Employment Law Update

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Dear All,

Herewith our Employment Law Update. Many thanks to Richard Gvero Head of Employment Longmores Solicitors,
Tel: 01992 305210
Email: rxg@longmores-solicitors.co.uk

This month we cover

Psychometric Testing was Discriminatory

Employers’ Role in Suicide Prevention

Protected Disclosure Test is Objective


Psychometric Testing was Discriminatory
The Government Legal Service v Brookes

We open this employment law bulletin with a recruitment case with a cautious message. Psychometric testing has long been a way of assessing the aptitude of job applicants. But this tick-box test, marked by computers, doesn’t necessarily provide a level playing field.

Ms Brookes has Asperger’s Syndrome. She applied for a job as a trainee lawyer in the Government Legal Services (GLS). The first stage of the recruitment process was a multiple-choice test, known as a Situational Judgment Test (SJT). Ms Brookes asked if she could respond by giving short narrative written answers. (The tribunal went on to find that, as a person with Asperger’s, she lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios.) GLS refused.

Ms Brookes took the test but didn’t do well enough to move on to the next stage of the recruitment process.

The EAT upheld the tribunal’s decision that she had been indirectly discriminated against. The ‘provision, criterion or practice’ (PCP) that all applicants in the trainee recruitment scheme take and pass the online SJT put people such as Ms Brookes at a disadvantage compared to those who didn’t have Asperger’s. That discrimination could not be justified. While the PCP served a legitimate aim (to test fundamental competencies), the means of achieving that aim were not proportionate.

It was also found that GLS had failed in its duty to make reasonable adjustments. Ms Brookes had been treated unfavourably because of something arising in consequence of her disability.

The big message here is to build some flexibility into your recruitment process to deal with people who may be disadvantaged by your ‘standard’ procedure. Even if the medical evidence on this isn’t conclusive, the safest course would be to implement some other way of evaluating the applicants’ capabilities. That applies even if no other person with that disability has asked for the adjustment; different people may be affected in different ways.


Employers’ Role in Suicide Prevention

A new resource has been launched to help employers play their part in reducing incidences of suicide among workers in the UK.

The Suicide Prevention toolkit has been put together by Public Health England (PHE), The Samaritans and Business in the Community. It is aimed at encouraging working cultures in which good mental and physical health is promoted, and helping employers understand how best to support those in need.

This comes at a time of heightened awareness of mental health issues. According to figures from the Office for National Statistics, workers in certain industries may be more at risk than others. Here are some of the results of the analysis commissioned by PHE:

• Men working in the lowest-skilled occupations had a 44% higher risk of suicide than the male national average
• In skilled trades, the highest risk occupation for men was building finishing trades – plasterers, painters, decorators in particular
• The culture, media and sport industry posed a 20% higher than male average risk and a 69% higher than female average risk
• The risk of suicide among female health professionals was 24% higher than the female national average
• The risk for male and female carers was nearly twice the national average

The survey also revealed that the lowest risk of suicide was among the highest paid occupation group; those working as managers, directors and senior officials. But one of the points made in the report is that suicide risk may be less about the actual occupation and more about features of the job – which include pay and job security.

If you’re interested in reading the report in full, you’ll find it here.



Protected Disclosure Test is Objective
Beatt v Croydon Health Services NHS Trust

For a person to be protected by whistleblowing legislation they must have made a protected disclosure. A key part of this is conveying certain information that they believe is in the public interest (this replaces the old requirement that the disclosure be made ‘in good faith’). Dismissing someone because they made a protected disclosure is automatically unfair.

Dr Beatt was dismissed from his job as a consultant cardiologist. In the lead-up, he had made a series of disclosures relating to the safety and staffing of the department in which he worked. This was sparked by the suspension of a nurse, whom he held in high esteem, during the working day. He believed that her absence contributed to the death of a patient. The Trust concluded that Dr Beatt’s allegations were ‘entirely without merit…and gratuitous in nature’ and, all in all, he was guilty of gross misconduct.

Unfair dismissal, the tribunal said. The main reason for the dismissal was the protected disclosures, and it is automatically unfair to dismiss on that basis. One of the issues for the Court of Appeal concerned an employer’s thought process. If an employer didn’t believe that the disclosures were protected (because they were either made in bad faith or were not in the public interest), could it still face liability?

Yes, because whether or not a disclosure meets the statutory test to qualify as a protected disclosure is objective; it is what it is. If the disclosure ticks the whistleblowing boxes and is the reason for the dismissal, then it doesn’t matter that the employer didn’t think it was a protected disclosure.

The Court of Appeal upheld the unfair dismissal decision. It also made some interesting observations, including this one:

“…[I]t is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers sometimes are) to cloud its judgement about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest.”

If you’re a fan of the Peter Kay show, Car Share, you’ll have seen the perfect sickie in the making. John’s car share buddy, Kayleigh, calls into work. She feigns a stomach bug with great aplomb, while John looks on. It’s all part of her plan to lure John, who happens to be the assistant manager in the store where they both work, to the safari park for the day.

The chance of that precise scenario happening in real life may be slim, and even slimmer these days, since it appears that fewer workers are taking sickies. According to the Office for National Statistics, when records began in 1993 7.2 days were lost per worker. In 2016 that figure fell to 4.3 days.

It seems that more of us will soldier on, rather than sink under the duvet, when we feel unwell. The Aviva Working Lives Report 2017 has revealed that 69% of employees surveyed said that they’d gone into work when they should have been off sick. Forty-one per cent said that if they take time off sick, the work just piles up. Twenty-three per cent said that they had taken a day off sick when they weren’t unwell.

No employer wants workers pulling sickies. But do you really want people in work when they’re not up to it? It’s not just about the spread of germs (although the domino effect of workers being struck down is always unwelcome). Someone who’s not firing on all cylinders can be a liability. Perhaps above all, a worker who really is unwell should feel able to stay at home to recover.

There’s definitely a balance to be struck. But, contrary to what some employers may believe, a culture of ‘presenteeism’ isn’t all it’s cracked up to be.

Richard Gvero
Head of Employment
Tel: 01992 305210
Email: rxg@longmores-solicitors.co.uk

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