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Employers have a duty to make reasonable adjustments to sickness absence policies

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Employers are under a duty to make reasonable adjustments to the way in which they apply their sickness absence policies.

Ms Griffiths was an administrative officer employed for the Department for Work and Pensions for 35 years. She had been on sick leave for 62 days suffering from post-viral fatigue and, once she returned to work, she was found to have fibromyalgia. This was a disability. The DWP’s sickness absence policy stipulated a “consideration point” of 8 days’ absence in any rolling 12 month period, after which a sanction may be imposed, ranging from a written warning to dismissal. On the basis of this policy, the DWP issued Ms Griffiths with a written warning.

Ms Griffiths brought a claim of disability discrimination by way of failure to make reasonable adjustments. She alleged that she was disadvantaged by the policy so, in order to redress the disadvantage, the DWP should have: (i) disregarded her 62 days’ absence on the grounds that it was an exceptional absence; and (ii) the consideration point should have been extended from 8 days to 20 days.

The Court of Appeal held that application of the sickness absence policy imposed a requirement to maintain a certain level of attendance at work in order to avoid the risk of a disciplinary sanction. This was a requirement which substantially disadvantaged Ms Griffiths as a disabled employee.

The next step was, however, to consider whether the employee’s proposed adjustments were reasonable. The Court of Appeal held that they were not. The proposal to disregard the 62 day period of absence was not reasonable because further lengthy periods of absence were likely to arise. The proposal to increase the consideration point was not reasonable because a relatively short extension would be unlikely to remove the disadvantage for disabled persons.

Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265

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Instruction not to speak native language at work was not discriminatory

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It is not discriminatory on grounds of race for an employer to ask its employees not to speak their native language at work in circumstances where there are legitimate security concerns.

Mrs Kelly was a Russian national employed by Covance Laboratories Ltd. Covance carried out animal testing and had previously had serious issues with animal rights activists, including activists who had posed as workers for the company in order to gather information. From early on in Mrs Kelly’s employment, Covance considered her behaviour unusual and had suspicions that she may be an activist; for example, she would frequently use her mobile phone at work and would have lengthy conversations in Russian in the staff toilets. As a result of the concerns, Mrs Kelly’s manager instructed her not to speak Russian whilst at work so that the English-speaking management team could understand her.

Mrs Kelly ultimately resigned and brought a claim against Covance alleging race discrimination on grounds of her nationality.

The Employment Appeal Tribunal found that the reason for the instruction not to speak Russian was not connected to Mrs Kelly’s Russian nationality; rather, it was because her conduct had given rise to a suspicion that she may be a security risk. This was reasonable in the circumstances, particularly given that other Russian-speaking employees had been given the same instruction.

Kelly v Covance Laboratories Ltd UKEAT/0186/15

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Grant of smaller than expected bonus was not breach of contract

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An employer was not in breach of contract for paying an employee a discretionary bonus of 1% of profits in circumstances where the employee claimed to have been told that 5% would be the minimum.

Mr Paturel was employed by Deutsche Bank to work on the money market derivatives desk of the global finance department. Mr Paturel claimed that, prior to him taking the job, he was led to believe that the bonus he would receive would be 5% of profits earned in ‘bad’ years and 10% in ‘good’ years. In 2008 and 2009 Mr Paturel received a bonus equal to 1% of the profits he had earned in the relevant years; he later learned that two of his colleagues received bonuses of 8% and 11% respectively.

Mr Paturel brought a claim against DB, stating that by paying him a 1% bonus, DB had breached his contract of employment. He argued that he had been promised 5% as a minimum and that, in any event, DB was contractually obliged to treat him in a way which was broadly consistent with his peers.

The High Court struck out Mr Paturel’s claim. Firstly, it held that it was reasonable for DB to offer higher bonuses to Mr Paturel’s colleagues due to the need to incentivise them to stay and not look elsewhere for a job. Secondly, the court found that it was not reasonable for Mr Paturel to expect to receive a minimum bonus of 5%; his letter of appointment made plain that its terms (which did not state the 5% minimum) superseded any previous promises, if any such promise were made.

The key to Mr Paturel’s failure was that his letter of appointment contained an “entire agreement clause”, removing from Mr Paturel the ability to rely on any statements made to him before the contract was finalised. Employers looking to recruit should ensure that their employment contracts contain such a clause to prevent employees from seeking to rely on informal indications about remuneration given at interview.

Paturel v DB Services (UK) Ltd [2015] EWHC 3659

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Negative reference can be discriminatory regardless of referee’s motive

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The EAT has found that it is not necessary to show a referee’s motive when bringing a disability discrimination claim following a negative reference, which is based partly on an individual’s frequent absences.

Ms Pnaiser was employed by Coventry City Council. She had a disability which resulted in some significant absences from work. In July 2013, she was offered a job with NHS England subject to satisfactory references. In responding to the reference request, Ms Pnaiser’s former manager, Ms Tennant, sent a written reference which had been agreed in a settlement agreement, but she invited the recruiting manager to discuss the reference further by telephone. During the conversation, Ms Tennant stated that Ms Pnaiser’s frequent absences had impacted her performance at work. As a result of this discussion, the offer of employment was withdrawn, and Ms Pnaiser brought a claim against NHS England and Coventry City Council alleging disability discrimination.

The EAT found that the correct approach is to consider whether mentioning Ms Pnaiser’s absences as part of a wider discussion about performance could be discriminatory regardless of Ms Tennant’s motives. The EAT found that there was sufficient evidence to show that the absences had been at least part of the reason for the negative reference, and it was for NHS England to show that the absences and performance assessment played no part in the withdrawal of the job offer.

This decision puts employers in a tricky situation in relation to references. Certainly if there has been an agreed reference it would be wiser not to volunteer further information. It also reminds employers who are recruiting that claims can arise as a consequence of acting on a reference which is potentially discriminatory.

Pnaiser v NHS England and Coventry City Council UKEAT/0137/12

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