REWARD
the Equality Act 2010 and agreed there were several workplace adjustments needed to enable him to manage his disability while working. However, he argued that an adjustment requiring colleagues not to approach him in a manner that may be construed as confrontational was unnecessary. The respondent also questioned whether his decision to stand when speaking to colleagues arose from his disabilities. The ET examined the evidence of the claimant’s disabilities in depth and made various findings about their extent and effect. Based on this, the ET concluded that his ‘meltdowns’, or when he became loud and angry, didn’t arise in consequence of his disability, but instead because he was short-tempered and didn’t like being told what to do, even by more senior colleagues. On appeal to the Employment Appeal Tribunal (EAT), the employee argued the ET had applied too strict of a test of causation to the effects of his disabilities. Instead, he argued the disability doesn’t need to be the sole or main reason for the ‘something’ arising in consequence of it. However, this was rejected by the EAT, who upheld that the ET hadn’t erred in law. Responding to criticism the ET had structured its outcome in an unorthodox manner, the EAT provided guidance to be used when deciding whether unfavourable treatment had taken place because of something arising in consequence of a disability: what are the disabilities? What are their effects? What unfavourable treatment is alleged and proved? Was that unfavourable treatment ‘because of’ an effect or effects of the disabilities? Alternatively, the EAT suggested looking at the matter in reverse, and asking: what unfavourable treatment is alleged and proved? What was the reason for that unfavourable treatment? What were the effects of the disabilities? Was the reason for the unfavourable treatment an effect or effects of the disabilities? In previous cases, it has been held that the causation test mustn’t be applied too strictly. However, this case shows there needs to be a clear link between the ‘something’ leading to the unfavourable treatment and the disability. The connection between the ‘something’ and the disability will usually be fact-specific and dependent on medical evidence. Here, the claimant may have displayed
symptoms characteristic of his disabilities, but it doesn’t automatically follow that such behaviour arose in consequence of his disabilities. Employers can make use of the list provided by the EAT when determining whether treatment may fall foul of the rules on discrimination arising from disability.
off sick due to stress and depression. While he was off, a further toolbox talk took place where the team were informed of a new requirement to test twice weekly for Covid. This message wasn’t then relayed to the employee. When he returned to work, he was again asked to test as other colleagues were Covid-positive but was sent home for refusing. At this point, he still wasn’t aware of the company’s Covid policy change and testing requirement. On the same day, he was suspended and invited to a disciplinary meeting for refusing to take a test, but told that if a test was taken, the meeting wouldn’t go ahead. He continued to refuse, resulting in him being told, in a disciplinary hearing, of the twice weekly testing requirement. He was given 15 minutes to decide whether he would follow this and informed his refusal to do so would result in his dismissal. His position didn’t change so he was dismissed, leading to him raising an unfair dismissal claim. The ET upheld his claim, confirming the proceedings and decision were ‘unduly hasty’ and based on the incorrect assumption he was already aware of the new testing requirement. The ET highlighted that: l too much reliance was placed on his general attitude towards Covid l it was unreasonable to give him an ultimatum with barely any time to consider a response l the employer should have considered alternative options to dismissal. The ET judge further stated that: “I am not satisfied that dismissal was reasonable. I accept that dismissal would be within the band of reasonable responses if the respondent had grounds for concluding that the claimant actually had persistently refused to follow an instruction to test twice weekly in accordance with the respondent’s policy. However, that would require there being clear instructions in place to do that which the claimant had been informed of and warned that failure to comply with that requirement may lead to dismissal.” This case is confirmation that a requirement for testing can be a legitimate and reasonable instruction, but employers must ensure employees are aware of such requirements and that they’re implemented in a fair manner. n
Failure to communicate reasonable management instruction can result in unfair dismissal An employer’s failure to properly
communicate a reasonable management instruction, and their subsequently hasty disciplinary process, resulted in a successful unfair dismissal claim for a matter which otherwise would have been within the band of reasonable responses. The ET recently heard the case of Fitzgerald v Bouygues Energies and Services, which involved a maintenance worker whose role was to undertake general repair work throughout a hospital, including areas which were open to other workers and patients. During the Covid pandemic, his employer conducted several risk assessments around how to work safely on site. These were communicated to the workforce in ‘toolbox talks’, where the managers shared general updates and information. These risk assessments identified a number of measures to be taken by the workers, including social distancing and the wearing of facemasks. The employee was deemed to be ‘sceptical’ of the risk Covid caused. He was therefore spoken to on several occasions by his manager regarding his attitude towards Covid protocols and given numerous verbal reminders of the need to follow the rules. Despite this, he persistently failed to do so. In late 2020, the possibility of Covid testing was discussed during a toolbox talk, although it was initially limited to those showing Covid symptoms. At this time, it was suggested, but not confirmed, that twice-weekly testing could be required once lateral flow tests became available to the general public. In January 2021, on a day when the employee wasn’t working, he was contacted and told a colleague had tested Covid- positive so was advised to test himself. This was declined and, on his return to work, he was sent to complete his duties separately from the rest of his team because he hadn’t tested. Following this, the employee went
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| Professional in Payroll, Pensions and Reward |
Issue 90 | May 2023
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