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Donelien v Liberata UK Ltd Under the Disability Discrimination Act 1995, and the current Equality Act 2010, employers are required to make reasonable adjustments when they know, or could reasonably be expected to know, that an employee is disabled. The court of appeal has considered the issue of when an employer is reasonably expected to know of a disability, known as ‘constructive knowledge’. A long-serving court officer began having high levels of absence from 2008. She initially informed managers this was because of low energy levels and high blood pressure. In a return to work interview in November 2008 she stated her illness was work-related due to stress. A letter was received from the employee’s general practitioner (GP) in January 2009 stating the employee was receiving treatment for hypertension, stress, low energy and tiredness, and suggested a phased return to work. The employer agreed the phased return and suggested referring the employee to occupational health (OH) in February. The employee refused, stating the GP letter outlined all the necessary information. Further absences occurred and a GP letter in April 2009 indicated the employee suffered from an upset stomach and right wrist pain. At an absence interview in May, the employee refused to cooperate with absence reporting procedures and maintained she would not be assessed by OH. A third GP letter in June 2009 highlighted she was receiving continued treatment for hypertension and stress. An assessment was carried out by OH the same month, although the employee did not give consent for the assessor to contact her GP. The OH report stated the employee was suffering from hypertension; however, the situation could be resolved by addressing outstanding employment issues. Following a request for clarification, a second OH consultant stated the problem was “managerial rather than medical” and there was no reason to believe the employee suffered from a disability. Disciplinary proceedings were commenced. The employee produced a further GP note which stated her sickness absence was due to work-related stress. The employee was subsequently dismissed for a failure to follow procedures and to work her contractual hours. She made a number of tribunal claims, including a claim for a
a Spanish supermarket chain. Irregularities between sales numbers and stock levels in the supermarket were identified by the shop manager and reported to the employer. The employer decided to install CCTV cameras in the supermarket to monitor whether theft was taking place. Visible and hidden cameras were installed, with the employees only being informed that monitoring was taking place through the visible cameras. The employees were invited to individual meetings to discuss allegations of theft. During these meetings, footage from the hidden cameras was shown which identified the employees were stealing supermarket stock themselves, and helping others to steal. The employees admitted theft and they were dismissed. Under Spanish data protection laws, individuals have a right to be informed about the processing and storage of personal data. The employees challenged the use of the covert videos through the Spanish court system, arguing they had not been told about the covert cameras so their rights were breached. The court, and Spanish appeal court, found the employer had lawfully obtained the CCTV video footage; the use of covert cameras was justified as the employer had reasonable suspicions of stock theft and there were no other methods available to sufficiently protect the employer’s rights. The employees subsequently made a claim to the ECHR alleging the covert surveillance itself, and the use of footage obtained by covert surveillance in the dismissal process, breached their rights to privacy under article 8 of the convention. The ECHR highlighted that the obligation on the Spanish courts is to determine whether there was a correct balance struck between the competing rights i.e. the employees’ rights to privacy and the employer’s business interest in undertaking covert surveillance to protect their goods. In this case, the court found the use of covert surveillance was not a proportionate method of meeting the employer’s interests. Not only did the surveillance breach Spanish data laws, the employer could have protected their rights by taking steps such as providing general information about covert surveillance and informing employees data was being processed. Therefore, the ECHR judged the employees’ privacy rights were breached by the covert surveillance. n
failure to make reasonable adjustments. Although the ET found the employee did suffer from a disability, they determined that the employer could not reasonably have known she was disabled. They judged the employer had done all that they could reasonably have been expected to do to find out about her health problems, which was not helped by the lack of cooperation from the employee herself.
...employees’ privacy rights were breached by the covert surveillance
On appeal, the EAT found the employer could not reasonably have known she was disabled when considering all the evidence available to them. They had properly considered the OH advice, her return to work meetings, discussions with the employee and GP letters. Following a further appeal, the court of appeal outlined that the task for a tribunal is to determine what the employer could reasonably have been expected to know based on the facts of this case. They also reiterated that employers have to make a factual judgment of whether the employee is disabled; they cannot simply take the opinion of medical advisers as their own. Applying this to the facts, the court agreed that the tribunal was entitled to find the employer did not have constructive knowledge the employee was disabled based on the information they had available to them, including all the medical advice, GP letters and the employee’s lack of communication. The appeal was dismissed. López Ribalda and others v Spain Employees have a right to respect for private and family life under article 8 of the European convention of human rights (‘the convention’). Restrictions can be placed on the right by employers to achieve a legitimate business aim, so long as their methods are proportionate and necessary. The European Court of Human Rights (ECHR) has examined whether covert surveillance set up by an employer to monitor suspected theft breached employees’ privacy rights. Five employees worked as cashiers in
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Issue 39 | April 2018
| Professional in Payroll, Pensions and Reward |
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