Employment Law Update – Disability Discrimination / Employment Rights
Disability Discrimination and Reasonable Adjustments
Doran v Department for Work and Pensions [UKEAT/0017/14]
Where an employer's provision, criterion or practice ('PCP') puts a disabled employee at a substantial disadvantage compared with non-disabled people, the employer must take such reasonable steps to avoid the disadvantage.
In the above case, the Employment Appeal Tribunal ('EAT') considered whether an employer had breached the duty to make reasonable adjustments in respect of an employee on long-term sick leave, who had not indicated that she would be able to return to work.
The claimant commenced work at DWP as an administrative officer, on a fixed term contract, in May 2009. The contract was subsequently extended to 4 November 2010. On 12 January 2010, the claimant was signed off sick, due to stress. She provided medical certificates and asked if part-time hours could be considered in the future. However, her medical certificates made no suggestion of a possible return if adjustments were made.
The claimant met with her line manager to discuss the situation. She indicated that her doctor had told her not be 'bullied' into returning to work before she was ready. Her line manager offered her administrative assistance duties and part-time hours for four weeks to support her return.
The claimant said she would speak to her doctor but did not respond to her line manager's offer. On 26 May 2010, the DWP gave the claimant notice of dismissal, explaining that it could no longer support her absence. The DWP had an attendance policy which stated that absences would not normally be supported if there was no indication of a return to work within six months.
The claimant brought various tribunal claims, including that the DWP had failed to make reasonable adjustments. She considered that the offer of a four week phased return was not reasonable.
The Employment Tribunal held that the DWP's attendance policy placed the claimant at a substantial disadvantage in comparison with non-disabled persons. However, despite this, the Tribunal rejected the claimant's claim. It held that the DWP's duty to make reasonable adjustments had not been triggered because the claimant had not informed it of a return date or given any other sign that she would be returning to work at a particular time.
The EAT agreed with the Employment Tribunal's decision. The Tribunal had been entitled to find that the duty to make reasonable adjustments was not triggered because the claimant had not become fit to work. Further, the EAT decided that it had been up to the claimant to raise the issues of a lower grade role with a phased return when she became fit to do some work.
Tips for Employers
The above case illustrates that, for an employer's duty to make adjustments to be triggered, there must be an indication that the employee might be fit to return to work at some point.
Employment Rights of Employees Working Abroad
Lodge v Dignity & Choice In Dying and another [UKEAT/0252/14]
The territorial scope provisions of the Employment Rights Act 1996 ('ERA 1996') were repealed in October 1999. This has led to increased uncertainty regarding overseas employees bringing unfair dismissal claims in the Employment Tribunal.
There have been a number of cases dealing with this point. In Ravat v Halliburton Manufacturing and Services Ltd  IRLR 315, Lord Hope stated that, where an employee's place of work is not Great Britain, the key question was whether the connection with Great Britain is sufficiently strong that Parliament would have regarded it as appropriate for a Tribunal to deal with the employee's claim.
In the case of Lodge, the EAT considered whether an Australian citizen, employed by a British company, who worked remotely in Australia for family reasons, was protected against unfair dismissal and/or whistleblowing detriment under the ERA 1996.
The claimant was Head of Finance for a British not-for-profit company. Her contract was governed by the laws of England and Wales. Several months after her appointment, she moved to Australia because her mother was unwell, and worked remotely from there until June 2013, when she resigned. She then brought constructive dismissal and whistleblowing claims in an English Employment Tribunal.
The first instance Employment Tribunal held that it did not have jurisdiction to hear the claimant's claims, as she was not truly an 'expatriate employee'. This was because she had not been 'posted' abroad by her employer, but had left the country of her own volition. The Judge held that 'Parliament cannot reasonably be taken to have intended that an employee who is an Australian citizen, who asked to be allowed to work in Australia and was so permitted, who relocated herself and her family to Australia, and who submitted herself to the Australian tax and pension regimes as opposed to the British ones, should nonetheless be able to bring a complaint of unfair dismissal or detriment in relation to whistleblowing before the tribunals in England and Wales'.
The claimant appealed to the EAT.
The EAT upheld the claimant's appeal and ruled that the Tribunal had jurisdiction to hear her claims.
The EAT accepted that the claimant did not fall squarely within the 'expatriate employee' definition. However, all of the work that she did in Australia was for the benefit of her employer's London operation. The fact that her employer permitted her to work remotely in Australia for family reasons did not, for ERA 1996 purposes, make her situation different from that of an employee posted to work abroad. She did not lose her right to bring her claims where, instead of working as a 'physical employee' in London, she did so as a 'virtual employee' in Australia.
Tips for Employers
With the progression in IT systems, it is now fairly common for employees working for British operations to work remotely from other countries. The EAT has made it clear that employees will not lose their right to bring claims under the ERA 1996 simply because they were not 'posted abroad' by their employer.
It seems that if an employee is working remotely, but for the benefit of business based in Britain, they will be protected by the ERA 1996. However, each case will be fact sensitive.