Work and employment

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I've got over 18 years' experience now. I act mainly for individuals. I've also acted for companies in the past, so I understand both sides of the story when it comes to considerations in tribunal claims. I deal with all sorts of claims and a wide variety of matters. They include disability discrimination claims, unfair dismissal claims and victimisation, for example where somebody has raised a complaint and is saying that, because of that complaint, they have now been victimised by their employer. So that's my background.

Just slide three, please, Sam.

The agenda sets out what I'm going to be covering today. That is: what discrimination is in law; who qualifies as having a disability; what your rights are as an employee in the workplace or as a job applicant applying for a job; what reasonable adjustments are needed, or what duties employers have to make reasonable adjustments; sickness absence and how that should be managed; tricky situations at work and resolutions; and then questions at the end.

Next slide, please.

Moving on to what discrimination means, it means treating somebody less favourably than someone else because of a protected characteristic. In law, there are about eight categories of protected characteristic. They include age, gender reassignment, pregnancy, race, religion, sex, disability and sexual orientation. Those are the categories that are recognised in law.

What is less favourable treatment? That can be anything that puts somebody with one of the protected characteristics, for example disability, at a disadvantage compared with somebody who does not have that characteristic. So, a disabled employee is being treated less favourably in comparison with somebody who is not disabled.

There is no legal definition of what putting somebody at a disadvantage is, but examples in the workplace could include excluding someone from opportunities or benefits, making it harder for someone to do their job, or causing somebody upset and distress. Harassment is one of the claims recognised in law, so anything that is detrimental or classified as a disadvantage can be covered within that.

It can still be discrimination even if the less favourable treatment was not intended. If it is a side effect of something the employer does, for example, that is still less favourable treatment and can still be discrimination under the law.

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The law applicable to discrimination claims in the workplace is the Equality Act 2010. That statute is there to protect people. It also defines for employers what their duties are and where their obligations lie. Discrimination law aims to create a level playing field so that people are employed, paid, trained and promoted because of their skills and their ability to do the job, and are not treated less favourably because of their disabilities.

The Equality Act also applies to areas of employment including job adverts and the recruitment process. For example, you cannot have a job advert that says, "We're looking for young, fresh talent," as that could be age discrimination. You have to look at the wording and see whether there is anything in it that sets off alarm bells.

The whole recruitment process, the terms and conditions of work, conduct during employment and social events within the work context are all covered under the Equality Act. This also includes dismissal and work-related matters. I have cases involving parties in the evening where there is a grey area over whether something was work-related or personal, but those types of situations can potentially be covered under the Equality Act. It covers quite a broad range.

Slide six, please.

What types of discrimination are there in law? There are about four categories, and I'll go through those to explain what they are.

Direct discrimination is where someone with a protected characteristic, for example disability, is treated less favourably than someone without that characteristic. It also covers situations where someone is treated less favourably because of their association with a person who has a protected characteristic. For example, somebody may be caring at home for someone who has a brain injury. That person is working in the workplace but is being treated less favourably because of their association with a disabled person. That kind of claim can still be made even if the person does not directly have the disability.

Indirect discrimination occurs where an employer operates what often appears to be a neutral practice, or has neutral criteria that apply to the workplace, but it has a negative impact on certain employees or groups of employees who share a protected characteristic. The impact indirectly amounts to less favourable treatment relating to that disabled individual.

Harassment is where somebody engages in unwanted conduct towards another person related to a protected characteristic, which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading or humiliating environment. It could be comments, looks, or asking someone to do things they cannot do very well. As long as it creates an awful environment for that person, that is basically harassment.

Victimisation is where a worker has done what we call a protected act. A protected act can be bringing a legal claim or formally raising a grievance and complaining to an employer about discrimination or harassment. If, as a result, that person is victimised or treated even worse because of the complaint they have made, they have a separate claim for victimisation.

Next slide, please, Sam.

It is against the law to discriminate against someone because they have a condition or impairment that is considered to be a disability under the law.

It is also against the law to discriminate against someone because it is believed that they have a disability, even if that is not the case. It could be the perception that someone is disabled even if they might not be disabled. It could also be because they have a connection with someone who is disabled, for example an associate, colleague or friend.

If somebody is discriminated against because of someone they know who is disabled, for example because they are caring for them, that is disability discrimination by association. That is also not permitted. It could, for example, apply to a volunteer for a disability charity who is discriminated against because of their work.

