REWARD
Discrimination, TUPE, unfair dismissal
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Job ad requiring driving licence leads to discrimination In the case of Drummond v HM Revenue and Customs (HMRC), the employment tribunal (ET) had to consider whether refusing a job application based on the employee not having a usable driving licence was fair. Fainting episodes meant the employee was banned from driving by the Driver and Vehicle Licensing Agency, but he had funding in place from Access to Work, which Employers have a duty to implement reasonable adjustments to support candidates to complete and submit job applications provided him with a driver where needed for work-related activities. Most of the time, the employee travelled to sites with another caseworker, so there was never a need to use the Access to Work funding. However, when he applied for an internal promotion, the employee was
automatically rejected from the role after clicking a tick-box on the application portal saying he couldn’t drive. He contacted the human resources (HR) team to ask if he could submit a manual application so he wouldn’t be filtered out, and explained he had support in place to enable him to travel without a licence. Having over 20 years’ experience in the field and relevant qualifications, the employee believed he was a strong candidate for the position and, given the opportunity, would do really well in the next round of recruitment assessments. His request to submit a manual application was rejected by the HR team, so he went on to raise a grievance. In a letter dismissing the grievance, the regional manager outlined that there were alternative jobs within the organisation which the employee could apply for, some at more senior levels, so he was not being treated unfairly because of his disability. The manager stated that, since the organisation was large, a reasonable adjustment for him included offering an alternative role, rather than incurring costs that would enable the employee to perform the one he had originally applied for. Following this, the employee raised claims for indirect discrimination and failure to make reasonable adjustments; both were upheld. The ET found the employee
had been treated unfavourably and that the practice of automatically rejecting his application was indirect discrimination, as the employer couldn’t show this was a proportionate means of achieving a legitimate aim. The ET further stated that having a driving licence could have been listed as desirable criteria, but it wasn’t reasonable to decline his application based on this. The employee was awarded around £20,000 compensation. It’s important to remember that claims for discrimination can be raised at the recruitment stage, as well as throughout the employment lifecycle. As such, employers have a duty to implement reasonable adjustments to support candidates to complete and submit job applications. This includes online application forms during assessments and when attending interviews. Those who fail to do so may find themselves faced with similar claims of indirect discrimination. TUPE or not TUPE? The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) set out an employee’s right to transfer to a new employer, and continue in their role, where a service provision change applies. The case of Tuitt v London Borough of Richmond upon Thames considered the relevant activities fulfilled by the employee
| Professional in Payroll, Pensions and Reward | November 2022 | Issue 85 42
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