[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all” global_colors_info=”{}”][et_pb_row _builder_version=”4.16″ min_height=”66.4px” custom_padding=”50px||||false|false” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”4.16″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.16″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.16″ _dynamic_attributes=”content” _module_preset=”default” text_text_color=”#FFFFFF” global_colors_info=”{}”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”4.16″ global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”4.16″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.19.1″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” global_colors_info=”{}” sticky_enabled=”0″]

In the recent case of Hilaire v Luton Borough Council, the EAT held that a competitive interview process could disadvantage someone suffering from depression, meaning the duty to make reasonable adjustments would be triggered.  However, it was also held that it will not necessarily be reasonable to dispense with the interview process altogether.

What happened in this case?

The Claimant suffered from depression and arthritis which caused him to suffer from lethargy, lack of motivation, problems with memory and concentration, persistent low mood, social disengagement and difficulty with normal social interaction.  The employer was aware of the Claimant’s disability.

A redundancy situation arose, and the Claimant was invited to apply for a role within the new structure.  The employer gave the Claimant extra time to prepare his application and offered him support in doing so.  As part of the process, the Claimant was required to attend an interview.  He said he could not attend the interview on the basis that he was unwell.  The employer asked when he would be able to attend, and he did not reply.

The employer wished to resolve the recruitment process.  It had already interviewed 13 candidates who were awaiting a response.  The employer considered whether there was any other way of testing suitability other than an interview but decided there was not as it would mean treating candidates inconsistently.  Therefore, it set a deadline for the Claimant’s interview to take place. 

Three days before the new interview deadline, the Claimant said he would not attend as he was unwell.  However, it is worth nothing that a few days later he was well enough to attend an internal appeal hearing regarding a warning he had received.  He also wrote to the employer a few days later stating that even if he had not been unwell, he would not have attended the interview as he had lost confidence in his employer.

The Claimant was dismissed by reason of redundancy.  He brought a claim alleging that the employer had failed to make a reasonable adjustment to the recruitment process.   He argued that the requirement to attend an interview caused him a substantial disadvantage as a disabled person suffering with depression.  In his view, postponing the interview was not sufficient to remove the disadvantage.  Instead, the employer should have dispensed with the interview altogether and slotted him into the role.

The Employment Tribunal dismissed claim, finding that that the Claimant could have engaged in the interview process, but had chosen not to do so.   This meant that the Claimant was not disadvantaged by his disability in the interview process.   The Claimant appealed.

What was decided?

The EAT held that a competitive interview process (in terms of both attendance and performance) could clearly cause substantial disadvantage to a disabled person suffering with the problems that the Claimant had, thereby triggering the need to make reasonable adjustments.

However, in this case, the EAT agreed with the Tribunal that the Claimant’s disability had not, in fact, caused him to suffer a disadvantage.  The Claimant’s non-attendance at the interview was nothing to do with his disability.  Rather, he did not attend out of personal choice (because he had lost confidence in his employer).  The fact that he had been able to attend the disciplinary appeal meeting at around the same time underlined this point.   

Although the claim failed on causation grounds, for completeness, the EAT went on to consider the issue of the reasonableness of adjustments.  In the EAT’s view, the only adjustment that could have alleviated the potential disadvantage in this case, was to have slotted the Claimant into the role without an interview.  However, the EAT concluded that this would not have been reasonable as it would have disadvantaged other candidates.  The EAT noted that “making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage”.  It may be a reasonable adjustment in certain circumstances, but not where 13 other candidates were vying for the role and had already been through a competitive interview.  In fact, in this case, there were no reasonable adjustments that could have been made.

What are the learning points for employers?

Although the Claimant lost, the important takeaway for employers is that it was found that a competitive interview process could substantially disadvantage a person with depression.  Equally, this could be the case for people with other disabilities which would affect the ability to attend and/or perform well in an interview, for example, chronic fatigue syndrome, Long Covid or severe menopausal symptoms.

Where a worker is disadvantaged in this way, the duty to make reasonable adjustments will be triggered and employers must be proactive in considering what adjustments might help.  There are a range of possible adjustments that might be suitable depending on the case, for example, conducting a shorter interview and/or conducting the interview remotely. 

In some cases, slotting into the role without an interview might be a reasonable adjustment, but this will not necessarily be the case.  The wider impact of a proposed adjustment will be relevant to whether or not it is reasonable.