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I'm going to go through the definition of disability, because it does not apply across the board to everybody. If you are not disabled under the Equality Act, you are not protected under that legislation.

Some conditions are expressly deemed to be disabilities. Deemed means that they are automatically considered in law to be a disability and you do not have to prove it. Examples include blindness, cancer and HIV infection.

You are also protected if you have a progressive condition, for example Alzheimer's or Parkinson's disease. Someone with a progressive condition is considered by law to have a disability as soon as it starts to have an effect on their normal day-to-day activities, as long as this is likely to be long-term. The effect does not have to be substantial as long as it is likely to become substantial in the future.

For example, somebody with Parkinson's might start with a few symptoms that do not affect them too much, but later in life the condition could get worse. You have to look at where the person is with the condition at the time when considering whether they are disabled.

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The Equality Act sets out a technical meaning of disability that does not necessarily correspond with common perceptions of disability among the general public. In legal terms, the law says that someone is disabled if both of these criteria apply: they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Long-term means that it has lasted for 12 months or is likely to last for 12 months.

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I'm going to break that down a bit further. What does each element of the definition mean?

A physical or mental impairment includes any physical difficulty. This can mean muscular weakness or cramps, as well as more obvious conditions such as being unable to walk. Mental impairment can cover a wide range of problems relating to mental functioning, including what are known as learning disabilities or mental health conditions such as depression.

Somebody could have two or three disabilities at the same time. They could have a physical disability and a mental impairment, and they might have, as a knock-on effect or a secondary disability, depression or anxiety. It is not necessary for there to be just one impairment or one disability.

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Long-term means that it has lasted for at least 12 months or is likely to last for 12 months. A condition can still be long-term even if you are in remission or not displaying symptoms, if it is intermittent or likely to recur. For example, if your condition fluctuates, it might affect you for a few months at a time and at other times it might not affect you. Long-term means that it is likely to last for 12 months or has lasted for 12 months. Epilepsy is an example of that.

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The impairment has to have a substantial effect. That means it has to be more than minor or trivial. There are three types of case in which a person's ability to carry out normal day-to-day activities is deemed to be substantially adversely affected, even if at the time the effect may in fact be minor or non-existent. These are where the substantial effect is likely to recur, the condition might be progressive, or treatment is reducing the effects of the impairment.

Even if you are taking medication and that is alleviating the symptoms, it does not mean that the disability is not still having a substantial effect on you.

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The effect must be on day-to-day activities. What do we mean by day-to-day? That could include walking, driving, shopping, reading, writing, washing and dressing: everything you do from day to day. It does not have to involve specialist activities for particular jobs. It is about how you manage things every day in your personal life as well.

In the case of mental and emotional illnesses, the categories of day-to-day activity most likely to be affected include memory, the ability to concentrate, learn or understand, and the perception of physical danger. These can still affect day-to-day activities because of how you manage your life and do everything from day to day.

Some conditions are excluded from being an impairment, for example addiction to alcohol or nicotine. Those conditions cannot themselves be considered disabilities. However, it should be borne in mind that if an employee is addicted to alcohol and the effects lead to depression or some other impairment, the knock-on effect can be a disability in itself. You have to look carefully at the whole situation.

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Who is responsible in the workplace? The main responsibility is with the employer. By law, all employers must make sure that they do not unfairly discriminate in any aspect of work. They have to take positive steps to prevent discrimination and do all they reasonably can to protect people from discrimination by others. They have a duty to look after the wellbeing of their staff, and this is called a duty of care.

Not doing these things could cause harm and distress and can result in discrimination complaints and tribunal claims from staff. Employers can be held responsible for the actions of other employees. If the employer says, "It wasn't me, it was my manager who discriminated against Joe Bloggs," the employer can still be liable because of what we call vicarious liability. The employer at the top is still liable for the acts of its staff.

In legal claims, you can claim against the employer as a company and you can also claim against the individuals. You can name the individuals and the employer, so you can have multiple respondents in the case. Anyone who discriminates against someone at work is also responsible for their own actions, which is why those individuals can be named.

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What is discrimination arising from disability? This is where a member of staff or worker is treated unfavourably because of something arising in consequence of their disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

For example, somebody's visual impairment might mean that they cannot work as quickly as their colleagues, and the employer dismisses them because of their lower output or because they are doing less work or not working as efficiently. This dismissal will be discrimination arising from disability unless it is objectively justified. For an employer to justify the treatment, they have to show evidence to support their assertion that it is justified and not rely on generalisations.

