Be Aware – September 2022

Capability and Age

“I have an aging technician (Alan) who has started to make quite a few mistakes. He seems to be forgetting things and is getting a bit long in the tooth so I wondered whether I should just suggest it might be time for him to retire?  I wouldn’t mind offering him a small sum of money to go so I can get someone younger and quicker on the job. He has been a good employee, but it’s time he left.”

Prior to the Age Discrimination Legislation (introduced in 2006) in the above scenario, provided Alan was over 65, he simply couldn’t claim Unfair Dismissal and Age Discrimination didn’t exist. The employer could have had a conversation along the lines proposed by the Manager and Alan could have been dismissed without any comeback on the employer.  On the 1^st October 2016 it will be 10 years since that has changed.  Many employers think they can still dismiss fairly by reason of retirement, that was because between 2006 and 2010 retirement was a potentially fair reason to dismiss, provided the employer followed certain specified rules and procedures.

The law these days however is very different and it would be age discrimination to dismiss Alan simply because he is getting too old for the job, or to imply or assume the same. Employers need to be particularly careful about making assumptions based on age, even if factually it is correct that people, as they go into their 70s and 80s, may slow down and be less capable (in some cases, not all). Making decisions on that basis is likely to land an employer in the Employment Tribunal.

In the above situation, Alan simply has to be treated like any other employee with capability problems. If he is not performing, then clearly that can be a matter for capability procedures. This is likely to involve investigation and medical evidence. If it transpires after investigation and a reasonable procedure (including potentially warnings and any adjustments) that Alan really isn’t capable of performing the job any more, then the employer may be able to fairly dismiss Alan on those grounds.

Employers can set a ‘default retirement age’ but they have to objectively justify the same and that is a very high test in law, so most employers steer clear of this. In the motor industry of course, there are certain jobs which require a high degree of technical skill and care and often involve driving duties. It may therefore be wise to monitor a situation similar to that described above closely and if there are doubts as to an employee’s health/eyesight/hearing, which may be deteriorating with age, then appropriate medical evidence should be sought to justify a potential dismissal.

Is Long Covid a Disability?

‘Long Covid’, or ‘Post-Covid 19 Syndrome’ is defined as:

‘Signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body’.

Although the majority of people recover within 12-weeks, it is estimated that 1.3 million people in the UK are suffering with prolonged side effects. How should employers manage this condition, and does it amount to a disability within the meaning of section 6 of the Equality Act 2010?

In a recent decision where the court was only considering whether the condition was sufficiently serious to be deemed a disability, the Employment Tribunal in the Scottish case of Burke v Turning Point Scotland [2021], the tribunal held that Mr Burke’s condition was sufficiently serious and long lasting to meet the relevant tests of the definition of disability as set out in the Equality Act 2010.

Mr Burke was a caretaker at Turning Point Scotland. He tested positive for Covid-19 in November 2020. After the onset of relatively mild symptoms Mr Burke went on to develop severe headaches and fatigue and his condition was so serious that he was unable to undertake usual household activities such as cooking, ironing and shopping because of a lack of energy.

Mr Burke remained off work for over 6 months. Following a series of fit notes his employer obtained occupational health reports referencing long-Covid and post viral fatigue syndrome. Mr Burke was dismissed on the grounds of ill health in August 2021 ‘given the uncertainty around any potential date on which he would be able to return to full duties’

In this case, the physical impairment had a clear adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial and long term because it “could well” last for a period of 12 months or more.

It should be remembered that this was a preliminary decision as to the nature of the condition only. The Tribunal has not deemed his dismissal unfair at this time and this does not necessarily mean that the employer did discriminate.

In Conclusion

There is a large variation in the nature and severity of Long Covid symptoms. Mr Burke was clearly unfortunate enough to suffer from a condition that was particularly debilitating and long lasting. Whilst this ruling is not binding and does not mean that everyone with long-COVID will be deemed disabled, it is likely to encourage more claims from employees suffering with the condition.

