Employment update | Top three in 3 minutes

Written on 2 Oct 2019

Court of Appeal finds an employer’s decision on an employee’s career based on a perception of their health was unlawful

The Equality Act 2010 provides that it is unlawful for an employer to discriminate on grounds of disability – the discrimination can take a number of forms, including where an employer treats an employee unfavourably because they perceive that they have a disability. The Court of Appeal has now ruled that this also covers a perception about a future disability.

Here, an employer’s rejection of an employee’s transfer request because it believed that an ear condition she suffered from could develop into a disability in the future (making her incapable of performing the role) was direct disability discrimination. The employee had some hearing loss but there had been no adverse effect on her existing front line duties as a police constable. She applied for a transfer but was ultimately rejected on the mistaken assumption that her hearing was a progressive condition and the ‘management of her ability to perform the role of front-line officer would become [their] responsibility’. The CA confirmed that there was no need for the employer to have concluded that the employee met the legal definition of having a disability. The fact that the employer believed that the employee’s hearing loss could in the future make her unable to perform her duties was sufficient to amount to a perception about her ability to carry out ‘normal day to day activities’ and which was protected under the Equality Act.

Action: Employers should take care not to make assumptions about an employee’s medical condition and the effect it may have on their ability to undertake duties now or in the future. Ensure those making recruitment and promotion decisions have received appropriate training to guard against any discriminatory decisions, whether made advertently or inadvertently. Where concerns do exist over an employee’s future health, employers should open a dialogue with the employee to understand the position and seek medical advice. Reasonable adjustments should be considered and made as appropriate.

What next? Our latest Brexit Brief and Labour’s employment promises

In Osborne Clarke’s latest Brexit Briefing | “Parliament has not been prorogued”, we explore the Supreme Court’s unanimous judgment that the government’s prorogation of Parliament was unlawful and void, and what it means for Brexit and our future political landscape. Whilst employers have not been anticipating any significant move from the current status quo on employment rights, a general election is by no means off the cards and should a Labour government be elected, it has announced workplace reforms which would be a substantial shift for all businesses.

So what is Labour proposing? Potential reforms include: introducing sectoral collective bargaining, giving trade unions a right of entry to workplaces to organise members, strengthening the rights of trade union representatives, creating a single status of ‘worker’ for all save the genuinely self-employed, a civil enforcement system to ensure compliance with gender pay auditing, a minimum wage of £10 per hour for all workers aged over 16, and banning unpaid internships and outlawing zero-hours contracts. This week has also seen media attention thrown on reforms to cut the average UK working week to 32 hours over the next 10 years and flexible working for women going through the menopause. These reforms will be pushed forward by a Ministry for Employment Rights to bring this about and a Workers’ Protection Agency to ensure all workers receive the rights and protections they are entitled to; the Agency having a power to inspect workplaces and an ability to bring prosecutions on behalf of workers.

Action: For the latest Brexit position and its impact for your business, please do sign up to our Brexit Briefings or speak to your OC contact. The latest immigration position is here. We shall be keeping a close eye on the current political situation and will provide updates as the position develops. Whilst some of Labour’s proposals reflect the existing Good Work Plan which is currently shaping employment law reforms, some are obviously far more wider reaching. It is also interesting that Labour has picked up on the impact of the ‘menopause’ on employees which follows closely on the heels of recent media attention around this topic and CIPD guidance. A number of employers are now starting to introduce menopause policies. Please let us know if this is something you would like more information on.

GDPR: How are you dealing with data subject access requests?

The General Data Protection Regulation has brought with it a renewed energy from individuals in making subject access requests for their personal data from employers (or former employers) and which employers, as data controllers, must respond to ‘without undue delay and in any event within one month of receipt of the request‘ (although subject to a potential extension to two months).

So when does the one month run from? The Information Commissioner’s Office has recently changed its guidance providing that the one month should now be calculated as starting on the day the request is received (whether or not it is a working day) until the corresponding calendar date in the next month (or where the start date is the 31st and the following month ends on the 30th, the 30th will be the last day for responding). If the corresponding date falls on a weekend or public holiday however, the deadline will be the following working day.

Action: HR teams will need to be alert to this and update their policies and practices accordingly or risk an ‘easy win’ by the individual when raising any issues of non-compliance with the ICO.

Data subject access requests will, in many cases, be looking for personal data within large numbers of emails, documents and other communications. Getting a subject access request wrong can result in criminal liability, financial penalties but also severely damage employee relations. Particular care must be taken where there is current or threatened litigation and there’s an overlap between the litigation disclosure exercise and responding to the data subject access request. It is important that an internal process is in place for identifying when a subject access request has been made so that it can be dealt with satisfactorily in the applicable time frame.

We have an experienced team advising businesses and HR advisers on their strategy in responding to such requests and managing an appropriate response efficiently and within the relevant time-scales. Please speak to Olivia Sinfield for more details.

Did you miss last week’s top three? Read the latest developments and please do contact us or your usual OC Contact for any further details.