Disability, rest breaks, pre-termination agreement

12 February 2018

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

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

The Chief Constable of Norfolk v Coffey

Employees receive protection against discrimination when their employer treats them less favourably because they perceive they have a disability, even if they do not. The Employment Appeal Tribunal (EAT) has considered whether a refusal to recruit because a health condition may cause the candidate to become restricted in the future was perceived disability discrimination. 

The employee was initially employed as a police constable from 1993–97. In 2009, she joined the Wiltshire Constabulary as a staff member and later applied to become a police constable in 2011. A medical assessment was carried out which found the employee suffered from hearing loss with tinnitus. As per the medical standards, contained in the national recruitment standards, this was below the standard for hearing loss. The guidance, however, stated this standard was non-decisive and where hearing loss was borderline, or only in one ear, a practical test should be considered. The Wiltshire Constabulary followed this guidance and carried out a practical test. The employee passed the test and carried out front-line duty without any adverse effect from 2011. 

In 2013, the employee completed a transfer application to the Norfolk Constabulary which disclosed she had hearing loss but did not need any adjustments. The employee was informed she had been successful at interview but the transfer was subject to a fitness and health assessment. An assessment in December 2013 identified she had significant hearing loss which was below standard; however, it went on to recommend a practical test due to her current operational role. The Constabulary sought further advice from a medical adviser who also concluded the employee’s hearing loss was below standard and advised a practical test to be carried out.     __-The Acting Chief Inspector (ACI) declined the transfer application because she did not meet the required hearing standard and, if transferred, the risk of the employee’s ability to perform the role would become the responsibility of the Norfolk Constabulary. The employee made a claim for disability discrimination on the grounds of a perceived disability under section 13 of the Equality Act 2010.

When giving evidence at tribunal, the ACI’s witness statement explained she saw the employee as a ‘non-disabled permanently restricted officer’ and, due to the ongoing employment of permanently restricted officers, the risk of restraints on the force would be knowingly increased by recruiting an applicant who did not meet the medical standards. On the basis of this evidence, the tribunal determined the ACI perceived the employee had a condition which would lead to the force having to make future adjustments to the role; becoming a future liability. As the only reason for rejection of the transfer was because the employee did not meet the medical standards, there was direct discrimination on the grounds of a perceived future disability. 

On appeal, the EAT agreed that the Equality Act 2010 covers situations where an individual is treated less favourably because it is perceived they have an impairment which will become a disability in the future. 

In this case, the reason for rejecting the transfer application was because the ACI believed the hearing condition could progress to a stage where it would have a substantial adverse effect on the employee’s day-to-day activities and she would have to be placed on restricted duties. Therefore, the claim of direct discrimination on the grounds of a perceived disability succeeded. 

 

...it would have a substantial adverse effect on the employee’s day-to-day activities...

 

Crawford v Network Rail Infrastructure Ltd

The Working Time Regulations 1998 (‘the Regulations’) state adult workers are entitled to an uninterrupted minimum rest break of twenty minutes if their daily working time is more than six hours. Workers in railway transport roles who carry out activities concerning the continuity and regularity of train timetables are exempt from this entitlement, although they are entitled to an equivalent period of compensatory rest under the Regulations. The EAT has examined whether employers can satisfy a worker’s entitlement to a rest break by totalling shorter breaks taken throughout a shift. 

An employee worked as a relief cover signalman for signal boxes in the south east. The majority of these signal boxes were single-manned and the employee was required to continuously monitor trains during eight-hour shifts. In addition to monitoring duties, the employee was on-call throughout the shift to carry out any additional activities as required. There were times when the employee was not very busy which allowed him to take a number of short breaks away from his workstation; over an eight-hour shift these short breaks would total more than twenty minutes. During day shifts, however, the employee was unable to take a continuous twenty-minute break. 