As usual the question for any employer remains whether the Long Covid as manifest in the particular employee

• has a clear adverse effect on their ability to carry out normal day-to-day activities.
• Is any effect more than minor or trivial, and
• Is any effect long term in that it has, or is likely to last for a period of 12 months or more.

Employers would be well advised to ensure that any period of illness is documented, including how any employee was affected by the condition. If the effects last longer than 12 weeks, consideration should be given as to whether a medical report is required to be able to assess the condition, particularly if you are considering any disciplinary action or dismissal.

Belief Discrimination

Is it unlawful discrimination on the ground of belief to require a Christian doctor carrying out disability assessments to use service users’ preferred pronouns?

No, held the EAT in Mackereth v DWP & anor.

The Claimant was employed as a Health and Disabilities Assessor for the DWP. He was a practising Christian who held the belief that God created man and woman and that it was not possible to change this. As such he refused to use an individual’s pronoun of choice, or refer to them in their desired style or title instead using only their gender as defined at birth.

Also, if a patient was established as transgender during an assessment, he would stop the assessment and refer them to another physician, leading to delays in the service user being assessed and a significant risk of offence being caused to the individual involved.

The employer explored ways to accommodate his objection but could not find any, as such the Claimant was told that should he refuse to change his position on this matter, his services would be treated as having been withdrawn. The Claimant left his job and brought Employment Tribunal proceedings alleging direct and indirect discrimination, and harassment relating to his respective beliefs and lack of beliefs.

The Employment Tribunal rejected his complaints.

The EAT also rejected the Claimant’s appeal. Whilst the decision of the Employment Tribunal was correct on the facts, the EAT found that the Tribunal had erred in law by deciding that the Claimant’s beliefs were not worthy of respect in a democratic society. The Claimant’s lack of belief in transgenderism is protected under the Equality Act.

The claims of direct discrimination and harassment failed as the employer had sought to accommodate the Claimant before taking steps against him. The indirect discrimination claim requiring the Claimant to use service users’ pronouns were proportionate and necessary to ensure transgender service users were treated with respect and without discrimination, and so this claim also failed.

In Conclusion

This case reminds employers that even where a belief is genuinely held and is part of a wider recognised belief, the way those beliefs are manifested by the individual holding them can still be problematic. As such, employers may be called upon to carefully balance clashing but genuine beliefs in order to maintain the dignity of their employees.

Employers faced with this difficulty must act proportionally, with sensitivity, and seek to work with individuals in order to try to find a route that minimises offence and unequal treatment.

Holiday Pay

How should an employer calculate holiday pay for a seasonal worker with a year round contract?

The Supreme Court has ruled on this long running issue in the case of Harpur Trust v Brazel.

Ms Brazel worked as a part-time music teacher under a zero hours contract. She did not work every week and she was only paid for the hours that she taught during term time.  She had a contract throughout the year (known as a part-year worker) and the school accepted that she was therefore entitled under the Working Time Regulations 1998 to the full-time equivalent of 5.6 weeks’ annual leave, to be taken during school holidays.

As the school year varied between 32 and 35 weeks a year, the school calculated her holiday pay using the ‘percentage method’ at 12.07% of hours worked in a term (12.07% being reached by dividing 5.6 (full-time equivalent) by 46.4 (the total number of weeks in a year less the 5.6 weeks’ holiday). This resulted in her holiday pay entitlement being lower than if her holiday pay had been calculated by averaging her normal rate of pay over the 12 weeks prior to the holiday being taken.

The school argued that calculating Ms Brazel’s  holiday pay using her average weekly earnings over the 12-week period immediately before her holiday was taken (WTR, reg. 16 and s. 221-224 of the Employment Rights Act 1996)  would result in her receiving proportionately more holiday pay then a full time employee and would therefore be unfair.

The Employment Tribunal initially agreed with the school, but this was overturned on appeal at the Employment Appeal Tribunal.  The Court of Appeal dismissed the school’s appeal who then appealed to the Supreme Court.

