Court rulings redefine discrimination in the workplace

Recent landmark court cases have produced both good and bad news for employers wishing to avoid costly discrimination claims from their staff.

The issue of workplace bullying became more complicated when the Court of Appeal ruled that a heterosexual father of three who was subjected to persistent homophobic banter from his work colleagues could bring a claim of harassment under anti-discrimination laws.

Stephen English, who is married and has three children, claimed that his work colleagues started calling him names and making homophobic comments to him after they found out that he had gone to a public school and that he lived in Brighton.

Mr English found the taunting so distressing that he had to give up his job. He made a complaint of harassment but the tribunal rejected his claim because he was not actually gay and his work colleagues did not believe him to be gay even though they taunted him.

This meant he was not protected by the regulations because the taunting was not due to his sexual orientation, but rather because his colleagues were reacting to stereotypical factors such as his having attended a public school and the fact that he lived in Brighton.

However, the Court of Appeal then ruled in Mr English’s favour saying it did not matter whether or not Mr English was gay. The key point was that he had repeatedly been taunted as if he were gay.

Employers may also have to re-assess their equal opportunities policies following a ruling by the European Court of Justice (ECJ) that ‘discrimination by association’ is unlawful.

The case involved legal secretary Sharon Coleman who said she was forced to resign from her job because she was denied the right to work flexible hours so she could look after her disabled son.

The European Court of Justice ruled in her favour saying that the EU Directive banning discrimination in the workplace on the grounds of disability did not only protect the disabled themselves, it also extended to those who care for the disabled. In November, an employment tribunal confirmed that the ruling applies to private sector workers in England and Wales. It means the law now provides protection on the grounds of someone’s association with a disabled person. It will also offer protection to those caring for elderly relatives.

There is no doubt that this is a hugely significant ruling. Employers should ensure their equal opportunities policies are up to date so that they do not discriminate against staff who act as carers for the disabled or the elderly. For example, if they offer flexible working to the mothers of young children then they may have to offer the same rights to an employee caring for a disabled or elderly relative.

There is some respite for employers. A ruling by the House of Lords will make it harder for employees to bring some disability discrimination claims in future. The ruling from a housing case, Malcolm v Lewisham LBC, introduced a much narrower definition for deciding whether discrimination had taken place.

Put simply, it said that the treatment of a disabled person claiming discrimination should be compared with the treatment a non-disabled person would receive if they behaved in the same way. If such a person would be treated in exactly the same way then there could be no discrimination and the claim would fail.

This tightens up the previous definition and has now been applied to an employment case involving the Child Support Agency and one of its employees, a Mrs Truman, who was disabled and worked from home. There were some problems delivering specialist equipment to her so she phoned a colleague and started shouting.

The colleague made a formal complaint of harassment which was upheld by the agency. Mrs Truman then brought a successful complaint of disability discrimination.

However, that decision has now been overturned by the Employment Appeal Tribunal.

Giving judgment, Judge Clark said that the disciplinary proceedings that were instigated when Mrs Truman shouted at a colleague on the phone were the same as would have taken place against any employee who had behaved in that way and so, as the Lords had ruled in the earlier case, the discrimination claim must fail.

The ruling will make it more difficult to bring discrimination claims in future but nevertheless, it is quite complicated and employers should take care before taking any action involving disabled employees.

New starter for thriving employment team

Nottingham City Centre law firm Andersons Solicitors welcomes Liam Kenealy to its employment team from Sheffield practice Ashton Morton Slack.

Liam will be advising businesses on all aspects of employment law with particular focus on giving practical employment law advice to SME clients to help them through the credit crunch.

Andrew Kelly, Senior Partner at Andersons Solicitors comments “It’s fantastic to have Liam on board. It’s proving to be a very busy time in the employment department. Liam will be focusing on ‘employment law in the credit crunch’ – ensuring businesses have the correct policies and procedures in place to minimise any Tribunal payouts!”

Andrew Kelly is Senior Partner at Andersons Solicitors. He can be contacted on 0115 988 6712 or by emailing akelly@andersonssolicitors.co.uk.

Don’t let staff sickness make you ill

Managing staff sickness could become even more difficult and costly following a court ruling that the long term ill can accrue holiday entitlement while off work. Insert name looks at how to deal with staff absences.

There is always something of a dilemma for employers when it comes to staff sickness. On the one hand you want to be sympathetic to a person who may be genuinely ill; on the other you need to protect the smooth running of your business and make sure employees don’t abuse the system.

The problem is about to become more urgent following the recent ruling from the European Court of Justice that staff on long term sick leave can claim their full statutory holiday entitlement.

It means a person who is off work for a year will be entitled to the four weeks annual leave accrued during that year.

An employee who resigns or is made redundant while off sick will be entitled to payment in lieu of holidays. This must be in addition to any redundancy payment.

The European Court of Justice (ECJ) said: "A worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness. He must be compensated for his annual leave not taken.”

The ECJ ruling is likely to put more pressure on employers who may already be struggling because of the economic downturn. However, it only applies to statutory minimum holiday pay. Firms may be able to be more restrictive with contractual holiday entitlement which exceeds the statutory minimum.

As the recession continues to bite, some employers may be tempted to dismiss the employee on long term sick leave rather than run up the extra cost of providing four weeks paid holiday. If so, great care should be taken to avoid creating grounds for the employee to claim unfair dismissal.

The procedure must be handled sensitively so as well as just monitoring the employee’s absence record, consult him about his health. Ask him when he feels he will be able to return to work.

The employee should be informed that his job may be at risk and time limits should be set for assessing the situation. You should consider whether the job could be altered to make it easier for the employee to carry out his duties. This could result in the employee returning to work, in which case the problem disappears.

To avoid the risk of the employee bringing a claim, you must be able to show that you followed all the correct procedures and that dismissal was a last resort after all other avenues had been exhausted.

Throughout this process you must remember that many people suffering from long term illness may well be classified as disabled. For example, depression can be deemed to be a disability. If an employee is disabled, this would give an employee protection under the Disability Discrimination Act 1995 and you may not be allowed to treat them less favourably on the grounds of their disability. You should be prepared to make reasonable adjustments to accommodate them. Extra care is needed (including both legal and medical advice on the issue) before taking any action. Dismissing a disabled person because of their long term illness may well constitute disability discrimination and lead to an expensive compensation claim.

It is not only long term sickness that can cause problems for companies. Short term absences are far more common and can be just as disruptive. Employees don’t have to produce a doctor’s certificate for the first seven days so an employer can never be sure if the illness is genuine or not.

The employee is entitled to statutory sick pay from the fourth day of absence.

If an employee is absent for short periods on several occasions, an employer is entitled to take action but should tread carefully before moving to dismissal.

Ideally, the employer should have a sickness absence policy including provision for return to work interviews. Attendance records should be monitored together with the reasons given for absence. Once you know why a person is taking time off work you may be able to provide help such as counselling or occupational health facilities.

The employee must be warned that their job is at risk and given time to improve.

Whether dealing with long or short term absences it helps to have a consistent policy in place that everyone understands. This will then provide a framework for dealing with problems as they arise and protect the employer from future claims if dismissal proceedings become necessary.

Anthony Kay is an Associate in the Employment Department at Andersons Solicitors. He can be contacted on 0115 988 6739 or by emailing akay@andersonssolicitors.co.uk.