Hilaire v Luton Borough Council

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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In Garrod v Riverstone Management Ltd the EAT has held that a settlement offer made to an employee after she had complained about discrimination, but before she had started legal proceedings, was genuinely without prejudice and not unambiguously improper.  As a result, the employee was unable to refer to the settlement offer in her legal claim. 

What happened in this case?

Ms Garrod was employed by Riverstone Management Ltd as its Company Secretary.  She returned from maternity leave on 15 July 2019 and three months later, on 17 October 2019, she told her manager that she was pregnant with her second child.  On 30 October 2019 she raised a grievance complaining of mistreatment, pregnancy and maternity discrimination and of bullying and harassment by her manager for almost five years.

A week later she was invited to attend a meeting with, Mr Sherrard, an HR and employment law adviser, for a “preliminary discussion”.  Riverstone offered to pay £500 plus VAT towards the cost of a legal adviser to attend the meeting if Ms Garrod wished.  This was declined.  In the end, Ms Garrod attended the meeting with her husband.  Both Ms Garrod and her husband had degrees in law.  Ms Garrod had undertaken some further training to become a solicitor and her husband had a PhD in law.

The meeting took place on 8 November 2019.  After a general discussion about her grievance, Mr Sherrard said he would like to have a “without prejudice” discussion.  It was later found that Ms Garrod understood what this term meant, even though it was not explained to her.  Mr Garrod went on to describe the employment relationship as “fractured” and “problematic” and said the company wished to make an offer to terminate her employment and he put forward the figure of £80,000.  Ms Garrod felt ambushed by this part of the meeting and began to cry.

No agreement was reached.  Instead, the grievance hearing went ahead on 3 December 2019.  On 16 January 2020, the grievance was rejected in its entirety.  Her grievance appeal was also rejected and on 16 March 2020, Ms Garrod resigned and later alleged that she had been constructively unfairly dismissed.  In her claim before the Employment Tribunal, Ms Garrod made reference to the without prejudice meeting with Mr Sherrard.  Riverstone applied to the Tribunal to have those references removed on the basis that this was a privileged meeting.

The Employment Tribunal Judge agreed that the “without prejudice” rule had been engaged because there was an existing dispute between the parties and the communications made at the meeting were part of a genuine attempt to settle that dispute.  Even though litigation had not started by this point, the Judge agreed that the parties had (or might reasonably have) contemplated that litigation would follow if there was no settlement.  Finally, the Judge did not accept that the rule should be disapplied on the basis of any “unambiguous impropriety”.  Therefore, the Judge allowed the application and ordered that the references to the meeting should be removed from Ms Garrod’s claim.  Ms Garrod appealed.

What was decided?

Ms Garrod argued that the Employment Tribunal Judge had been wrong to find that there was an existing dispute between the parties which engaged the without prejudice rule.  She relied on the earlier decision in BNP Paribas v Mezzoterro, where it was held that the fact an employee has raised a grievance did not necessarily mean that that the parties were in “dispute”. 

The EAT rejected this ground of appeal.  Firstly, the Mezzoterro decision did not mean that an employee who had raised a grievance could never be in dispute with their employer, rather, it was not necessarily the case.  In this case, the Tribunal Judge was entitled to conclude that the dispute was already in existence at the time she raised her grievance and at the time of the meeting.  In Mezzoterro the without prejudice meeting was at the very heart of her claim i.e. her sex discrimination and victimisation claims were based on the allegation that her employer sought to terminate her employment after she had raised a grievance about discriminatory treatment.   By contrast, Ms Garrod did not rely on the without prejudice meeting as an unlawful act giving rise to a separate claim.  Instead, the reference to the meeting was “part of the narrative making that the point that Ms Garrod’s grievance was not dealt with to her satisfaction”. 

Ms Garrod also argued, that even if the parties were in dispute, it did not necessarily mean that litigation was in prospect.  The EAT also rejected this, noting that the references made in the grievance to the infringement of legal rights and Acas Early Conciliation were “clear signposts to the possibility of litigation”.  That Ms Garrod had had legal training was a relevant factor as it meant it was reasonable to conclude that she meant what she said. 

The EAT also held that the Employment Tribunal Judge was entitled to conclude that the proposal made at the meeting was genuinely aimed at settlement of the dispute, noting that there was nothing unusual about an employment dispute being settled by an agreement to terminate the employment on financial terms.  This was the case even though Ms Garrod had wanted to remain in her job.

