Insights Worked Up, your monthly employment & immigration law lowdown – October 2023

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

This month’s stories cover key developments relating to sickness and disability discrimination. Over the last few months, we’ve seen more and more queries in this area, which perhaps isn’t surprising as the CIPD has recently reported that 2023 has the highest level of employee sickness in a decade and earlier this year ONS reported record levels of long term sick leave.

Before jumping into our latest updates, feel free to give a listen to Seth Roe talking about employer obligations in connection with the current Russell Brand allegation alongside Philippa Childs from BECTU. The section starts at 14:15, Seth’s section starts at 20:10.

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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.

Acas has recently released updated guidance on recording and reducing sickness absence which includes advice on: (i) policies; (ii) unauthorised absence; (iii) sick pay; (iv) fit notes; (v) doctors reports; and (vi) return to work plans. The guidance also now includes a new definition of sickness absence and sections relating to recording and reducing sickness absence, and absence trigger points:

Definition of ‘sickness absence’. The sickness absence definition has been expanded to include any period when an employee is unable to work due to injury or other medical reason (previously the definition was limited to illness). The updated guidance also emphasises the importance of supporting employees who are returning to work after an absence and provides advice on how to manage stress and anxiety in the workplace, which can contribute to sickness absence.

Recording and reducing sickness absence. Acas recommends that the frequency, length, and reason for an absence should be recorded. However, Acas quite rightly notes, that when it comes to managing the absence, a single long-term absence with a clear reason should be treated differently to repeated short-term absences. Acas suggests that recording different types of absences separately may help the employer avoid discriminating against employees when taking steps to reduce absences.

Absence trigger points. Acas advises that, if a business opts to include review of employee absences and trigger points, these should be communicated in the business’ policies. Although Acas acknowledges the trigger points are helpful for managing absences, they suggest that individual circumstances need to be considered on a case-by-case basis to avoid discrimination.

Takeaway: While the new Acas guidance is nothing ground-breaking, it does drive home some key considerations that employers should bear in mind when monitoring and managing absences. In particular, there is much to be said on the benefit of well thought out absence policies, which can help reduce absences in future. For example, keeping an open dialogue between an employer and employee enables businesses to spot trends and deal with any issues at the outset, hopefully avoiding the absence altogether.

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AECOM Ltd v Mr C Mallon [2023] EAT 104

Facts: Mr Mallon, who has dyspraxia, sought to apply for a position in AECOM’s research and development team. To apply, candidates had to complete an online application form. Mr Mallon contacted AECOM’s HR department, disclosing his dyspraxia and requesting an oral application due to his disability.

AECOM’s HR manager insisted Mr Mallon completed the online form, offering assistance if required. Mr Mallon did not explain his inability to create a username and password for the online form, continuing to request an oral application. As Mr Mallon was unable to submit his application, he filed a disability discrimination claim arguing that AECOM had not made reasonable adjustments to accommodate his disability.

The tribunal found that AECOM had a two-step application process that put Mr Mallon at a disadvantage due to his difficulty with written communication. The tribunal awarded Mr Mallon £2,000 for injury to feelings, plus £700 in interest.

Judgement: The Employment Appeal Tribunal (“EAT”) upheld the tribunal’s finding that an employer has a duty to make reasonable adjustments when the employer’s online application process put a candidate with dyspraxia at a disadvantage.

Takeaway: This case highlights the importance of carefully considering and implementing reasonable adjustment requests from job applicants. Employers need to ensure that they practice effective communication with applicants in the recruitment process to understand their needs, especially where numerous aspects of their application process is online.

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Pilkington UK Ltd v Mr A Jones [2023] EAT 90

Facts: Mr Jones, a long-serving employee at glass manufacturer Pilkington, developed a debilitating shoulder condition following radiotherapy. He was signed off work and Pilkington’s occupational health provider concluded that he would be permanently prevented from carrying out physical work but could return to a non-manual role in the future. Whilst Mr Jones was on sick leave, surveillance agents engaged by Pilkington filmed him supposedly working on a local farm and engaging in physical manual labour. Pilkington swiftly dismissed Mr Jones on grounds of gross misconduct for undertaking secondary employment.

Mr Jones brought a claim under section 15 of the Equality Act 2010 for unfavourable treatment because of something arising in consequence of his disability. He argued that the “something arising” was Pilkington’s mistaken belief that he was undertaking physical activity whilst on sick leave. Mr Jones asserted that he had been visiting the farm as a means of therapy for his mental health condition as facilitated by his GP. The tribunal upheld the claim and found that the dismissal was a consequence of Pilkington’s erroneous belief which amounted to unfavourable treatment.

