Employment Law Coffee Break: COP26, knowledge of a disability, the Supreme Court rules on unlawful inducement, and name bias

COP26 

With the announcement this week that UK listed companies and financial services institutions will, by 2023, need to make public plans for how they will move to a low-carbon future in line with the UK's 2050 net zero target, the spotlight is firmly on "green" issues which are rising up the HR agenda for all businesses. With many employers focusing on green jobs and their ESG agenda, coupled with increasing employee engagement on this topic, we will be holding a webinar later this month focusing on the legal and practical issues this brings for employers; please look out for the invitation. In the meantime, if you would like to keep track on the discussions at COP26, lawyers in our decarbonisation team are providing daily insights for our clients – their latest Insight is here.

Knowledge of a disability: a useful reminder from the EAT

Covid-19 has seen a change in the way many people work; for some employees this has been a positive experience with their levels of productivity, quality of work and work life balance seeing a noticeable upturn. Others, however, have found the changes more demanding: with poor performance and, in some instances, conduct issues becoming a real concern for managers. Where informal resolution to address any concerns fails to provide a satisfactory solution, formal action may be appropriate under relevant policies and procedures. 
 
At all times employers must remain mindful of additional considerations which may be relevant; for example, where an employee is disabled under the Equality Act 2010, employers are under a statutory obligation to make reasonable adjustments and not to discriminate. One claim employers must be particularly alert to is where an individual is treated unfavourably as a consequence of "something" arising from their disability (section 15 claim); this would capture action under a performance or disciplinary process where an individual's disability in fact impacts performance or behaviour. 
 
Particular difficulties arise where an employee has not disclosed their disability or, indeed, may not consider themselves to be disabled, which can often be the case with neurodiverse individuals. In a recent decision, the Employment Appeals Tribunal (EAT) has helpfully confirmed that for the purposes of section 15, an employer will only potentially be liable where it is aware of the disability at the time of the alleged discriminatory treatment. Here, the employee alleged that her dismissal for poor performance was discriminatory; however, she had only made her employer aware of her mental health issues for the first time in a subsequent grievance (and which was not the subject of her employment tribunal claim) and raised for the first time in the tribunal proceedings that she considered that she was dyslexic. Consequently, at the time of her dismissal, the employer lacked actual or constructive knowledge of her disability. 
 
Before taking any formal action unfavourable to the employee, employers must satisfy themselves whether they have actual or constructive knowledge of a disability and, where they do, give careful consideration as to why they are taking the proposed action and explore potential resolutions including any reasonable adjustments, such as additional training or supervision. While an employer does have a defence to a section 15 claim where it can show that the measures it has taken are a proportionate means of achieving a legitimate aim, no such defence exists in respect of the duty to make reasonable adjustments or any allegations of direct discrimination. 
 
Employers should also remain mindful when introducing new hybrid working policies to consider the impact these may have on those who are disabled. Where a disabled individual alleges that a policy, practice or procedure is indirectly discriminatory in that it has an adverse impact on a group of people sharing the same characteristic and places the claimant at a particular disadvantage, whether or not their employer knew or should have known of their disability is irrelevant. 

Direct pay offers to workers during a collective bargaining process unlawful

The Supreme Court has handed down an important decision for employers who recognise a trade union for collective bargaining purposes, finding that an employer's direct pay offers to union members, while a collective bargaining process was still ongoing, were unlawful inducements. 
 
In accordance with their recognition agreement, the parties had agreed to enter into formal pay negotiations each year and to negotiate any proposed changes to the terms and conditions of employment. In 2015, the employer's proposed pay package was rejected by union members. However, as it involved the payment of a Christmas bonus (which would not be available if the pay package proposed was rejected or negotiations extended into 2016) the employer proceeded to write directly to employees seeking their acceptance to its pay offer stating that a "failure to sign and return… will lead to no Christmas bonus and no pay increase this year".  The employer wrote again to each employee in January 2016 making a further pay offer and warning that if no agreement could be reached "this may lead to the company serving notice on your contract of employment". 
 
The Supreme Court upheld the original tribunal decision finding that the employer's approach to employees was an unlawful inducement; had the workers accepted the direct offer from their employer, the relevant terms of their employment for that period would not be determined by the collective agreement and this was the sole or main purpose of the employer's approach. The employer is now liable to pay £421,800 damages. The Supreme Court did not rule out an employer making direct pay offers where a collective bargaining process is not in play, for example, where the collective bargaining has been exhausted or where the employer has a genuine business reasons for approaching employees directly. 
 
Covid-19 has put existing collective bargaining arrangements with recognised trade unions into the spotlight as employers negotiate changes to pay and other terms and conditions as part of their economic recovery. As the Supreme Court decision demonstrates, legal advice on the potential ramifications must be taken before considering any direct approaches to staff where negotiations reach an impasse.  As the decision highlights, employers may have real difficulty in identifying when collective bargaining with a recognised union has been exhausted. With information and consultation on employment matters playing a pivotal role for businesses in responding to the Covid-19 pandemic, employers who do not recognise a union in respect of all or part of their workforce, or who do not have an existing staff forum or other employee representative body in place, may now wish to consider their options in this respect. For support on these issues please contact your usual Osborne Clarke contact or employment partners Paul Killen and Julian Hemming.   
 

Name bias: our International CEO shares his thoughts 

With increasing recognition that it is the diversity within an organisation that drives creating thinking and success, many businesses are looking closely at the make-up of their workforce. The growth in hybrid working driven by Covid-19 has also enabled employers to look further afield from within the UK and overseas in their search for talent. 
 
To avoid costly discrimination claims, many employers have already adopted recruitment practices which seek to avoid bias and discrimination when shortlisting candidates, for example by requiring removal of an individual's name, together with other characteristics such as sex, age, marital status and immigration status from job applications, which may consciously or unconsciously influence those deciding who proceeds through to the next stage of the process. Bias does not stop there: care must be taken at the interview stage and throughout the employment relationship to ensure that an individual is not treated differently because of personal factors. Accent bias is another area to watch with the potential to undermine social mobility programmes, as well as being potentially discriminatory. Employers must remain mindful that the employment relationship is one built on trust and confidence - creating and maintaining a culture where all employees feel welcome and able to raise in a safe environment any behaviours which cause concern will be critical to an employer's reputation and relationship with its employees as it seeks to recruit and retain diverse staff.
 
In this Insight, our international CEO, Omar Al-Nuaimi shares his story exploring name bias, written as Black History month comes to an end. 

Review current processes, train managers and prepare for future automation challenges 

Employers should review their recruitment and other internal processes, such as performance reviews and promotions, to prevent bias or discrimination (consciously or unconsciously) creeping into decision-making, supported by regular equal opportunities and diversity training for managers. As businesses explore automation of these processes as part of increasing digitalisation, it will also be important to consider if automation is the right answer to address the process in hand and, if so, how it really works. We are starting to see cases come before the Employment Tribunal and it is an area where we expect to see future regulation (for international businesses the EU is pressing ahead in this regard with the use of artificial intelligence in the employment arena identified as "high risk").  We will be exploring these issues as part of our "future of work" series so please watch this space for future events. Please contact partners Olivia Sinfield and David Cubitt or your usual Osborne Clarke contact to discuss how we can support you on these issues.