Finally, Ms Garrod argued that Employment Tribunal Judge was wrong not to have found that there was unambiguous impropriety.  She argued that responding to the grievance by proposing termination was an act of victimisation (although, ultimately, she was not permitted to amend her claim to argue this).  The EAT rejected this ground of appeal, noting that the without prejudice rule should be disapplied only in the very clearest of cases of very serious wrongdoing.  The Tribunal Judge was right to conclude that this was not such a case.  The EAT concluded that making a settlement offer which could, on one view, provide a clue to a party’s discriminatory attitudes fell far below the threshold needed to disapply the without prejudice rule.

What are the learning points for employers?

This is a useful decision for employers as it highlights that parties may be in a dispute once a grievance has been brought, meaning that a without prejudice discussion may be possible.  After the Mezzoterro decision, there was some concern that the raising of a grievance would not be sufficient to engage the without prejudice rule. 

However, employers should be careful not to assume that a grievance always means you are in dispute.  It will depend on the specific facts.  Here, the fact that the grievance outlined the legal claims and referred to Acas Early Conciliation all tended towards there being a dispute that would end up in litigation.  Further the fact that Ms Garrod was a sophisticated claimant with legal knowledge meant that it was fair to assume she meant what she said in her grievance.

The decision also highlights that, once engaged, the without prejudice rule will only be disapplied in limited circumstances.  An allegation that a settlement offer betrays an employer’s discriminatory attitudes is not enough.  However, it is worth remembering that Ms Garrod’s attempt to add a victimisation claim based on the settlement meeting itself was refused by the Employment Tribunal.  This meant that her references to the meeting were merely part of the general “narrative” of her claim and she was not harmed by having to remove references to it.  In a different case, a claimant’s claim may be rest more squarely on what happened at a settlement meeting (as was the case in Mezzoterro) and there would be a greater risk of the rule being disapplied. 

A helpful decision overall, but employers should still take care when seeking to have early settlement discussions before litigation is in clearly in prospect.  Although there is the ability to have “pre-termination settlement discussions” under section 111A of the Employment Rights Act 1996, such discussions are inadmissible in ordinary unfair dismissal claims only.  Therefore, it is better to ensure that the without prejudice label will stick wherever possible, since this will protect the communications from disclosure in any proceedings.  We would recommend seeking legal advice where you are unsure whether the rule will be engaged. 

Garrod v Riverstone Management Ltd

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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Last month, we reported on proposals to make a number of reforms to the flexible working regime by way of a Private Members’ Bill.  Since then, the Government has announced it will make the right to request flexible working a Day 1 employment right.

The Employment Relations (Flexible Working) Bill 2022-23 would:

• remove the requirement for employees to explain in their request what effect they think it will have on their employer;
• allow employees to make two flexible working requests per year rather than one;
• require employers to consult with the employee before refusing a request; and
• reduce the deadline for an employer’s decision on a flexible working request from three months to two months.

You can read more about the proposals in our briefing here.

Earlier this month, the Government’s long-awaited response to a consultation on flexible working reform was published.  In the response, the Government confirmed that it would support the Bill as it progresses through Parliament and also that it will legislate to make the right to request flexible working a Day 1 employment right.  Importantly, this is not a right to have a particular flexible working arrangement, only a right to ask for one. 

The Government’s response also confirms that the eight business grounds for refusing a flexible working request will not be changed.  Nor will employers be obliged to demonstrate in writing that they had considered alternative options before rejecting a request (however, they will be required to consult as above).

What does this mean for employers?

There are no immediate steps for employers to take.  The new Day 1 right will be introduced by way of secondary legislation and will not be included in the Private Members’ Bill.   No indication has been given as to when this will be introduced.

If and when the right to request becomes a Day 1 right, it would be sensible for employers to assume that questions about flexible working patterns will be raised more frequently in job interviews.  Therefore, it would be a good idea to give some preliminary thought to what, if any, flexible working arrangements would work for a particular role. 

Thought should also be given to whether to ask candidates proactively about preferred working patterns (on the basis that it is better to understand whether a request is likely to be made in future than to be taken by surprise).  Of course, care must be taken to ask this question, and respond to the answer given, in a non-discriminatory way.

Employers may want to take advice on any changes to their recruitment practices as a result of this change.

Consultation on Making Flexible Working the Default – Government Response

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City.  If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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