Gordons Legal Employment Update – 3 March 2017

Disability Discrimination

In the case of Peninsula Business Service Ltd v Baker, the EAT held that Mr Baker’s assertion that he was disabled was not sufficient to claim disability-related harassment. He actually had to have a disability.

By way of background, Mr Baker informed his employer that he suffered from dyslexia and was subsequently referred to occupation health.  The occupational health report recommended reasonable adjustments and stated that he “may” be disabled.  In the meantime, due to increasing concerns that Baker was not devoting his time to his work, Peninsula instructed an independent contractor to conduct covert surveillance.  After being informed about the surveillance, Baker argued that he had been harassed on grounds of his disability.

The ET considered whether that harassment was “related to disability”, rather than whether Baker was entitled to bring such a claim if he had not shown that he was a disabled person.  The ET found that “on the basis that the Claimant may well have been disabled”… “the trigger for the decision to engage in covert surveillance was the Claimant’s reliance on disability” and “this is a clear case of harassment related disability”.  The EAT held that the ET had misinterpreted section 109 of the Equality Act 2010.  The protection is not available to those who merely assert a disability, they have to satisfy the definition of a disability.

Comment: This case will not come as a surprise to many. A person is deemed to have a disability under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Dyslexia certainly is capable of falling within this definition but will not always.

Lock v British Gas

It seems that Mr Lock’s long-running holiday claim is almost at an end as the Supreme Court has refused permission to appeal to British Gas. This was an appeal against a ruling that results-based commission had to be included in holiday pay. The claim will now be remitted back to the employment tribunal to calculate the amount Mr Lock is owed.

Comment: Employers should include results-based commission in holiday pay. If you are in any doubt about how this should be calculated, please contact our employment team.

Employment Status

In order to assist both individuals and employers’ ACAS has updated its guidance on employment status.  A copy of the updated guidance can be found here.

Comment: The status of individuals continues to be a hot topic, whether they are classed as employees, workers or self-employed contractors. It is sensible for businesses to review the arrangements they have with their self-employed contractors to ensure that they are genuinely self-employed.

Public Sector Apprenticeship Targets Regulations 2017

A key priority for the government is to deliver three million apprenticeships by 2020.  In line with this priority, the Enterprise Act 2016 amended the Apprenticeship, Skills, Children and Learning Act 2009 to allow the Secretary of State to set apprenticeship targets applicable to prescribed public sector bodies in England.  The four-year target period for the number of apprentices which begin work for each group is equal to 2.3% of its headcount in England.  The headcount is to be determined on 31 March in each of 2017, 2018, 2019 and 2020.

The duty applies to public bodies that have more than 250 or more employees in England to achieve the minimum target of 2.3% apprenticeships to start each year (based on its headcount in England).

The regulations will provide for two distinct groups of public bodies:

• Group A, a group of bodies which comprise government departments and a small number of additional bodies.
• Group B, which comprises Transport for London and those of its subsidiaries which are public bodies.

The regulations will also provide more information on the reporting arrangements and how the target is to be calculated.

These changes comes into force on 31 March 2017.

Comment: We hugely support the drive to encourage all professions to offer an apprenticeship route.  In 2011, we were the first law firm in the legal sector to introduce such a scheme. The Gordons Apprentice Programme was created to provide an alternative route into the profession for bring youngsters without the need to attend university. Our programme has since become a multiple award-winner and led to the firm being described as “leading the way on social mobility in the legal profession” by Social Mobility and Child Poverty Commission chair, Alan Milburn.

We are currently celebrating our first graduate, Bryony Russell, who has qualified as a Chartered Legal Executive Lawyer and has worked within our employment team for many years.

Trade Union Act 2016

The Act came into force on Wednesday, which imposes stricter balloting requirements before a union can call official strike action.  A summary of the new provisions are as follows:

• Ballots: 50% turnout requirement – Section 2
• 40% support requirement for industrial action ballots in important public services – Section 3
• Information to the members, etc. about the result of the ballot – Section 6
• Information to Certification Officer about industrial action, etc. – Section 7
• Two weeks’ notice to be given to employers of industrial action – Section 8
• Opting in by union members to contribute to political funds – Section 11
• Restriction on deduction of union subscriptions from wages in public sector – Section 15