Gordons Legal Employment Update - 25 January 2019

Disability discrimination: ‘unfavourable’ treatment considered 

In Williams v Trustees of Swansea University Pension and Assurance Scheme and anor, the Supreme Court held that awarding an enhanced pension when an employee retired on medical grounds was not ‘unfavourable treatment’ where the pension is based on part-time hours and the employee was working those hours as a result of his disability.

Law

Section 15 Equality Act 2010 protects against ‘discrimination arising from disability’. This occurs where a person (A) treats another person (B) unfavourably because of something arising in consequence of B’s disability, unless A can show that the treatment was a proportionate means of achieving a legitimate aim. For the treatment to be ‘unfavourable’ B must have been put at a disadvantage.

Facts

W worked for the respondent for 13 years, latterly on part-time hours, until his deteriorating health forced him to apply (successfully) for ill-health retirement. He was a member of the respondent’s defined benefit pension scheme during his employment.

Under the ill health retirement rules of his pension scheme, W received his accrued benefits and also further benefits calculated as if he had continued to work up until the normal retirement age, a period of some 29 years. Such enhanced benefits were paid immediately and without actuarial reduction.

W argued that his benefits should have calculated by reference to the full-time hours that he would have been working had his disability not curtailed his ability to work. He claimed that assessing the figure according to the part-time hours he actually worked amounted to unlawful disability discrimination on the basis he had been treated unfavourably.

Decision and comment

The Supreme Court agreed with the Court of Appeal, and EAT before it, that whether or not something was ‘unfavourable’ was a matter of ordinary statutory interpretation. It is notable that section 15 refers to treatment as being ‘unfavourable’, rather than ‘less favourable’, implying no need for a comparator. It should not make a significant difference whether one approaches the question from a subjective or objective perspective.

Where beneficial treatment (granting an enhanced pension) could have been more beneficial (granting an enhanced pension based on full time hours) it is necessary to consider whether the allegation relates to unfavourable treatment, or merely less preferential treatment. In the present case, there was nothing inherently unfavourable about granting W an enhanced pension.

Government Good Work Plan

In December, the Government published its response to Matthew Taylor’s Review of Modern Working Practices. The GWP accepts the majority of the recommendations made by the Taylor Review, and there are various ‘headlines’ from it:

• From April 2020, a statement of written particulars will be provided to all employees, and now also workers, on or before day one. These will also include additional mandatory content, such as details of pay for all periods of absence;
• Pre-April 2020, employees will be able to request such a statement and the employer must comply within 1 month;
• The reference period over which a week’s pay is calculated for holiday pay purposes will be extended from 12 weeks to 52 weeks;
• The ‘Swedish Derogation’ whereby employers can avoid giving agency workers’ pay parity with their own workers in certain circumstances will be abolished;
• Agency workers will be provided with a ‘Key Facts Page’ with information about pay.

There are several other changes in the GWP which do not yet have draft or final legislation including:

• Clarity around the test of employment status. The detail of this fairly ambitious proposal has yet to emerge but the Government proposes to harmonise the test between the tribunal and tax jurisdictions to avoid misclassification.;
• The period required to break continuity of employment will be increased from one week to four weeks;
• Workers will be able to request a stable contract after six months of work;
• Banning employers from making deductions from staff tips.

No daze over snow days

As we find ourselves ensconced in that time of year when merely foreshadowing a fluttering of snow seems to bring the UK grinding to an infrastructural halt, we thought it prescient to review some considerations when adverse weather affects the workplace.

Should the employee that is absent from work due to poor weather be paid?

This will, quite naturally, be a key issue for both parties. Whether there is a right for the employee to be paid will likely depend on their contract, the company handbook, and any implied rights that could apply, for example one derived from custom and practice.  Workers who are ready able and willing to work will normally be entitled to their normal pay. ACAS Guidance notes, presumably relying on lack of ‘readiness’, that there is no automatic right to be paid where an employee is absent due to travel disruption or bad weather.

In spite of this, employers may wish to consider paying affected employees. Deducting pay could adversely affect staff morale and, particularly with larger employers, lead to negative publicity. The flip side is the possible disgruntlement from those weathered souls who have battled the elements to do their duty, only to discover their beslippered counterparts, still at home, are being paid to drink Bovril and watch Netflix.

The situation is likely to be different where the employer elects to close a place of work, as in such circumstances an employee is more likely to be entitled to pay.

What sort of alternative arrangements could be considered?

Employers have a duty to their employees and should not encourage them to travel in dangerous weather conditions.

We recommend being flexible and consistent. You may like to consider whether it would be appropriate to operate shorter opening hours, accommodating late arrivals and/or early leavers, allowing employees to work from home to keep the business running or use annual leave, or require the employee to make up any lost time at a later date. Whichever approach is taken, it is important that such flexibility is applied across the workforce equally.

Consider as well the impact on employees with a dependant. School closures could affect parents who are entitled to a reasonable amount of time off to make alternative care arrangements because of unexpected disruption to care arrangements. Employers cannot force these employees to use annual leave to cover this time. Such workers do not have a statutory right to be paid for such time off, but a contract, or company policy could state otherwise.

What steps can I take to ensure my business runs smoothly during bad weather?

Have a contingency plan for the effects of such situations including large scale absences, the absence of key personnel, or having to close the business altogether. Planning for the worst, and hoping for the best is always a good recipe for preparedness.

Ambiguity can be avoided with a clearly drafted policy that addresses the potential issues that could arise. Similarly, include terms in the contract that allow for deduction of wages if you want to be able to have snow days as unpaid absences. For assistance drafting these, please contact a member of our Employment Team.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.