Insights Worked Up, your monthly employment & immigration law lowdown – May 2024

Welcome to this month’s edition of Worked Up 2024 – your one-stop shop for the latest updates in employment and immigration law.

In light of Mental Health Awareness Week, this edition will examine some recent case law and developments in this area, including the issue of triviality in the context of discrimination arising from a disability, the government’s latest proposals to tackle “sick note culture” and whether a trial period in an alternative role should be considered a reasonable adjustment.

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Following a recent spate of regulatory action, employee monitoring is back in the spotlight once again. In this video, Tom Mintern outlines the key issues for employers to be aware of.

Horizon scanning

If you want to stay ahead of the curve and keep updated on the key employment and immigration changes (including proposed legislation, consultations and case law) on the horizon over the next 24 months, check out our “What’s on the horizon” tracker.

Ms N Bodis v Lindfield Christian Care Home Ltd [2024] EAT 65

Facts: The claimant in this case suffered from anxiety and depression. Following an investigation and disciplinary hearing, her employer found her responsible for a series of incidents at the care home where she worked, including vandalising pictures of female staff and turning off the boiler. The claimant was summarily dismissed and brought multiple claims including discrimination arising from a disability.

Judgment: The Tribunal accepted that the blunt and evasive answers provided by the claimant during the investigation process arose in consequence of her disability. They also found that this had influenced the employer’s decision to take the matter forward to a disciplinary which ultimately resulted in her dismissal. However, as this had only been a “trivial” influence and not the “effective cause”, the Tribunal held that the decisions taken did not arise from her conduct and that other factors were more important.

The Employment Appeal Tribunal disagreed with this approach. To establish liability for discrimination arising from a disability, the unfavourable treatment does not need to be solely or principally because of the “something arising”. Instead, it can be a minor component provided there is sufficient causal significance. In this case, the claimant’s demeanour was a factor which was clearly taken into account.

Takeaway: This case highlights that an individual’s conduct arising from a disability, even if a minor contributing factor to a decision taken by their employer, can still amount to discrimination arising from a disability under the Equality Act 2010. Employers should ensure that their internal processes are adapted to accommodate disabilities where appropriate and that any action taken is capable of being objectively justified.

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In the wake of Rishi Sunak’s latest announcement unveiling a fresh welfare plan aimed at combatting Britain’s “sick note culture”, the Department for Work and Pensions, along with the Department of Health and Social Care, has issued a call for evidence to explore reforming the fit note process.

With over 11 million fit notes issued last year alone (with 93.8% of employees being deemed unfit for work by their GPs) and rising recorded long-term health conditions in the working population, it’s perhaps unsurprising that the government is taking steps to reform the existing system. The consultation seeks to provide the government with insight on how it can better support individuals with long-term health conditions to “start, stay and succeed” in work. The consultation considers whether issuing fit notes is an appropriate use of a GP’s time and raises questions on the difficulties healthcare providers may face when consulting with individuals requesting fit notes.

Alongside the consultation, the government is looking to implement new, more tailored processes which cater to an employee’s specific health needs. These are purported to include the establishment of a triage service which guides individuals seeking fit notes towards pathways best aligned with their health and employment needs. The new ‘WorkWell’ scheme would also include processes for assessing individuals’ job capabilities, facilitating structured conversations about work and health with trained professionals and directing individuals to more intensive support where necessary.

Takeaway: It’s currently unclear how effective the government’s proposed plan will be, and it may be the case that these processes could potentially hinder rather than help employees on long-term sick leave in their return to work. With more employees now on extended sick leave than ever before, we recommend employers assess their existing sickness policies to ensure they remain suitable for their intended purpose, striking the right balance between prioritising employee welfare and employer objectives.

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Rentokil Initial UK Ltd v Mr M Miller [2024] EAT 37

Facts: The claimant in this case worked as a pest control technician. After being diagnosed with multiple sclerosis, he was unable to continue in his role and applied for an administrative position instead. He was unsuccessful following an interview process and was dismissed. The claimant claimed that failing to place him in the administrative role on a trial basis amounted to a failure to make reasonable adjustments under the Equality Act 2010.

Judgment: The Tribunal upheld his claim and the Employment Appeal Tribunal (“EAT”) agreed. Where a disability places an employee at a substantial disadvantage to the point they are unable to continue in their role, there is no rule of law which says it cannot be a reasonable adjustment to offer a trial period in a new position, or that it must be guaranteed that the employee would be successful. If an individual is almost certainly at risk of dismissal, it is open to the Tribunal to consider whether a trial period in a different role would remove or reduce that risk, such that it was a reasonable step for the employer to take.

Takeaway: This case confirms that not only should alternative roles be considered in the context of reasonable adjustments, but trial periods for such roles should too. There will naturally be scenarios where this would be inappropriate, such as where an individual does not possess the necessary skills or experience, but careful thought should be given to the possibility in order to mitigate the risk of potential discrimination claims. Whilst the claimant in this case suffered from a physical disability, it’s worth noting that changes to an employee’s role and/or responsibilities will be equally applicable for mental health conditions and is specifically referred to in the Acas guidance published last year.

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Last week, a nationwide outage of automated facial recognition gates (“eGates”) at UK airports caused several-hour delays for tens of thousands of passengers. UK Border Force had to resort to manual passport checks, serving as a timely reminder of the UK’s reliance on eGates at the UK border.

Since their introduction in 2008, eGates have been used by Border Force to streamline passenger processing. They have successfully reduced waiting times for travellers, but longstanding concerns regarding their security and reliability persist. Nationals of an EU country, Australia, Canada, Iceland, Japan, Liechtenstein, New Zealand, Norway, Singapore, South Korea, Switzerland or the USA (as well as British nationals) are able to use the eGates, as long as they have a biometric passport and are at least 12 years old.

A recent government inspection highlighted a number of issues. The primary concern was the lack of direct interaction between Border Force officers and passengers. It noted that this reduction in face-to-face contact limits officers’ ability to effectively screen and identify individuals who may require additional scrutiny or support, such as vulnerable passengers or potential security threats.

The eGates are also not as technologically sophisticated as many assume. They often struggle with the subtleties involved in managing the entry and exit of migrants. For example, if a visa holder leaves the UK and tries to re-enter towards the end of their visa’s validity period with the intention of entering as a visitor, an eGate will not recognise this change in status.

Also, due to the ease at which passengers can travel through the eGates, many non-visa nationals assume that they are permitted to freely work and reside in the UK without limitation. The reality is that they are bound by a number of strict rules outlined in the Immigration Rules which are crucial to understand in order to avoid unintentional violations. Now that visitors no longer receive stamps in their passports, if they enter via the eGates they also need to keep a clear record of their dates of entry to the UK to ensure they don’t exceed their maximum period of stay.

Migrants entering the UK for the first time with entry clearance, or those unsure of the permission under which they’re entering (for example, as a visitor or on a specific visa), should ideally interact with a Border Force officer. This will ensure that all entry conditions are correctly understood and complied with, reducing the risk of inadvertent rule violations which could affect future immigration applications or status within the UK.

This issue underscores the need for reform in this area. The government needs to find a balanced solution that integrates technological efficiencies with essential human oversight to maintain robust border security and passenger safety.

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