Within the organisation’s internal policies, there was a document for signalling and crossing keeper employees concerning rest breaks. The document said employees would have opportunities for “naturally occurring breaks” at single-manned locations. It also stated that twenty-minute rest breaks could be made up of shorter breaks over a period of three to four hours with this including at least one longer break to allow workers to meet their personal needs and take refreshments. 

The employee brought an internal grievance regarding the employer’s failure to allow him to exercise his entitlement to a continuous twenty-minute rest break under the Regulations. The grievance was dismissed and a subsequent appeal was unsuccessful. The employee brought a tribunal claim for his entitlement to a rest break or compensatory rest under the Regulations. 

The tribunal dismissed the claim. They found the employee was exempt from the entitlement to a minimum rest break and the employer had met its obligation to provide compensatory rest by encouraging, and allowing, the employee to take rest breaks throughout his shifts. The employee appealed this decision. 

The EAT determined the employer’s policy of aggregating shorter breaks to total twenty minutes was inconsistent with the Regulations. Following previous decisions, the EAT explained that compensatory rest for on-call workers must be a break from work lasting a minimum of twenty minutes for this to be deemed an equivalent period. As the overall length of the break has to total a continuous period of twenty minutes to meet the worker’s rights under the Regulations, employers are unable to aggregate shorter breaks to meet their obligations. The EAT allowed the appeal. 

 

...effective date of termination is in dispute between the parties

 

Basra v BJSS Ltd

Under section 111A of the Employment Rights Act 1996, pre-termination negotiations between employers and employees which seek to agree terms to terminate employment are inadmissible in tribunal proceedings relating to complaints of unfair dismissal. 

The EAT has examined whether inadmissibility of pre-termination negotiations applies when the effective date of termination is in dispute between the parties. 

The employee began working as a technical architect for the business in September 2013. Throughout the early years of his employment he was highly regarded as an employee; however, complaints and comments from clients led to performance concerns in early 2016. A meeting was held with the employee in February 2016 where he suggested resigning. The employer told him he was under no pressure to resign from the company but they could discuss this step if he wished to do so. 

An invite letter to a disciplinary hearing to discuss the concerns was received by the employee on 1 March 2016. A second letter, marked ‘without prejudice subject to contract’, was also sent to the employee on the same date. This letter offered the employee three-months’ net salary as a financial settlement to leave the business on agreed terms, rather than commence the disciplinary process. The employee sent an email on 3 March 2016 which indicated his acceptance of the financial settlement subject to contract and stated “today will be the last day at bjss”. The employee did not attend work again but a settlement agreement was not signed because the employee attempted to negotiate a higher financial settlement. Letters were exchanged between the parties, including a letter sent on 15 March by the business which stated the employee had offered his resignation and his employment had ended immediately, by agreement, on 3 March. 

The employee later brought a claim for unfair and wrongful dismissal, arguing the dismissal date was the 15 March 2016. The employer contended that his employment had been terminated by mutual agreement on 3 March. 

The tribunal dismissed the employee’s claim, finding he had resigned and not been dismissed by his employer. When considering the admissibility of the employee’s email as evidence of the method of termination of employment, the tribunal judged section 111A did not apply to the email because this only applies to negotiations which occur before the termination of employment. In this case, all negotiations had concluded and ceased once the employee had accepted the offer, therefore, the inadmissibility provisions did not apply to the email. The employee appealed this decision. 

The EAT highlighted that, as protection under section 111A applies to evidence of pre-termination negotiations, the date on which the contract is terminated is important to determine whether the protection applies or not. Where there is a dispute about the termination date, as in this case, a tribunal will be unable to say whether evidence is admissible or inadmissible until the dispute has concluded. 

Therefore, the EAT explained that when the effective date of termination is disputed, a tribunal should examine all evidence relevant to the dispute, including any evidence regarding termination negotiations, as a preliminary issue. Once this has been resolved, and the effective date of termination has been determined, the tribunal will go on to consider the question of fairness and should exclude pre-termination negotiation evidence from this point.