Knowledge is key. If an employer does not know about the disability of one of its members of staff, they cannot be liable for the discrimination. You have to tell people that you are disabled and about your condition, because then they are on notice and their duty is triggered. The duty of care is triggered to make adjustments in the workplace and to make sure that they are not inadvertently treating you less favourably.

Sometimes staff do not tell their employer because they want to hide it or do not feel comfortable. However, if an employer suspects that somebody might be struggling or that there are health reasons, they cannot simply ignore the issue. They have a duty to send the person to occupational health, for example, or write to their GP to try to understand better what support might be needed in the workplace.

Some of my clients say, "I don't think I am disabled, but I've got some symptoms and signs." Sometimes it is to your advantage to put an employer on notice because then there is extra protection available for you if you need it in the workplace.

Employers are obliged to make reasonable enquiries about someone's health. Even at the application stage, if there is a job applicant, they can ask whether the applicant needs any adjustments for the interview process.

Next slide, please.

I just want to touch on reasonable adjustments and what they are. An employer has a duty to make reasonable adjustments to the premises or the way they work to help disabled job applicants and employees do their job better and support them in their work, if the adjustment would help.

Examples could include making physical adaptations to the premises. I have had clients who have said, "I can't work in sunlight because I'm allergic to sunlight," and the employer has moved their desk. Some dyslexic individuals need software to help them with computer work. There are all sorts of aids and adjustments that can be made to assist someone in the workplace.

Some clients say, "I don't want to travel during rush hour. I can't travel as quickly," or ask for adjustments to their working hours. These are all types of adjustment that an employer might be obliged to consider.

The key is that they have to be reasonable. If there is disproportionate expense to the employer, that might not be a reasonable adjustment for them. If a claim is brought later, an employment judge will look at the size and resources of the employer and what is reasonable for them. What is reasonable for a small company might not be the same as what is reasonable for a massive retailer with a lot of resources and staff, which can adjust rotas and hours. It depends on the context as well.

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If the employer fails to make reasonable adjustments, this is also disability discrimination against the employee. As I said before, employers are only obliged to make reasonable adjustments if doing so will actually assist the employee. They are not obliged to make every adjustment possible. It has to be reasonable and should not be too expensive for them to do.

It is usually the employer who has to pay the cost of making the adjustment. They cannot pass the cost on to the employee, or should not be passing it on. I have had clients say, "They made me buy my own software for the computer." That is not really permitted.

There is a scheme called Access to Work, which can assist employers in making adjustments and providing equipment.

Again, knowledge is key. It is important that the employer has knowledge of the disability. If they do not have knowledge and there is no way they could know about the disability, the duty to assist is not triggered. It is therefore really important that they have that knowledge.

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I'm just going to talk about how you determine what adjustments are needed. Most often, the employer will write to the person's GP or send them to occupational health. The reason for this is to help the employer understand what they should be doing to assist that person in the workplace.

It also gives the employee credibility and gravitas when asking for things: "My doctor says this. Occupational health says this. You need to be doing X, Y and Z to help me work better in the workplace and help me do my job."

That medical evidence is important if you bring a legal claim later, because it is evidence that adjustments were recommended but not implemented.

Again, I stress that they have to be reasonable adjustments. Even if occupational health says that a member of staff wants particular hours, wants to work from home, wants flexible working or something else, if the employer cannot accommodate that and it is not reasonable for them to accommodate it, it is not necessarily discrimination. It has to be an adjustment that is reasonable for the employer as well as the employee.

Generally, employers must not ask a job applicant about their health, including any disability, before offering them work. There are some exceptions, including where it is necessary to establish whether the applicant will be able to carry out a function intrinsic to the work. Generally, though, they cannot ask unless it is to make adjustments to the interview process, facilities or access to the place where the interview is being held.

They can later make a job offer conditional upon completion of a satisfactory health questionnaire. If the responses to the questionnaire indicate that the applicant has a disability, the employer's duty is triggered to consider making reasonable adjustments.

If they were to dismiss you at that stage, after a job offer had been made and health questions answered, that would suggest discrimination and there could possibly be a legal claim. They should not withdraw a job offer unless they have properly considered what adjustments are necessary and whether they can provide them.