In the authoritative decision on this, the Supreme Court unanimously rejected the school’s argument, noting that nothing in the Part-Time Workers Regulations prohibited part-time workers from being treated more favourably than someone working throughout the year.

Commenting after the case Michael Ford QC stated:

‘The case is important for the leave entitlement of every worker in the UK. Had Harpur Trust’s arguments succeeded, employers, workers and tribunals would have faced the spectre of needing to determine the hours worked by every worker to calculate the annual leave entitlement. … Instead, after Brazel every worker receives the same, fixed’

In Conclusion

This case reminds employers that calculating holiday pay can be complicated where employees do not work standard hours. Whilst a desire for fairness is commendable, the correct method of calculation of weekly pay for a ‘part-year worker’ is as set out in s224 Employment Rights Act 1996. Weekly pay should be calculated as an average of the most recent 12 weeks’ of earnings prior to the start of the leave period, ignoring any weeks where earnings were zero (e.g. school holidays in this case).

Employing Apprentices

We are again coming up to another academic year and a number of RMI members will be considering appointing new apprentices and renewing old ones. Apprenticeships are common within the motor industry and can be very beneficial for both apprentice and master. However as with all staffing decisions you do need to understand them in order to ensure they are right for you and your business.

We strongly advise that you do not take on any apprentices without a written apprenticeship agreement that complies with the ASCLA requirements.

What is an apprenticeship

An apprenticeship is a work-based training programme which leads to nationally recognised qualifications.  It usually permits the apprentice to attend day release training whilst combining attending the workplace and working alongside experienced employees/workers.  It can either be for a fixed term period or until a level of qualification is reached.

Forms of apprenticeship

In 2011 the Apprenticeships, Skills Children and Learning Act 2009 (ASCLA 2009) came into force in England and Wales which provides broadly two legal forms of apprenticeship;

• a Contract of Apprenticeship, and
• an Apprenticeship Agreement.

The apprentice will be an employee under both forms of apprenticeship, but the employer will have certain additional responsibilities for an apprentice employed under a Contract of Apprenticeship, particularly relating to terminating the apprenticeship.

Contract of Apprenticeship

Prior to the introduction of ASCLA 2009, the status of an apprenticeship was governed by case law, with the Court of Appeal finding a modern apprenticeship could still constitute a common law contract of apprenticeship as long as it satisfied traditional criteria relating to the duration of the contract and the employer’s obligations under it.

As a general rule, a Contract of Apprenticeship is the default legal position, and this will exist where you and an apprentice entered into a work-based training programme but no or no ASCLA approved written agreement is entered into.

Under a Contract of Apprenticeship, you are required to employ an apprentice until they have been trained to the agreed level. It is particularly difficult for employers to fairly terminate the apprenticeship prior to reaching the required qualification. Managing apprentices is made more difficult as the court guidance on when a Contract of Apprenticeship can be terminated lawfully is very restrictive, i.e., an employer has to show that it is virtually impossible for an apprentice to complete their apprenticeship. Unlike employees who can potentially be lawfully dismissed for matters such as capability, conduct, gross misconduct or redundancy, it is not straightforward to dismiss someone under a contract of apprenticeship for such reasons.

In the event of a wrongful termination an apprentice may have a claim for damages arising from breach of the apprenticeship contract (for how much longer the apprenticeship should have run until its normal end) plus potentially a claim for enhanced damages due to a loss of career prospects.  Note an apprentice can also bring a claim in the County Court for up to 6 years from termination (as opposed to 3 months in an employment tribunal)

Approved English Apprenticeship Agreement

A traditional contract of apprenticeship is a contract under which the apprentice is bound to the employer in order to learn a trade, and the employer agrees to teach and instruct him. In an attempt to improve training for employment, the government first introduced a statutory scheme of apprenticeship agreements in 2011 under the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA 2009). A simplified scheme was introduced from 26 May 2015, but the old scheme continues to operate under transitional provisions.

