UK Employment Law Coffee Break: Reasonable adjustments and proposed legislation to deal with harassment and bullying
Published on 14th Sep 2023
Welcome to our latest Coffee Break in which we look at the latest legal and practical developments impacting UK employers.
Employer did not need to know the specifics of a disability before being required to make reasonable adjustments
The Employment Appeal Tribunal has upheld the decision of an Employment Tribunal that an employer was under a duty to make reasonable adjustments for a neurodivergent applicant, where it was aware that the applicant had dyspraxia and difficulties with making an online application, but not of the specific difficulties he had with the online process.
The claimant had indicated that he wished to apply for the role, attached his CV which included the information that he had dyspraxia and information about how dyspraxia affects people generally, and asked, in bold capitals, “BECAUSE OF MY DISABILITY” if he could do “AN ORAL APPLICATION” as “A 5 TO 10 MIN PHONECALL TO TALK ABOUT MY EXPERIENCE”. He asked if this could be arranged by email and that if they emailed him, he would supply a telephone number.
The employer replied explaining that the application process required him to complete the online application form, but that if he had concerns about filling out the form, he should let them know. The employer asked the claimant on a number of occasions which parts of the form he was finding it difficult to complete and explained he could receive assistance in submitting the form if necessary.
The claimant continued to state that he was happy to do the online form over the phone and would prefer to make an oral application, while the employer repeated its earlier position. The claimant never answered the employer's question about what aspect of the form he was struggling with and did not tell them that he could not even create a username and password and log on to the online form.
The claimant did not call the employer for fear of being laughed at in light of a previous experience with another employer. The Senior HR Manager also did not call the claimant because of his previous unsuccessful employment with them and the fact that it was not her direct responsibility to be involved in the recruitment process; she also believed that the claimant had successfully completed online forms in the past, and was not aware that he had assistance from his partner for this.
The Employment Appeal Tribunal agreed with the Employment Tribunal that the employer should have done more: "It was well within the range of judgments open to the Tribunal to conclude on the evidence that an employer acting reasonably, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form, but failing to respond in writing to a reasonable question, would have picked up the phone to speak to that individual in order to understand their situation."
Where a job applicant or existing employee has a disability, it is vital that the employer gives careful consideration to any reasonable adjustments that person may need during the recruitment process or the course of their employment. Some applicants/employees may be reluctant to give full details of their disability and the impact on them; while this might explain why an employer cannot make reasonable adjustments with the benefit of the full picture, it does not preclude an employer from trying to take reasonable steps.
Requests for reasonable adjustments should be received with an open mind and any enquiries made sensitively and supportively, as difficulties associated with mental health problems and neurodivergence will not be visible or readily apparent, and some disabled applicants/employees may find it difficult to share sensitive information and to trust how it will be received.
As was the case here, a neurodivergent job applicant may well need reasonable adjustments to the recruitment process. Adjustments such as verbal applications for those with difficulties with writing or on-the-job assessment for those with verbal communication difficulties or social anxiety are being increasingly offered by employers wanting to build an inclusive and diverse workforce.
Despite increasing awareness around the need to address harassment and bullying in the workplace, stories of toxic workplace cultures and staff being subjected to inappropriate behaviours continue to make the headlines. There are currently two private members' bills which seek to build on the existing legal framework to protect individuals from workplace harassment and bullying; while the bills have highlighted the need for continued action in this area, they also demonstrate the difficulties in imposing further legislation.
Harassment: the Worker Protection (Amendment of the Equality Act 2010) Bill
We have previously reported on proposals to strengthen protection against workplace harassment in a private member's bill which has received government backing. In its original form, the bill sought to introduce legal protection against third party harassment, create a new obligation on employers to take "all reasonable steps" to prevent sexual harassment, and to make provision for a compensation uplift in sexual harassment cases where there has been a breach of the employer duty.
New proposed third party harassment provisions not being pursued
Clause 1 of the bill as first presented would see employers liable for harassment of their employees where an employee was harassed in the course of their employment by a third party (such as a customer or client) and the employer failed "to take all reasonable steps to prevent the third party from doing so". What is reasonable in the circumstances would depend on the size and resources of the employer. These new provisions would have extended beyond just sexual harassment to harassment based on other protected characteristics such as race or sexual orientation.
The scope of this new obligation raised a range of concerns including what was termed a "chilling" effect on the freedom of speech, with employers potentially finding themselves on the end of legal claims due to a member of staff simply overhearing offensive or insulting comments made by a third party in the course of their work. In an effort to address this, the government introduced amendments in the House of Lords providing that, in certain circumstances, an employer would not be liable if harassment resulted from an employee overhearing conversations at work in which opinions were expressed on “political, moral, religious or social” matters; although this exception would not apply in cases of sexual harassment.
