Employment Law Monday Update - 18 Aug
Anyone who works in HR will know how quickly changes come about in Employment Law, and how hard it is to keep up with them all. With that in mind, the Michelmores Employment Team has created a weekly newsletter that encapsulates the most significant Employment Law developments of the last 7 days. The Weekly Update will be sent out around midday on Monday, so be sure to keep an eye out for it!
Employer Failed to Make Adjustments to Redeploy Potentially Redundant Employee
London Borough of Southwark v Charles [UKEAT/0008/14]
Employers have a duty to make reasonable adjustments to help disabled job applicants and employees in certain circumstances. It is for an Employment Tribunal to determine, objectively, whether a particular adjustment would have been reasonable to make in the circumstances.
The Claimant was employed by London Borough of Southwark ('Southwark'). He was informed that his role was redundant and he commenced the process of applying for alternative jobs within Southwark. During this time, he was diagnosed with a sleep disorder, and was signed off sick for three months with resulting depression. Southwark was informed of the Claimant's disability and referred him to its occupational health provider, which advised that the Claimant was 'not fit to attend administrative meetings'.
However, despite the above, Southwark required the Claimant to attend interviews in order to decide whether he was suitable for the alternative jobs on offer. When the Claimant did not respond to these requests, Southwark confirmed that his employment would terminate 'in the absence of receiving an expression of interest from you regarding vacancies' and 'no indication as to whether you are able to attend interviews'.
The Claimant brought claims for unfair dismissal and disability discrimination, the latter of which was successful at Tribunal.
The Employment Appeal Tribunal ('EAT') dismissed Southwark's appeal, and held that Southwark's practice in requiring those in the redeployment pool to attend interview for potential redeployment posts was a practice which put the Claimant at a substantial disadvantage, because he could not attend interview to demonstrate that he was qualified for the jobs available. Southwark knew that the Claimant suffered from a significant disability in the form of an inability to attend administrative meetings, which the EAT deemed to include interviews for jobs.
Tips for Employers
This case demonstrates that a requirement to attend an interview has the potential to disadvantage a disabled employee. It also raises the question as to how an employer can make reasonable adjustments to remove that disadvantage. The EAT has made it clear that an employer does not need to automatically appoint the employee to the post. It will be for the employer to consider how it can assess the disabled employee alongside other candidates.
TUPE: Service Provision Changes
Horizon Security Services Limited v (1) Ndeze (2) The PCS Group
PCS, a security contractor, was engaged by Workspace Plc to provide security services on land owned by the London Borough of Waltham Forest ('the Borough'). The Borough subsequently reclaimed the site from the company and engaged a new security contractor (Horizon) to look after the site, for a limited period of 8 to 9 months, pending its demolition.
The question put to the EAT was whether this amounted to a Service Provision Change ('SPC') under Regulation 3(1)(b).
The EAT held that there was no SPC. A fundamental rule relating to SPCs is that the client for whom the services are provided must be the same. In the present case, the client had changed. The original security contractor, PCS, was working for Workspace Plc. However, PCS's replacement, Horizon, was working for the Borough, which was a different legal entity. Therefore, the SPC rules did not apply and the employees of PCS were not entitled to transfer to Horizon.
The EAT further stated that SPC TUPE transfers cannot occur where the client intends the contract to relate to an event or task of short term duration. The contract that had been given to Horizon was of limited duration, in order that the site was looked after pending its demolition. This was a second reason why there was no SPC in this case.
Tips for Employers
This case is a useful reminder for employers that there will be no SPC where the client, to whom services are being provided, has changed.
Injury to Feelings Award of £10,000 was Not Supported by Facts
The Cadogan Hotel Partners Ltd v Ozog [UKEAT/0001/14]
The Equality Act 2010 states that compensation for discrimination may include compensation for injured feelings. However, the legislation provides no guidance as to how a Tribunal should evaluate injured feelings.
The leading case of Vento v Chief Constable of West Yorkshire Police  EWCA Civ 1871 set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards.
The Claimant was employed by Cadogan Hotel Partners Ltd ('Cadogan'). She alleged that the new head waiter had touched her inappropriately by kissing her arms, asked her whether she had a boyfriend, and had approached her with his trousers undone, asking her "Do you want this body?"
At the Employment Tribunal, the Judge had made an award for injury to feelings which fell into the middle Vento band. However Cadogan felt that the Tribunal had made an excessive award which did not correlate with the effect that the acts had made to the Claimant's feelings. Cadogan appealed to the EAT.
The EAT found that the Employment Tribunal had incorrectly focused on its own view of the discriminatory conduct, rather than looking at the effect it had actually had on the Claimant, which had never gone beyond making her feel 'very uncomfortable'.
The EAT highlighted that awards for injury to feelings should be compensatory and should not be used to punish employers. Therefore, the EAT reduced the original award for injury to feelings that the Employment Tribunal had awarded.