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as far as finding that she failed the test because of her Asperger’s on the balance of probabilities; it was enough to find that the PCP made it substantially more difficult to pass. The appeal was dismissed. Day v Health Education England The Court of Appeal has examined who is protected by whistleblowing legislation under the extended definition of a worker. Whistleblowing laws protect workers from being subjected to detriment by their employer. The extended definition was introduced to protect those who work for an end-user after being introduced by a third party where the terms of their engagements are substantially determined by the person they work for, the introducer or both parties. Junior doctors take part in training periods where they are allocated for short periods in National Health Service (NHS) Trusts. The claimant entered in to a training contract in 2011 which was later taken over by the Local Education Training Boards, part of Health Education England (HEE) in April 2013. During this training period he was allocated to the Queen Elizabeth Hospital and entered in to a contract of employment with the NHS Trust. During his engagement, the claimant raised a number of concerns with the Trust and the Education Board about serious staffing problems which were affecting patient safety. He alleged that these were protected disclosures and, because he had made these, he was subjected to significant detriments by HEE. In order to bring a whistleblowing claim, the claimant had to prove that he fell within the extended definition of a worker and that HEE was his employer. This issue was heard as a preliminary issue at the ET, which concluded that the claims against HEE had no realistic prospect of success and struck them out. The ET judged that HEE did not substantially determine the terms on which the worker was engaged; they had a training relationship only which ran separately to
the employment relationship between the individual and the Trust. ...the employer must consider what steps can be taken to remove the disadvantage... The decision was appealed. The EAT dismissed the appeal on the ground that the claimant was already protected as a worker by the Trust because he worked under a contract of employment; the extended definition did not apply if the worker was already protected. The claimant appealed the EAT decision again to the Court of Appeal. The Court disagreed with the EAT and allowed the appeal. They decided that the legislation should be interpreted as applying the extended definition against each party, regardless of whether they were already protected. The EAT commented that, in some cases, this application can mean that both the introducer and the end-user are subject to whistleblowing provisions as both parties may determine the terms jointly or each determine different terms to a substantial extent. The Home Office (UK Visas & Immigration) v Kuranchie The Equality Act 2010 places a duty on employers to make reasonable adjustments to the workplace, working policies and support offered to employers to remove disadvantages faced by disabled employees at work. The EAT has examined how far employers are expected to go when considering which reasonable adjustment to make. The employee was disabled on the grounds of dyspraxia and dyslexia. She joined the Home Office in April 2006 as a higher executive officer and was promoted
on a number of occasions, becoming a team leader in April 2011. During early 2013, the employee spoke to her line manager about her disability and how a lack of adjustments to her work meant she had to work long hours to complete her workload. Her manager arranged specialist equipment and a static desk to be made available. The employee then emailed her manager in April 2013 making a flexible working request to amend her working hours. The request was to work the same number of hours over four days as longer hours allowed her to be more productive and she could complete more work. The email stated that she believed this was the only adjustment required and the request was approved in May 2013. The claimant went on to make claims of race discrimination and a failure to make reasonable adjustments at tribunal. Examining the reasonable adjustment claim, the ET found the employer has a provision or practice of giving the claimant the same volume of work as her colleagues. This placed her at a substantial disadvantage when compared to non-disabled colleagues because her disability meant she took longer to complete her work so was required to work longer hours. The reasonable adjustment that the employer should have made was to reduce her workload to avoid the disadvantage of having to work longer hours. The employer did not seek to make this adjustment so they were in breach of their duty to make reasonable adjustments. The employer appealed this decision on grounds that neither the medical evidence produced by the claimant regarding her disability, nor the claimant herself, requested a reduced workload as a reasonable adjustment. The EAT clarified that the critical question to be answered is whether the employer has taken such steps as is reasonable to take to avoid the disadvantage. Although the employer had taken some steps, including introducing compressed hours and providing assistive software, these steps did not remove the disadvantage the claimant faced. This decision confirms how broad the obligation to make reasonable adjustments is for employers; it is not open for the employer to rely solely on suggestions made by the employee themselves. Instead, the employer must consider what steps can be taken to remove the disadvantage and then decide whether these steps are reasonable to make, taking in to account all the circumstances. n
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Issue 32 | July/August 2017
| Professional in Payroll, Pensions and Reward |
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