Disability Discrimination – Knowledge of disability

In Kelly -v- Royal Mail Group Ltd UKEAT/0262/18/RN,

The Claimant worked as a postman. He had a poor attendance record generally and had triggered the Respondent’s Attendance Policy on several occasions due to repeated episodes of planned and unplanned absences. In 2017, the Claimant had two further periods of absence relating to surgery to treat Carpal Tunnel Syndrome in each of his hands. These absences triggered the policy again, the second period of absence triggering the final AR3 stage of the policy, which entitled the Respondent to review the whole of the employee’s attendance record. The Respondent decided that it had lost confidence in the Claimant’s ability to maintain a satisfactory attendance record and decided to dismiss him. The Employment Tribunal (ET) held that, although the decision to dismiss was harsh, it fell within the band of reasonable responses and the dismissal was fair. An allegation that the dismissal amounted to discrimination arising from disability was also dismissed on the basis that the Respondent did not know and could not reasonably be expected to know that the Claimant had a disability. The Claimant appealed on the grounds that it was perverse to conclude that it was fair to dismiss the Claimant for two periods of absence for corrective surgery for which the Claimant was essentially blameless, and for the Respondent to rely upon earlier absences. It was also said that the Tribunal erred in accepting that the Respondent did not have constructive knowledge of disability in circumstances where it did little more than “rubber stamp” the conclusions of Occupational Health in this regard.

The EAT Held. Dismissing the appeal that the Tribunal’s conclusion as to the fairness of the dismissal could not be said to be perverse. The policy expressly permitted earlier absences to be taken into account. Conduct that is in line with policy is unlikely to be unfair. The periods of absence for corrective surgery were, in each case, extended by other factors, and it was not outside the band of reasonable responses to take these absences into account. The policy applied to all absences, irrespective of fault or blame, and the Respondent was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future.

As to disability discrimination, the Respondent had not simply rubber stamped the OH reports, but had, on the face of it, given independent consideration to the question of disability. Moreover, the OH reports themselves contained more than a bare assertion that the Claimant was not disabled. In these circumstances, there was no error in the Tribunal’s conclusion as to the absence of constructive knowledge of disability.

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Voluntary Overtime and Holiday Pay Calculation

In Flowers -v- East of England Ambulance Trust [2019] EWCA Civ 947 – the Court of Appeal held that voluntary overtime should be counted when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration.

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10 Must-Know Employment Law Facts

Employment Law covers many different aspects of employer responsibilities and employee rights, including contracts of employment, hours of work, Statutory Sick Pay and dismissal. Your employer should comply with employment law else they are at risk of employment tribunal claims. Let’s take a look at 20 key facts about employment law, that your employer should be abiding by:

  1. Your employer must register with HMRC (HM Revenue & Customs) before their first pay day when taking on their first employee. A payroll must be run and employees should be issues payslips outlining earning before and after deductions and include all detail of Tax and National Insurance. Payroll information must be reported to HMRC every time an employee is paid and they must pay any tax and National Insurance owing.
  2. An employer must ensure that all employees have the legal right to work in the UK and keep copies of all provided documents, before they start working.
  3. Within a two month period of starting work, employees are entitled to a written statement of employment terms, however if you are employed for less than one month you are not entitled to such.
  4. The terms of an employment contract can only be changed by an employer if they have reserved the right to do so or the employee has given agreement or consent. Any alterations to the contract must be agreed by both parties with written confirmation within one month of the change taking effect.
  5. A contract of employment exists once a potential employee has accepted an unconditional offer of employment, which is often before they have commenced employment
  6. A probationary period of three to six months is typical, with the period being long enough for an employer to reasonably judge whether an employee can do the job.
  7. Minimum wage applies to almost all employees, whether casual, part-time, full-time or agency workers. Workers aged 25 and over are entitled to the National Living Wage, which is £7.83 per hour. There are also four different hourly rates for National Minimum Wage, which are: £7.38 for workers aged 21 to 25, £5.90 an hour for 18 to 21-year-olds, £4.20 per hour for 16 and 17-year-olds, £3.70 for apprentices under 19 or older than 19 but in the first year of their apprenticeship.
  8. You are entitled to 5.6 weeks’ paid holiday per year as an employee (at least 28 days a year for a full time employee). Part-time employees are entitled to the same holiday, but on a pro rata basis. Holiday entitlement begins to accrue from the first day of employment and accrues even through periods of absence such as sick leave or maternity.
  9. SSP (statutory sick pay) is £92.05 per week but it isn’t uncommon for an employer to pay more than this amount. If an employer believes you are not genuinely ill or you do not comply with notification requirements, they are entitled to refuse to pay SSP.
  10. Employees must be ‘auto-enrolled’ into a workplace pension and an employer must also contribute unless an Employee specifically opts-out of the scheme.
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