Disability, agency worker, right to work

20 August 2018

This article was featured in the September 2018 issue of the magazine.

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases

DL Insurance Ltd v O’Connor – EAT June 2018

The employment appeal tribunal (EAT) were recently required to rule on a case which examined whether it was appropriate to discipline an employee for continued absence when this absence relates to their disability. 

Ms O’Connor, who had worked for the employer, DL Insurance (DLI), since 2004, suffered from ill health to the extent that she was considered to have a disability under the Equality Act 2010. She made the employer aware of her disability and requests for flexible working patterns were agreed to in 2009.  As well as making reasonable adjustments the employer also originally took a lenient approach to O’Connor’s attendance levels which continued to be sporadic throughout her employment. 

The employee would regularly exceed the acceptable levels of absence as laid down in the employer’s sickness policy, but despite this DLI continued to issue her with discretionary sick pay at the full rate during these absences. However, when during 2016 O’Connor had sixty days’ absence during a twelve-month period, the employer decided to issue her with a written warning a condition of which was that the previously allocated contractual sick pay would be suspended for a twelve-month period. The employee proceeded to bring a claim to the employment tribunal (ET) believing that this decision was representative of disability discrimination.  

Though the ET found that the employer’s disciplinary warning did amount to unfavourable treatment, as O’Connor was forced to attend work whilst unfit to do so on account of being unable to go without contractual sick pay, it invited DLI to justify how this treatment was a proportionate means of achieving a legitimate business aim. After hearing the employer’s explanation of how the warning was designed to improve attendance levels, the ET decided this was not a justifiable way to improve O’Connor’s attendance as her absences were due to a genuine medical condition that was out of her control.   

In their decision the ET also considered that the employer had failed to seek medical advice or obtain an occupational health report prior to taking disciplinary action. Most importantly, however, the ET ruled the employer had discriminated against the employee by treating her unfavourably, in this case by placing her on a disciplinary warning, because of something arising in consequence of her disability pursuant to section 15 of the Equality Act 2010.

The employer’s appeal asked the EAT to reconsider on the ground that the original ET had focused too much on process in their reasoning about justification. The EAT dismissed the employer’s arguments and held that the ET had been entitled to decide that they failed to justify that the written warning was a proportionate means of achieving a legitimate business aim. It was also added that although O’Connor’s absences met the threshold to warrant disciplinary action under DLI’s sickness and absence policy, they had failed to recognise that these absences were due to something arising in consequence of her disability rendering the disciplinary action unfair.

This case should remind employers to consider the causal link between an individual’s behaviour and their disability prior to taking disciplinary action, as disabled individuals are protected from mistreatment for something arising in relation to their disability under section 15. Additionally, those who wish to take action to address absences amongst staff who qualify as disabled must be able to justify that these actions are a proportionate means of achieving a legitimate aim and that alternatives have been considered as this will be heavily scrutinised by any tribunal.  


...consequence of her disability rendering the disciplinary action unfair


Kocur v Angard Staffing Solutions Ltd & Anor

Compliance with the Agency Workers Regulations 2010 (‘the Regulations’) must be considered on a term by term basis, the EAT has declared, highlighting that less favourable treatment in one area cannot be offset by more favourable treatment in another.

Kocur was placed by Angard Staffing Solutions to work for a company in January 2015. By October, Kocur had become dissatisfied with various aspects of his pay in relation to workers who were directly employed by the company. He claimed that the agency failed to comply with regulation 5(1) of the Regulations by providing him less annual leave and fully paid rest break allowances than direct company recruits.  