However, in light of continuing concerns, the government now appears at the report stage in the House of Lords to have reached a "compromise" with peers to ensure the bill proceeds, which has resulted in the third party harassment provisions being removed; instead "the situation will remain as it has been since the repeal of the third-party harassment protections 2013".
New statutory obligation to prevent sexual harassment limited to 'reasonable steps'
Clause 2 of the bill sets out the proposed new statutory duty for an employer to take "all reasonable steps" to prevent sexual harassment; responding to concerns from the House of Lords, the government has also indicated that this will be amended to simply refer to taking "reasonable steps". While this is a "lower bar", the government notes that it will still be a new duty and "as such, a duty to take reasonable steps is still an improvement for employees in respect of sexual harassment, compared to the status quo".
There are no proposed changes to the proposals that the duty would be enforced by the Equality and Human Rights Commission (EHRC), but employment tribunals would also be allowed to apply an uplift of 25% to employees' compensation in sexual harassment cases where the employer had failed to uphold the duty; "given that there is no cap on compensation awards in discrimination claims this could be significant".
Bullying: the Bullying and Respect at Work Bill
A separate private member's bill – the Bullying and Respect at Work Bill – has also recently been presented to Parliament. It seeks to introduce specific statutory protection against bullying at work with Rachael Maskell MP, in presenting the bill, highlighting reports from the TUC that bullying is the second biggest workplace issue and that "some 29% of workers will experience workplace bullying at some point and one in 10 has experienced it in the past six months" and "bullying costs UK businesses £18 billion a year, over 17 million days are lost each year due to work-related negative behaviours such as bullying, according to the HSE (Health and Safety Executive)".
The bill does not currently have government backing and the current speculation is that the bill is unlikely to proceed given the limits on parliamentary time.
Proposed new legal obligations
The bill supports:
- a statutory definition of bullying at work;
- a new distinct claim of workplace bullying to be considered by an employment tribunal:
- a Respect at work Code setting minimum standards for positive and respectful work environments; and
- powers for the Equality and Human Rights Commission to investigate workplaces and organisations where there is evidence of a culture of bullying or multiple incidents.
In setting out these proposals, the bill attempts to fill what has been seen as a lacuna in the current legislation. There is currently no statutory definition of bullying and an employee who considers that a complaint of bullying has been inadequately resolved by their employer can only bring claims in the Employment Tribunal where a protected characteristic is involved (enabling a claim under the Equality Act 2010 for discrimination and harassment) or where their circumstances are such that they consider they have no option but to resign, at which point they can claim constructive unfair dismissal (where they have two years' service) or wrongful dismissal. As well as the difficulties in establishing that a resignation should be treated as a dismissal by the employer for legal purposes, such a move obviously comes with significant personal and financial repercussions for an individual.
The very fact that both these bills have been presented and attracted publicity demonstrates the ongoing concern that harassment and bullying issues within workplaces are not always adequately addressed. However, what is clear is that introducing a further layer of legal obligations on employers in this respect is easier said than done.
Widening the scope of behaviours which could see employers (and potentially individual employees) facing liability in the Employment Tribunal and, which would be considered from the subjective viewpoint of the claimant, would need very careful consideration.
For example, Acas guidance states that bullying "can be described as unwanted behaviour from a person or group that is either offensive, intimidating, malicious or insulting; an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone" and that it might "be a regular pattern of behaviour or a one-off incident; happen face-to-face, on social media, in emails or calls; happen at work or in other work-related situations". If this was reflected in the legislation, the breadth of incidents which might potentially form a legal claim could be substantial; yet in many instances it is likely that an employer's own internal procedures remain the appropriate avenue of address.
Employers should take note that a new legal duty to take reasonable steps to prevent sexual harassment is likely to be passed and start considering how to address this internally. While employers will not yet face liability for third party harassment, it is still important to consider what safeguards are currently in place and what more can be done to ensure that the employee experience is a safe and supportive one for all.
An inclusive and safe work environment is key to attracting and retaining talent, reducing sickness absence and boosting innovation and productivity. In light of this, we are seeing many employers introducing wellbeing initiatives to support employees on a range of matters, including access to mental health champions, employee assistance lines and other resources. Employers should use this as an opportunity to ensure internal policies are clear on the behaviours expected and provide a supportive environment for employees to raise concerns and ensure that they are dealt with sensitively.
Specific consideration should be given to ensuring that policies and training reflect the fact that employees may now and in the future be working and communicating in different ways with advances in hybrid working arrangements and increasing use of digital channels and related technology. This should be reflected in updated and regular training for managers and staff.