Introduction

April was a busy month for the employment team in part due to the many changes to employment law which came into force.  The team provided details of these changes at its annual Employment Law Update seminar on 23 April and James Peel, a partner who specialises in GDPR, gave a presentation on monitoring in the workplace. 

We hope you enjoy this month’s newsletter which includes an update on the future requirement for employers to take “reasonable steps” to prevent the harassment of employees, and cases relating to reasonable adjustments in respect of alternative employment, constructive unfair dismissal based on demotion and a compensation award of circa £470,000 following a successful discrimination claim.    

UPDATE: The Worker Protection (Amendment of Equality Act 2010) Act 2023 (‘the 2023 Act’)

This new piece of legislation, which is due to come into force from October of this year, will place a new duty on employers to take ‘reasonable steps’ to prevent the sexual harassment of employees. No specific examples of such steps have been outlined yet but the Equality and Human Rights Commission is believed to be working on a statutory code which will provide useful guidance on this in due course. 

Although the Equality Act 2010 already provides for the prohibition of sexual harassment in the workplace, the 2023 Act will seek to place a secondary, more proactive duty on employers alongside the protection afforded under the 2010 Act. 

The 2023 Act will also award Tribunals a new power enabling them to uplift a compensatory award for sexual harassment by up to 25% if an employer is held to have breached its duty under the 2023 Act. 

The original bill passed through parliament sought to impose a higher duty on employers, ensuring that their only defence would be to show that they took ‘all reasonable steps’ but this was eventually held to be too high a threshold to place on employers. 

What does this mean for employers? 

Although standalone claims cannot be brought under the 2023 Act, employers should take care when considering whether they are doing enough to protect their employees from sexual harassment as any sexual harassment claim that is upheld at Tribunal will then also give rise to a breach of this new duty.

As previously stated, no specific examples of ‘reasonable steps’ have been identified yet as to how employers might mitigate claims under the 2023 Act, however, examples of steps that could be taken could be; conducting a detailed review of the company policies and procedures, hosting regular training sessions for employees at all levels and making sure any complaints are taken seriously; ensuring the company is actively challenging any sexist or discriminatory behaviours in the workplace. 

It is thought that this new duty on employers will act as a preventative, ultimately reducing the number of incidents and promoting a healthier, happier workplace. 

If you have any questions about the implications of the 2023 Act on your business, please do not hesitate to contact our Employment team. 

Reasonable adjustments - offering a trial period in a different role

In the case of Rentokil Initial UK Ltd v Miller [2024] EAT 37, The claimant, Mr Miller, was employed by Rentokil as a pest control technician, which was a physically demanding role and involved working at height using ladders. In March 2017, he was diagnosed with multiple sclerosis. Rentokil made various modifications to his working arrangements and to his terms and conditions, with the aim of mitigating the effects of his disability. By the end of 2018, however, Rentokil had concluded that it was not viable for Mr Miller to continue in his role as a pest controller. He was suspended on full pay while his employer explored the possibility of moving him to a new role.  

In February 2019, Mr Miller applied for the role of service administrator. He undertook the required assessment relevant to all candidates applying for roles at Rentokil. Following an interview, the recruiting manager concluded that Mr Miller did not have the relevant skills or experience for the job, so his application was rejected. 

In March 2019, Mr Miller was dismissed on grounds of incapability. After an unsuccessful appeal against his dismissal, he brought claims in the employment tribunal for failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal.  Mr Miller’s claims were upheld by the Tribunal but Rentokil appealed which was dismissed by the EAT. 

EAT Decision

It agreed with the tribunal’s conclusion that a trial period can be a reasonable adjustment in itself; it is not conditional on meeting any threshold for being successful. If the employee is at almost certain risk of dismissal, it is open to the tribunal to consider whether the proposed trial period in another role had sufficient prospects of averting that dismissal, meaning that it is reasonable for the employer to take that step. In Mr Miller’s case, it was clear that the tribunal had concluded it would have had a real prospect of successfully avoiding his dismissal.   That is not to say that the employee will be successful in that trial but in this case the EAT found that had a trial been offered there would have been a real prospect of avoiding the disadvantage (50% chance the employee would have been offered the new role permanently). In Mr Miller's case, whilst he had not performed well in the written and numeracy tests as part of the application process, his technician role was senior to the administrative role, and involved an element of report writing and other transferable skills. Mr Miller might have performed better during the trial period than the application process suggested.

Takeaways

This case has highlighted the significant complexities faced by employers considering reasonable adjustments for employees. Whilst this decision does not necessarily mean that all disabled employees must be offered a trial period in an alternative role if they are no longer capable of carrying out their original job, employers should give due consideration to whether additional training and a trial period are an appropriate adjustment to make in the circumstances. They should not follow the same competitive recruitment process and apply the same standards that would be expected of new candidates, to an existing employee who is facing the prospect of dismissal. Employers should consider in particular:

• That disabled employees are entitled to be treated more favourably than other candidates when considering redeployment.
• Whether a trial period in a role should be offered as a separate reasonable adjustment.
• What the appropriate selection criteria for a role should be, considering the very specific purpose of the trial period in these cases.
• Whether there is an objective justification for not making the adjustment of offering a trial period, even if there appears to be an objective justification for not making a permanent redeployment.

Rollits’ employment team can advise on sickness absence from the employer or employee’s perspective, steps required to be taken to manage such sickness absence (whether long term or intermittent) including consideration of reasonable adjustments alongside medical reports from an appropriate medical professional or Occupational Health and how to conclude such a process in supporting an individual back to work or whether it is appropriate to terminate employment. 

Does the demotion of an employee as part of a restructure amount to unfair dismissal?