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In relation to absence, some disabled staff may be off sick for a while if they have had an injury or are trying to return to work. You usually have absence management and certain trigger points that set off another process, for example a dismissal process because of ill-health capability, as we call it in law. This involves managing the absence and potentially managing the person out of the workplace and dismissing them because of too much sickness absence.

Reasonable adjustments can be made to the trigger points. Again, what is reasonable depends on the circumstances. Sometimes employers might need to make adjustments around absence penalties or the points that accrue.

It might be that they make an adjustment so they are not going to count all of your sick leave when looking at whether they should start a capability process to dismiss you. They might discount some of the sick leave if it is related to your disability and only take into account other sick leave that is unrelated, for example stomach bugs or COVID. That is one adjustment they can make to the sickness absence taken.

Another example of a reasonable adjustment could be recording disability absence separately from other sickness absence. One could be called disability leave or disability-related sickness absence. Ideally, the employer should be talking to the person, listening to them, considering their special circumstances and unique situation, and getting medical advice from occupational health or the GP before following through with any absence process or dismissal process.

They need to take into account why somebody needs time off and how much time they need. I have had cases where somebody has been off for about three months and that has triggered the dismissal process. This has been held to be unreasonable because the employer was large, could have accommodated the absence for a bit longer, and there was a prognosis that the person would return to work.

All those factors are taken into consideration. Equally, that three-month absence for a smaller employer might be held not to be sustainable, and that employer might be justified in dismissing the person. Again, that goes back to the idea of what is reasonable and what is not. For some employers, it might be reasonable to hold off for a couple of months, whereas larger employers might be able to allow six months' or a year's absence and sustain that.

The key is not to treat the person badly or put them at a disadvantage because of their disability. Otherwise, they may be able to claim disability discrimination.

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I'm just going to touch on sickness absence pay. How much pay someone is entitled to while they are off work depends on what their employer offers as part of their contractual terms. Statutory Sick Pay is the minimum that employers must pay if the person is eligible for it.

Then you have contractual sick pay, which is more than the legal minimum. You may have enhanced sick pay in your employment contract. Some employers will give you six months to one year on full pay when you are off sick, whereas some employers will only pay Statutory Sick Pay. You need to check your employment contract and the organisation's absence policy to understand your rights in this regard.

Next slide, please.

Now, returning to work after absence. When someone returns to work after being off for quite a period, they should talk with their employer. That is good practice, and the employer should have a meeting with them to make sure they are ready to return and have the support they need.

Employers should have a process that they follow when someone returns. This might involve following their absence policy, referring the person to occupational health to understand what adjustments might be needed, and writing to the GP if necessary.

They should also ask the person, "What do you want us to tell other people about your illness or disability, if anything? Do you want to keep it confidential?" Some employees will want other people to know, whereas some will want to keep it private. Those discussions need to be undertaken.

If the doctor has made recommendations about adjustments, the employer needs to consider them and have a discussion with the member of staff to ease them back into the workplace. That might include a phased return, where the person is on reduced hours when they go back and then builds them up slowly as they get used to the work environment again, especially if they have been off for a long time.

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Other steps employers can take include having good policies in place, including policies that promote equality. They should train their managers and staff on preventing harassment, equality, their obligations as managers, how they should treat staff, and how they should consider adjustments. I'm surprised at how many managers still do not understand the basics of discrimination legislation.

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Finally, when looking at resolving issues, in most cases employees should first try to have an informal discussion with their manager. I suggest looking at the grievance process and what it recommends. It usually starts with an informal discussion with the manager.

However, if that does not work, I suggest submitting a written grievance and putting things in writing. That creates an evidence trail showing what you are asking for and whether it is being ignored. That evidence trail is important in protecting your position if you want to bring a legal claim later. If everything is discussed verbally, it is hard to prove what has been said. If it is in black and white in an email, for example, it is easier to protect your position.

The reason you need to raise a grievance, if it comes to it, is that any compensation awarded by a judge later, if you bring a legal claim, can be reduced by up to 25% if you fail to follow the internal grievance process.

Equally, if an employer does not deal with the grievance properly or there are delays, the employer can be penalised. I have a client at the moment whose grievance has not been looked at properly for six months. We will be arguing that the employer should be penalised and that compensation should be increased by up to 25% if the judge finds that the employer should have followed a better process.

That is the end of my talk. I think the next slide just says, "Any questions?"