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The catchily named Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 requires businesses to provide all ‘workers’ with an itemised pay slip. Previously, only employees were entitled to receive itemised statements. Workers will now have the right to bring an employment tribunal claim if businesses do not comply, and this extension of the right will now mean many people in the gig economy will be entitled to an itemised pay slip.
The new law comes after a recommendation by the Low Pay Commission in 2016 and following the Taylor Review on Modern Working Practices. The change is aimed at ensuring that low paid workers can work out whether they have been paid correctly. The good news for businesses is that the new requirement is not scheduled to come in until April 2019. There is plenty of time to get the necessary systems in place. The change will not apply to wages paid for work done before this date.
An employer will not be liable for disability discrimination unless it knew about the employee’s disability (or should have known about it). But what if an employer disciplines someone for misconduct that they don’t know is connected to a disability?
Mr Grosset worked for City of York Council as a teacher. He had cystic fibrosis, which the Council accepted was a disability. After a change in management, his workload increased and he struggled to cope. He suffered stress which made his cystic fibrosis worse. During this time, he showed the 18-rated film ‘Halloween’ to a group of 15 year olds. He later said this was an error of judgement caused by the stress which was linked to his disability. The school disciplined and subsequently dismissed him. At the time of the dismissal, medical evidence did not link the decision to show the film to Mr Grosset’s disability. By the hearing, new medical evidence linked the misconduct to his disability.
The Employment Appeal Tribunal agreed that Mr Grosset had suffered discrimination arising from disability. The employer did not know that the misconduct was linked to disability at the time of dismissal. However, knowledge is not relevant in such claims. The tribunal relied on the evidence put forward at the hearing, not the information the employer had when it dismissed Mr Grosset. The school then tried to justify its actions. They said they had the legitimate aims of safeguarding the children and maintaining disciplinary standards. However, the EAT said they could not show that Mr Grosset’s dismissal was a proportionate way of doing it.
This case highlights the different ‘knowledge’ requirements in discrimination claims. Employers will often be taking a higher risk when disciplining someone with a disability, although often it will be unavoidable.
High sickness absence can place huge pressure on a business. How easy is it to take disciplinary action against a disabled employee for high sickness absence? The Employment Appeal Tribunal has looked at this issue recently in a case where the employee was absent for 60 days in a 12-month period.
Mrs O’Connor had a disability and high sickness absence over many years. Her employer had dealt with the absence sensitively. They had accommodated significantly more absence than their policy usually allowed. But, in 2016, they issued Mrs O’Connor with a written warning and stopped her company sick pay. She brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010. Less favourable treatment under this section can be objectively justified if the employer can show that what they did was a proportionate way of achieving a legitimate aim.
Mrs O’Connor won her discrimination case at tribunal. The employer appealed but the Employment Appeal Tribunal agreed with the tribunal. The employer had the legitimate aims of assuring adequate attendance levels across the workforce and improving Mrs O’Connor’s attendance. However, they relied on general assumptions about what a warning might achieve. They didn’t look at how it would affect Mrs O’Connor or improve her attendance. No one had spoken to Mrs O’Connor’s team manager about the impact of her absence. The employer failed to follow their own policy of referring an employee to occupational health before taking disciplinary action. The warning was not a proportionate way to achieve any of the employer’s legitimate aims.
This case is a reminder to employers of the difficulties in dealing with disability related absence. This case succeeded because the employer couldn’t justify how the warning would achieve their stated aims. If they had followed their own procedures, and put forward different justification arguments, the outcome may have been different.