In an Employment Appeals Tribunal (EAT) decision (Jackson v University Hospitals of North Midlands NHS Trust [2023] EAT 102), the EAT considered a ‘Hogg dismissal’ – being the principle that an employee is entitled to resign and cite constructive unfair dismissal if their employer unilaterally imposes new terms of employment on them which are so radically different to their current terms that it effectively amounts to a dismissal.

In this case, as part of a restructure the Respondent proposed to reduce the number of band 6 roles within the NHS Trust. The current band 6 employees were invited to apply for the reduced number of roles and following the claimant’s unsuccessful application he was moved to a new band 5 role and issued a new contract of employment. The band 5 role came with reduced management responsibilities and a reduction in salary. The claimant refused to sign the new terms and asserted that he was instead entitled to be made redundant, as there was a reduction in the requirement for band 6 roles. 

The claimant subsequently resigned and brought a claim for constructive unfair dismissal. The claims initially failed in the Tribunal however the EAT upheld the claimant’s appeal and the claim has been remitted to a new tribunal for a complete rehearing. Notably, it was stated that the Tribunal had erred in its judgment when it had held that the demotion from a band 6 to band 5 role was not a breach of the claimant’s terms of employment.

Employers should tread extremely carefully when seeking to change employees’ terms of employment. Such a process will involve consultation with the relevant employees with a view to seeking agreement to such changes. We can provide assistance with proposals to change terms of employment, for example as part of a restructure, with a view to minimising risks to the employer. 

Claimant awarded circa £470,000 following successful discrimination and unfair dismissal claims

In the case of Borg-Neal v Lloyds Banking Group, the claimant worked as a manager. As part of its Race Action Plan, the claimant along with 700,000 other employees was invited to attend race education training.

During the training session, whilst the trainer was discussing intent v effect, the claimant asked how they should deal with a hypothetical situation – what if the claimant, a white male, heard someone from an ethnic minority use a word that could be considered offensive if used by another, not of that minority. The specific example they gave was the use of the ‘N’ word by the black community (the claimant later said that they were thinking of the words used in rap music). In the session, they used the full word. The claimant then apologised for using this word and did not say it again. Following the training session, such was the impact on the trainer that they felt they had to take a week off work.

Mr Borg-Neal was dismissed for using ‘the N-word’. The tribunal upheld his claims of unfair dismissal and disability discrimination on the grounds that his misuse of language was linked to his dyslexia, and dismissal was not in the range of reasonable responses. 

Judgement

The ET made it clear in its judgment that it considered the respondent to have been entirely reasonable in its view that “(1) the full N word is an appalling word which should always be avoided in a professional environment; and (2) even if no malice was intended and the full word was used not as a term of abuse and not as a descriptor of people, nevertheless, simply hearing it said is likely to be intensely painful and shocking for black people…”.

However, this alone did not render the decision to dismiss in this case fair, as the question whether the claimant should have been dismissed for using the full word was a different question to whether or not they should have used it. In the ETs opinion, the respondent likely had the concern that failure to dismiss could be seen as the respondent condoning the use of the word by an employee.

Acknowledging that in many circumstances the above could be grounds for dismissal, on the facts of this case, the ET held that the decision to dismiss the claimant was not within the band of reasonable responses. This was based on the fact that the subject matter of the training session at the time the comment was made was exploring intention v effect. The claimant, in the view of the ET, did not ask this question in order to get the opportunity to use the offensive word “under the guise of an innocent question”. It was asked to deepen their knowledge and clarify an area of confusion. Indeed, the dismissing officer in this case referred to it as a “good question”. As a result, the ET held that the decision to dismiss was unfair. The respondents aim of sending a message of “zero-tolerance policy on any racial discrimination or use of racist language” could have been met with a formal sanction under the disciplinary procedure rather than dismissal.

On a final note, the claimant explained that the question that caused the offense may not have been worded appropriately due to their dyslexia. This had the effect of causing them to keep reformulating questions and spurting things out before losing their train of thought. As a result, the claimant would concentrate more on their complex thoughts than actually formulating questions and on the surrounding social cues. The ET therefore upheld that, on the balance of probabilities, that the claimant’s dyslexia was a strong factor in their use of the full word rather than finding another way to phrase the question. The claimant was awarded compensation of £309,867.86 for future loss of earnings (including a 5% uplift for the Respondent’s failure to follow the Acas Code) - This amount was awarded on the tribunal’s estimate that it will take between one to two years for the claimant to return to work following poor mental health caused by his dismissal. At this point the claimant would be 61 and unlikely to secure a reasonably paid full-time position, which the tribunal took into consideration.  

The claimant was also awarded £15,000 for injury to feelings, in respect of the claimant’s shock, hurt, humiliation and damage to his self-esteem as well as the loss of a job he loved.

Personal Injury and aggravated damages were also awarded.

This is an employment tribunal case, therefore it is not binding authority  and is only indicative of how a similar case might be treated. The Respondent has appealed the decision.

Takeaways

• This case is a reminder for employers of the importance of making decisions based on the facts and the context of the case at hand, rather than considering an act or omission  in isolation to what was happening at the time. 
• Training on diversity, inclusion, equality and equity, is a vitally important tool for employers in meeting their obligations to create a discrimination free workplace. During those sessions, there is a possibility that strongly held beliefs are challenged, and individuals question the use of certain words of phrases in order to understand what they should or should not be saying. There may therefore be times where an incident similar to this case arises but taking a zero-tolerance stance does not always mean having to dismiss.
• When employers are running equality sessions or other training sessions,  it is also good practice to set parameters and expectations at the start of the session so that all those attending are clear on the boundaries of acceptable conduct within the context of the training.

The Employment Team  can  provide training for managers in businesses on such topics as equal opportunities and anti-harassment and bullying as well as other aspects of their roles e.g. disciplinary and grievance training.

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