This form of apprenticeship seeks to balance the needs of the apprentice with the needs of the employer.  Within this framework an apprentice has normal Employment Law rights as the contract is deemed to be a contract of employment (and therefore the apprentice will have the status of employee) rather than a contract of apprenticeship.  However, the agreement must satisfy certain conditions under ASCLA 2009 and be in a prescribed form.

There are a number of conditions required to qualify as an apprenticeship agreement which are:

• The agreement must provide for the apprentice to work for an employer for reward in a sector for which ‘an approved apprenticeship standard’ has been published;
• The agreement must provide for the apprentice to receiving training in order to assist them to achieve the approved apprenticeship standard in the work done under the agreement;
• The agreement must specify the amount of time to be spent on off-the-job training;
• The employer must agree a practical period (i.e., the period for which the apprentice is expected to work and receive training under the agreement) which takes into account:-
  • the apprentice’s knowledge and skills,
  • whether the work and training is to be undertaken by the apprentice on a full-time or part-time basis, and
  • the relevant apprenticeship standard;
• The practical period must be not less than 12 months (unless the apprentice has been made redundant in the last year of another approved English apprenticeship working towards the same apprenticeship standard, in which case the new agreement can finish on the same day as the old one would have); and
• The agreement must specify the practical period.

If any agreement is not in the correct format the protections of the ASCLA will not apply. The position in Wales is slightly different in terms of the requirements under ASCLA.  Clearly, we would also not advise employers to simply issue terms and conditions with the above bullet points and would strongly advise members to use a correct template of the ASCLA compliant agreement.  Members of the RMIF have access to template agreements on the RMIF website, so we would strongly suggest that you use one of the approved formats in addition to any training agreements when taking on an apprentice.

Employers will still need to take care when dismissing apprentices under this type of apprenticeship where those apprentices have acquired sufficient continuous service for Employment Law rights.  Once the apprentice has acquired two years’ employment then the employer will need to be able to demonstrate both a fair reason

We would certainly recommend that all apprentices are placed on an apprenticeship agreement.

Note the ASCLA does not apply to Scotland and Northern Ireland.  The situation therefore terminating apprenticeships in Scotland and Northern Ireland remains riskier for the employer as they cannot avail themselves of the protection that the individual is treated as an employee (not an apprentice) if they are on the correct form of template agreement.

Training agreements

When employing an apprentice an employer can either arrange training programme themselves or enlist the aid of a third-party service who can assist with funding and arranging college courses. However, it is arranged most colleges will look to enter into a training agreement between the college the employer and the apprentice.

It should be noted that this is designed to govern the training requirements of the apprenticeship. It is not a replacement for an apprenticeship agreement between the employer an apprentice.

Again, members of the RMIF are strongly advised to utilise the template agreements on the RMIF website in addition to any training agreements.

Wages

Since 1st October 2010 apprentices have been entitled to a national minimum wage rate. Due to the apprentice’s reduced skill this rate is proportionately lower. The current apprentice rate as of April 2022 is £4.81 and applies where the apprentice is under 19 or over 19 and in the first year of their apprenticeship.

It should be noted that as the employer you will be liable for pay whilst the apprentice is at college.

Conclusion

Apprenticeships are a common and useful tool and allow employers to provide training and pass on their knowledge to the next generation. However, you will still need to take care when considering an apprenticeship. How an apprenticeship is set up will determine how easily it is to manage the apprentice, the training and if necessary, any disciplinary actions including dismissal.

We strongly advise that you do not take on any apprentices without a written apprenticeship agreement that complies with the ASCLA requirements. Neither the training agreement between you, the college and the apprentice nor any standard employment contracts are sufficient. Failing to do so will significantly affect your ability to manage the apprentice and prevent you from dismissing them until they are fully trained. The RMI provides standard templates of apprenticeship agreements for England, Northern Ireland, Scotland and Wales for free.

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.