August 2019 Newsletter


With summer holidays beginning to peter out, thoughts may be turning towards the autumn and recruitment. If so, bear in mind last week’s report commissioned by the recruiter Milkround which found that 3/5ths of university leavers were put off applying for jobs by jargon. Half went to an interview without understanding what the job actually involved. The jargon confusing applicants included “onboarding” (being enrolled as an employee); “C-suite” (most senior executive); and “open the kimono” (reveal a project’s inner workings). Apparently, “thought shower” is to brainstorm (but isn’t that jargon being used to describe other jargon?). Anyway, it seems that candidates’ response to this is to fill their applications with jargon, believing this is what’s required to get the job. This then creates, what the Milkround described as, “a vicious circle of mutual bafflement”.

With that in mind, let’s get on with this month’s employment law news, which includes a useful case on employers’ knowledge of disability, the access to work scheme, a new sexual harassment helpline and discrimination in maternity / shared parental leave.

Let’s open that kimono:

Daryl Cowan, Partner 

When will an employer have constructive knowledge of a disability? 

An employer will not be liable for certain types of disability discrimination where it did not know, or could not reasonably be expected to know, about an employee’s disability. It is therefore important for an employer to know when it might be deemed to have constructive knowledge of a disability (i.e. it should have realised there was a disability even if it hadn’t been specifically told by the employee).

This was considered by the Employment Appeal Tribunal (EAT) in a recent case where the Claimant was dismissed for poor attendance and time-keeping. It turned out that her poor attendance arose in consequence of her disabilities, but she had not been forthcoming about this at the time.

The Employment Tribunal found that the Respondent had constructive knowledge of the Claimant’s disabilities because it knew that she had been under stress due to personal problems and, therefore, it should have made further enquiries of her.

But the EAT decided that the Tribunal was wrong to have focused on what process the Respondent could have been expected to follow, when the crucial question was what the Respondent ought to have known. It was found in this case that, if the Respondent had made further enquiries, the Claimant would have continued to suppress information about her disabilities and so those further enquiries would not have made any difference. On the facts of this case, therefore, the Respondent did not have constructive knowledge of her disability.

But employers beware: not all employees with a disability, who have failed to disclose this to their employer, will continue to do so if the employer asks questions, for example, about the reasons for their poor attendance or poor performance. This case is therefore a useful reminder that even if an employer does not have actual knowledge of an employee’s disability, it could still face a discrimination claim if it is found to have constructive knowledge of it, i.e. that it could reasonably be expected to know.

Kirsty Alleyne, Senior Solicitor 

Court of Appeal decision: the difference in maternity pay and shared parental leave pay

Recently the Court of Appeal considered whether it was discriminatory against men if an employer pays shared parental leave (SPL) at the statutory rate but pays enhanced pay to mothers on maternity leave. It decided (in our view unsurprisingly) that it was not discriminatory. However, given the Government’s wider social policy objectives regarding SPL, including giving fathers the opportunity to play a greater role in raising their child and to enable both parents to keep contributing to the labour market, this decision does not sit neatly.

In its findings, the Court of Appeal drew heavily on the Pregnant Workers Directive and subsequent EU case law to confirm that the purpose of maternity leave is to safeguard the health and wellbeing of a pregnant woman, or a woman who has recently given birth or is breastfeeding, and to protect the special relationship between a woman and a child. The nature of maternity leave is therefore fundamentally different to that of SPL, where the purpose is to care for the baby. Due to the difference in the purpose of the leave, Mr Ali’s and Mr Hextall’s claims were bound to fail.

As a result, it is currently still ‘safe’ to offer employees enhanced maternity pay but only statutory shared parental leave pay; however, it is worth noting that both Mr Ali and Mr Hextall have applied for leave to appeal to the Supreme Court.

Claire Helling, Senior Solicitor 

Emma Watson launches Sexual Harassment Advice Line for Women

A new legal advice line has been launched to assist women who experience sexual harassment in the workplace. The launch of the new service was promoted by the Harry Potter actress and Time’s Up activist, Emma Watson, who said:

“It finally feels like people are realising the scale of the problem, and I’m certainly hopeful that with global standards such as the recent International Labour Organisation treaty on harassment at work, we’ll start to see a new climate of prevention and accountability on this issue domestically.”

Research by the TUC revealed that as many as one in two women experience sexual harassment within the course of their employment.

The free advice line – the first service of its kind in England and Wales – received donations from members of the public and Emma Watson herself and is backed by Time’s Up UK’s justice and equality fund and will be managed by Rosa, a UK Fund for Women and Girls. The advice will be provided by Rights of Women, a charity which works to help women through law.

Caroline Oliver, Senior Solicitor

Access to Work Scheme for Disabled Workers

You will be aware that employees with disabilities are protected from discriminatory practices and employers have the obligation to make reasonable adjustments to assist them in the workplace in accordance with the Equality Act 2010. However, in reality, disabled people continue to face a number of challenges in finding and retaining employment, as well as being supported to ensure they are on an equal footing with their colleagues.

Government funding to support disabled workers has benefited a record 36,240 people in the past year via its Access to Work scheme. The objective of the scheme is to remove the various barriers for disabled people that exist in the workplace by providing advice and practical support to enable them to work alongside their colleagues.

Access to Work can help in a number of ways, including:

  • adjustments to premises and equipment;
  • special aids and equipment;
  • support Workers;
  • travel to work; and
  • awareness training for colleagues.

Recipients of the grant can now receive up to £60,000 per year through the scheme, paying for adjustments and support workers, thus taking the burden off employers.

Minister for Disabled People Justin Tomlinson said:

“Having a disability or health condition must not be a barrier to enjoying a fulfilling career – and the support available means there’s no excuse for employers who refuse to be inclusive.”

“Access to Work removes the obstacles facing disabled people in the workplace, helping to level the playing field and ensure businesses don’t see employing disabled people as a burden.”

It is estimated that there are nearly 950,000 more disabled people in work compared to 5 years ago. In the last year the scheme, which is run by Jobcentre Plus, spent a record £129.1 million on grants to individuals.

Caroline Oliver, Senior Solicitor

October Seminar

Our Autumn Seminar at the Ageas Bowl is fast approaching. You can book here to attend on Wednesday, 9th October at the Hilton Hotel at the Hampshire Cricket Ground. Topics will include discussing those tricky questions around sickness absence, for example: what pay is an employee on long term sick leave entitled to if they resign; is an employee entitled to sick pay during a phased return to work; and what right does an employer have to send an employee home due to the employee’s illness?

Other topics include thoughts on Non-Disclosure Agreements and how the law concerning them is changing, together with the retention of employment records in light of GDPR.

There’s breakfast and it’s free!

Book here

And Finally…

The Times has a running piece on adjectives for the recently fired. This week it offered up: “de-posed” for models who have been let go; electricians are “de-lighted”; and philosophers are “ex-pensive”. Yes, no, what? Oh, please yourselves. And now the prorogue*…

Daryl Cowan, Partner 

*Courtesy of Frankie Howerd – if you get that reference, welcome to my sad middle-age club.

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