His claims were dismissed by the ET, who found that the differences in annual leave and rest breaks were compensated for by the employee’s higher rate of hourly pay. In forming their decision, the ET evaluated regulation 5(1) which states that an agency worker should be entitled to “the same basic working and employment conditions” as a direct recruit. Consulting the EU Temporary Workers Directive 2008, from which the Regulations were originally constructed, the ET concluded that rights afforded to agency workers were there to offer protection for being less well-remunerated overall. As such, any disparity in leave entitlement was compensated by enhancing the hourly rate of pay for agency workers. As the claimant was actually paid more per hour than direct recruits, if he wished to take an additional two days’ unpaid holiday, something that was offered by the agency, he would come out with the same annual wage and leave entitlements as a direct recruit. 

The employee appealed on three grounds: firstly, that his lower rate of annual leave should not be compensated by a higher rate of pay; secondly, that he should be entitled to the same number of weekly hours as direct recruits; and thirdly, that the difference in payment for his rest breaks could not also be compensated by a higher rate of pay. The EAT upheld the first and third grounds but dismissed the second. 

The EAT outlined that the ET was mistaken to dilute the effect of regulation 5(1), explaining that these conclusions could potentially render agency work to be less attractive given that higher rates of pay could be said to compensate for unstable and irregular work. As far as the EAT could establish, the allowance for additional, unpaid leave to be taken by the employee was not a transparent system, with no evidence to support that any agency employee had actually taken the leave offered. They concluded that the employee being paid more overall did not change the fact he was paid less for rest breaks and was not entitled to the same levels of annual leave as direct recruits. As a result, the agency was not providing ‘the same’ working conditions and thus was operating in breach of regulation 5(1). 

This decision reminds employers of the need to ensure payment practices provide agency workers the same pay and leave allowance awarded to direct recruits. It should be kept in mind that less favourable treatment in one area, such as lower leave allowance, cannot be compensated by more favourable treatment in another. 


...never a point in the period when the claimant was not able to legally work in the UK 


Mr F Afzal v East London Pizza Ltd t/a Domino’s Pizza

The claimant, Mr F Afzal, originally from Pakistan, was employed as a delivery driver in October 2009. During his time working for the company, he was well-regarded and was in training to become a branch manager. In June 2011, the claimant married a European national, granting him time-limited leave to work in the UK that was due to expire in August 2016. This meant that, in order to legally work in the UK, the claimant had to apply for permanent status between July and August. 

His manager was very familiar with the immigration process and wrote to the claimant on two separate occasions, advising him that he must provide proof of this application by no later than 11 August or face risk being dismissed as part of company policy. The manager did not receive any proof from the claimant by the deadline and therefore sent a letter of dismissal to his home address, which was received on 15 August. The claimant was not given the opportunity to appeal this decision. 

The claimant had actually sent his application by this point and had emailed his employer’s human resources representative on 12 August with the relevant documents attached. However, the representative was not able to open the attachments at the time. Although the claimant’s manager later learned that the appropriate information had been provided and therefore offered to reengage the claimant as a new starter, the claimant rejected this offer and brought a claim of unfair dismissal. 

The ET dismissed his claim. In reaching their decision, the ET outlined that the employer had reasonable cause to believe that the claimant was no longer legally able to work in the UK. They reasoned that the employers were correct to try and avoid the sanctions that would have been placed upon them under the provisions of the Immigration, Asylum and Nationality Act 2006. The employer had no reason to believe that the claimant had not been disqualified from employment by reason of immigration status and as such an appeal would not have been necessary. Whatever the outcome, the claimant would still not be able to legally work for the employers. 

The claimant appeal was upheld by the EAT who submitted the case back to the ET for further review. They outlined that the ET had erred in finding there were no grounds for appeal against the dismissal and that therefore, under the provisions of the Employment Rights Act 1996, the employers had acted unreasonably. The EAT reasoned that if the employee had been allowed to appeal he could have provided the requested evidence and therefore prove his immigration status. In reality, there was never a point in the period when the claimant was not able to legally work in the UK.

This decision reminds employers of the importance of allowing the option to appeal a dismissal. Amongst other things, it creates an opportunity for employees to provide evidence that had not been previously available, which would render the decision too harsh or inappropriate.