the issue.

A further problem for employers is that, as a general rule, whether or not someone is disabled for the purposes of the Equality Act is assessed as if they were not taking medication for the condition. With someone with serious depression it follows that a Tribunal does not ask whether or not, when taking any medication or treatment, there is a substantial adverse effect on day-to-day activities, but rather how they would be coping with their medical condition if they were not taking such medication? The result is that a far greater proportion of the population in the UK can argue they are technically disabled in employment law than might be expected.

If the employer rejects the candidate above then the candidate can submit a claim to an Employment Tribunal. To defend such a claim the employer essentially has to show that the decision not to offer the job was not influenced by the disability (provided always the employee can prove they are disabled within the meaning of the Act).

Employers when recruiting should make job offers “blind” to medical information, albeit offers should be made subject to the satisfactory completion of a medical questionnaire. If it later transpires on further investigation that a medical condition is particularly serious and reasonable adjustments cannot be made to the terms of the job to accommodate that condition, then the employer can subsequently withdraw the offer and can raise a potential defence in the Tribunal.

In the situation above the claim may be difficult to defend if there is one very clear strong candidate then the job applicant may be able to prove to a Tribunal that the depression was the real reason the employer acted as it did. Of course in many situations it is more arguable and the fact that someone has a disability should not unduly scare an employer into offering the job if there are more able candidates. Treating all candidates fairly and openly is therefore important, as is laying a good paper trail in recruitment to demonstrate the relative candidate’s strengths and weaknesses, so that the employer can prove that the reason they didn’t offer a job to someone who has a disability has nothing to do with the disability. Although not common, beware that this area of the law is sometimes abused and vexatious litigants can try to bring claims to force employers to pay out, simply by making applications.

Redundancy calculation

“We are in the process of making an employee redundant. What is the correct calculation date for a calculating a week’s pay for the purposes of redundancy pay? How is a week’s pay calculated for an employee on a zero-hour contract, and if the employee has been working fewer hours during the period leading up to termination will that affect their statutory redundancy payment?”

Calculating statutory redundancy pay

Under Section 162 of the Employment Rights Act 1996 (ERA 1996), a statutory redundancy payment is calculated by:

determining the employee’s number of complete years of continuous employment ending with the ‘relevant date’, and
allowing the appropriate number of weeks for each year
multiplying that total number of allowed weeks by the current figure for a week’s pay, calculated in the usual way, subject to the statutory cap, which is £571 per week from 6 April 2022 (new limits on statutory redundancy pay will come into force on 6 April 2023 – amount to be confirmed)

The relevant date

As a general rule, the ‘relevant date’ for these purposes will be the date on which employment is effectively terminated, except:

where the employee dies before notice given by the employer expires, in which case the relevant date is the date of the employee’s death, or
where the employer terminates the employment contract and failed to give the required statutory minimum period of notice, in which case a later date will apply for two specific purposes only, namely:
calculating the two years’ qualifying period for a statutory redundancy payment, and
computing the length of service in calculating the amount of the redundancy payment

A week’s pay

For these purposes a week’s pay is calculated in accordance with s220-229 ERA 1996. The method of calculation varies depending on whether the employee has normal working hours or no normal working hours.

In the case of an employee on a zero hours contract who has no normal working hours, a week’s pay for these purposes is the amount of the employee’s average weekly remuneration in the period of 12 weeks ending:

where the calculation date is the last day of a week, with that week, and
otherwise, with the last complete week before the calculation date

Weeks in which no remuneration is earned (e.g. because the employee does not work every week or has been away on unpaid leave) do not count for the purposes of this calculation: instead, it is necessary to count only those weeks in which remuneration is earned, until 12 such weeks are taken into account. Weeks during which the employee was on maternity leave or other types of family-related leave and received less remuneration to be disregarded.

Motoring Offences

As with any motoring business, where you provide courtesy cars or test drives there will come a time when the driver has broken the law and you receive a request from the Police for the Drivers Details. What can you expect and how should you respond?

Notice of Intended Prosecution (NIP)

The first notice that you are likely to receive of any issues is Notice of Intended Prosecution.

The purpose of a NIP is to inform a potential defendant that they may be prosecuted for an offence. A NIP must be served on the Driver or registered keeper within 14 days. This can either be done through the post or at the roadside where the vehicle is stopped by a police officer.

A prosecution cannot proceed if the NIP is not provided within 14 days. However, a notice shall be deemed to be valid if it was posted to the last known address, notwithstanding that the notice was returned as undelivered.

Also, small mistakes on the notice will only render it ineffective if it would mislead the potential defendant.

Request for the Name and Address of the Driver

Most, if not all NIPS will be accompanied by a request for the driver’s details. If you are the registered keeper of the vehicle there is a legal requirement to provide the driver’s details. Failure to provide the driver’s details is itself an offence under section 172 of the Road Traffic Act 1988 and this also carried points and a fine. In fact, in most cases the penalty for not providing the Driver’s details are more than the original offence and for most speeding offences is double.

It is strongly advised that the driver’s details are provided.

Does the GDPR/Data Protection Act prevent me from giving the details?

No. Where the information is necessary for compliance with a legal obligation, such as responding to the police, then this will be lawful processing even if the data subject objects.

What if I do not have the details?

Then all you can do is respond honestly. There is a limited defence to not providing the details where you did not know who the driver was and could not have found out with reasonable diligence.

However, this is not an excuse to not keep a record of driver details or ‘forget’ who it was. The courts will as part of any case test such a defence. If the evidence to support your defence is insufficient, then this can be taken into consideration when a court sentences you.

This is also less likely to apply if you are a company as the court will require a relatively robust system of control to be in place and that any failure to keep a record was reasonable. This can be quite a high bar.

In conclusion

It is very important that any NIP or request for information is dealt with promptly. It is important to provide the driver’s details promptly and accurately, or if you were not the registered keeper at the time to provide the true keepers details. Failure to do so is likely to result in a larger fine and more points and can result in personal and company liability.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us in 01788 225 908 at any stage for advice and assistance as appropriate.