CM October 2020

HR MATTERS
SEEING IS BELIEVING
Computer screens, criminal acts and furloughed workers.
AUTHOR – Gareth Edwards
HOW far does disability
discrimination apply when an
employee makes a claim? This
was answered in Robinson v
DWP which focused on alleged
discrimination arising from a
disability.
The claimant suffered migraines and blurred
vision which was recognised as a disability. She
required screen magnification software that
was incompatible with a computer system she
used. Various unsuccessful attempts were made
to improve the claimant’s working conditions.
Progress was slow, and in the absence of a solution
to the computer software issue, the claimant was
transferred to paper-based work in a different
department for over a year.
The claimant brought grievances relating to
the delay in implementing the adjustments. Her
grievances were upheld, and an apology was
issued. However, she appealed on the basis that
no compensation was offered for the stress and
difficulties she had experienced. She subsequently
issued proceedings in the Employment Tribunal
(ET) which upheld the claim of discrimination
arising from disability but dismissed the claim
for failure to make reasonable adjustments. The
ET’s decision was overturned by the EAT. The
claimant accepted the EAT’s findings over her
failure to make reasonable adjustments claim but
appealed to the Court of Appeal in respect of the
discrimination arising from disability claim.
The Court of Appeal rejected the appeal. It
confirmed that in order to succeed in a claim for
disability arising from disability, it is necessary for
the treatment complained of to be ‘because of’ the
disability, with the ‘conscious and/or unconscious
thought processes of the putative discriminators
is likely to be necessary’. It is insufficient to
show that ‘but for’ a disability, the disadvantage
complained of would not have arisen. The facts
suggested that the employer had attempted to
address her concerns but failed to adequately do
so.
Dealing with concerns raised by disabled
employees quickly and maintaining
communication when implementing adjustments
may help avoid staff feeling aggrieved enough to
litigate.
UNFAIR DISMISSAL: THE IMPORTANCE OF
PROCEDURAL FAIRNESS
A recent Employment Appeal Tribunal (EAT)
decision – Evans v London Borough of Brent
illustrates the importance of following a fair
procedure prior to dismissal, even where it is
clear the employee has committed a criminal act.
Mr Evans was employed as a deputy
headteacher at Copland Community School.
Following allegations of financial impropriety,
disciplinary proceedings were commenced.
Prior to the disciplinary hearing, Evans was
provided with extensive paperwork relating to the
investigation. Evans requested an extension of time
to master the paperwork and to be accompanied
by his sister, who had previously accompanied
him to interviews but who was on holiday on the
scheduled hearing date. The request was denied,
and he was dismissed following the hearing.
Evans's unfair dismissal claim was stayed
pending the outcome of the criminal case against
him, which found he had received unlawful
overpayments amounting to some £250,000. His
Employment Tribunal claim was then struck out
on the basis that there was no prospect of Evans
recovering financial compensation due to his own
conduct.
Evans appealed, arguing he had a reasonable
prospect of success in respect of the alleged
procedural unfairness, and that this alone was
sufficient for the claim to proceed. The EAT
upheld the appeal despite there being no prospect
of monetary compensation. In its ruling, the
EAT acknowledged the importance for Evans of
a finding of unfair dismissal, which has a value
of its own separate to the issue of monetary
compensation.
Had the employer accepted a short delay in
order to achieve a fair process, it could have saved
the considerable expense of defending its position
at Tribunal.
FURLOUGHED WORKERS’ STATUTORY
REDUNDANCY AND NOTICE PAYMENTS
The Government has announced new protection
for furloughed workers who are made redundant
during furlough.
The new Employment Rights Act 1996
(Coronavirus, Calculation of a Week's Pay)
Regulations 2020 came into effect from 31 July.
Under the new regulations, all workers will be
entitled to statutory redundancy pay calculated
based on their unreduced salary. The statutory
cap on a week's pay will remain in force.
The regulations also apply to statutory notice
payments and basic awards for unfair dismissal
claims, which must also be based on normal
wages rather than the reduced, furlough, rate of
pay.
Where employers need to make redundancies
during furlough leave, the Coronavirus Job
Retention Scheme (CJRS) can continue to be used
to reclaim notice pay up to the cap. It cannot be
used to pay redundancy payments, which must be
financed by employers.
Gareth Edwards is a partner in the employment
team at VWV. gedwards@vwv.co.uk
Advancing the credit profession / www.cicm.com / October 2020 / PAGE 53