Judgment: The EAT upheld the decision of the tribunal. The key question in this case was whether a belief could constitute the “something arising” under section 15 of the Equality Act 2010 which requires an objective analysis. The EAT confirmed that it can. If the disability is known by the employer, there can be an objective finding that a particular state of mind arises from the disability. An important element in this case was that Mr Jones’ absence was due to sickness caused by his disability. Whatever erroneous beliefs were held by Pilkington; this fact played a significant role in the reasoning for his dismissal.

Take away: This case highlights the need for employers to exercise caution when managing situations involving employees with disabilities. Such individuals are afforded additional protection from discrimination under the Equality Act 2010 and it is never a good idea to jump to conclusions or make decisions relating to dismissal without a thorough investigation involving proper medical evidence.

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The Immigration Rules do not adequately cater for families with disabled children who remain part of the family unit beyond 18 years old. It has long been a characteristic of the Immigration Rules, across multiple visa routes, that whilst a main applicant can also have their family members apply with them, this is limited to their dependent children aged under 18. This can present a barrier to migration for families with children with additional needs who require support beyond 18 years old and remain part of the family unit and dependent. The same can be said for families who support another relative who is disabled and forms part of their family unit.

The relevant published policy guidance “Dependent family members in work Routes” reinforces this restriction but notes that adult dependent relatives may apply “outside of the immigration rules” where exceptional, compelling and compassionate circumstances exist. In practice, this can be a very high bar to meet. Often it is analogous to claiming that a decision to refuse a visa reflects a disproportionate interference in a right to private and family life under Article 8 of the European Convention on Human Rights. Alternatively, cases are focused on compassionate or compelling circumstances that don’t necessarily mean that a right to private or family life is infringed.

The distinction is important since Article 8 is often invoked in immigration law (and remains the basis for an appeal to the First-tier Tribunal). Still, the protection of Article 8 rights doesn’t extend to the rights of those abroad. Put another way, a main applicant for a working visa for the UK who wants to argue that a disabled family member should also be permitted to apply as their dependent cannot generally rely on the disruption to their family life in terms of Article 8 if the visa is not granted.

These are difficult cases, yet it is not uncommon that close families include adults who have additional needs or care, children beyond 18 or other family members. Arguably, the Immigration Rules do not properly cater for these situations and an application outside the rules is a complex and challenging prospect.

Takeaway: The Immigration Rules do not adequately cater for families with disabled family members, though a successful application may be possible in limited circumstances with appropriate preparation and advice.

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McAllister v Revenue and Customs Commissioners [2022] EAT 87

Facts: Mr McAllister began working at HMRC in May 2011 and suffered from anxiety and depression. At the time he was dismissed, Mr McAllister had been off work for seven months and said he was unfit to work in any capacity. HMRC believed that his absences were impacting productivity and staff morale and that all reasonable adjustments had been considered.

As the dismissal was on grounds of capability, Mr McAllister was entitled to receive a payment under the Civil Service Compensation Scheme (CSCS), but this was reduced by 50% due to his conduct in failing to answer calls and providing relevant documentation on time as well as disruptive behaviour. On appeal his payment was increased to 80%.

Mr McAllister brought claims for discrimination arising from disability in relation to his dismissal and the reduction of his CSCS payment. The tribunal dismissed the claim for discrimination arising from disability, finding that his dismissal could be justified as a proportionate means of achieving a legitimate aim, namely ensuring satisfactory attendance and a transparent sickness management system. The tribunal did uphold his claim in relation to the decision to reduce the CSCS payment by 50% but found that the appeal decision to increase this to 80% was objectively justified.

Judgment: The EAT dismissed the appeal. It found that the tribunal had carried out the required balancing exercise having regard to the discriminatory impact of the dismissal on Mr McAllister. It had also considered whether HMRC’s aims could have been achieved via less discriminatory measures and found that these would not have been appropriate to achieve the employer’s legitimate aims. However, the EAT did find that the tribunal had erred in concluding that reducing the CSCS payment was discriminatory. In their view, it was not capable of amounting to unfavourable treatment as Mr McAllister would not have received the payment if he was dismissed for a reason not relating to his disability.

Take away: Employers can take some comfort from this case as the EAT deemed satisfactory levels of attendance and the impact of absence on colleagues as legitimate aims to consider when dismissing an employee for long-term disability related absence. However, it should be noted that the employer in this case had obtained medical reports, implemented reasonable adjustments and considered alternative employment; all of which are important to take into account before dismissing employees on grounds of capability for absence.

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