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Articles Employment 1st Jun 2017

Employment Review: June 2017

This month we consider three EAT cases which touch upon a number of interesting employment law areas, including issues to consider when using tests or other assessment tools during the recruitment process, the ‘3-month gap’ rule determined in the Bear Scotland holiday pay case, and the extent to which workers are entitled to the National Living / Minimum Wage (NMW) during sleep-in shifts.

We also report on a new guidance document expected to be issued by the government on workplace dress codes this summer.

Use of psychometric tests during recruitment comes with a ‘health warning’

In the recent case of The Government Legal Service v Brookes an Employment Appeal Tribunal (EAT) decided that a job applicant with Asperger’s syndrome, Ms Brookes, suffered unlawful disability discrimination when, as part of its recruitment process, the applicant’s prospective employer (GLS) required her to take a multiple choice Situational Judgement Test (SJT).

Ms Brookes applied to join the GLS as a trainee solicitor having completed her law degree. As part of the application process, all applicants were required to sit the SJT, a multiple choice exam which GLS stated was required to properly measure a candidates decision making powers so that it could recruit the best candidates.

Ms Brookes contacted the GLS prior to the date of the SJT and, because of her Asperger’s syndrome, requested that an adjustment was made to the format of the SJT so that rather than providing her answers to multiple choice questions, she could provide short narrative written answers instead. The GLS turned down her request but offered to give her extra time to complete the test. Ms Brookes ultimately took the test in multiple choice format, but unfortunately did not pass the test.

In upholding her claims of indirect disability discrimination, discrimination because of something arising in consequence of her disability and a failure by the GLS to make reasonable adjustments, the EAT stated that ‘the requirement to sit a multiple choice test’ put Ms Brookes and others with Asperger’s syndrome, as a group, at a disadvantage and also that it would have been a reasonable adjustment to have permitted her to provide her answers in written format instead. In particular, it was considered that:

  • Whilst the GLS had a legitimate aim in requiring candidates to sit SJT’s (i.e. to assess the competency of candidates in making effective decisions), the means of achieving that aim was not proportionate as it was possible to achieve that aim using a different test format.
  • Only one of the small number of applicants with Asperger’s syndrome had passed the SJT.
  • The university that Ms Brookes had previously attended had made adjustments to her course and accepted that multiple choice questions should be replaced with questions requiring a short written answer.

The GLS was ordered to compensate Ms Brookes in the sum of £860, provide her with a written apology, and also to review its psychometric testing procedures for recruiting disabled candidates.

This is an interesting case, not in that it raises any new points of law, but because it highlights that it is not enough (when defending indirect discrimination / discrimination arising from disability claims) for a prospective employer to merely point to a legitimate reason for using certain recruitment tools, but to go further by showing that its chosen method of assessment is also ‘proportionate’. Therefore if, as part of the recruitment process, employers are alerted to particular disabilities / receive requests for reasonable adjustments, they should carefully consider their testing procedures. If employers cannot accommodate adjustments, they should be prepared to explain why it would not be reasonable to do so, and also why the competency being tested and the method of testing is appropriate and proportionate in the circumstances.

This case is also a rare example of a successful indirect discrimination claim, which is notoriously difficult to prove as it requires showing a ‘group’ disadvantage.

The Government Legal Service v Brookes UKEAT/0302/16

EAT confirms that a gap of more than 3 months between underpayments of holiday pay breaks the chain to claim in respect of earlier underpayments

We probably all know about the holiday pay ruling in the Bear Scotland case, a summary of which can be found here. One of the principles that came out of that judgment was that a gap of more than 3 months between underpayments of holiday pay breaks the chain to claim in respect of earlier underpayments (i.e. a series of deductions). Having considered the holiday pay issue, the case was remitted back to the Employment Tribunal (ET) to be decided on its facts. The ET found that, based on the interpretation of the legal principles set out in the previous judgment, some of the claims were time-barred and dismissed them. The Claimants appealed the decision to dismiss some of their claims, and argued that it was not a binding rule that a gap of more than 3 months between underpayments of holiday pay breaks the chain to claim in respect of earlier underpayments.

The EAT, dismissing the appeal, has laid any such arguments to rest and has confirmed that the interpretation of the legal principles concerning the ‘3-month gap’ formed part of the ‘ratio decidendi’ of the judgment (i.e. part of the essential elements of a judgment which create binding precedent) and was a ‘binding’ rule on first instance employment tribunals which the EAT found no reasons to depart from.

Commentary – it should be remembered that this ruling in relation to the interpretation of ‘a series of deductions’ applies in relation to any underpayment of wages, not just holiday pay – i.e. such as the NMW. So a 3-month gap will break the chain or ‘series of deductions’ unless there is a legal exception which applies (such as it ‘not being reasonably practicable’ to bring such a claim in time).

Sleep-in shifts – are workers entitled to the National Living / Minimum Wage (NMW) for the full duration of a sleep-in shift or only when they are awake?

A recent Employment Appeal Tribunal (EAT) decision will be of particular interest to care sector employers where the use of sleep-in shifts is fairly common.

Three cases were consolidated in this appeal to consider the question of whether the Claimants, who were effectively required to be ‘on call’ or otherwise available during the night, were entitled to the NMW for the whole of their shifts (i.e. considered to be working during the whole period by simply being present) or only when awake and carrying out relevant duties.

The EAT judge, Simler DBE, confirmed that a “multifactorial evaluation” needed to be applied by considering a number of factors, and listed a number of potentially relevant factors at paragraph 44 of the judgment:

  • the employer’s purpose in employing the worker – for example, if the need to have a sleep-in worker is a regulatory requirement, this may be more likely to indicate that a worker is working by simply being present;
  • the extent to which the worker’s activities are restricted by the requirement to be present and at the employer’s disposal – for example, if the worker might be disciplined if they do not remain present, this may be more likely to indicate that a worker is working by simply being present;
  • the degree of responsibility undertaken by the worker – for example, having a heavier personal responsibility may be more likely to indicate that a worker is working by simply being present;
  • the immediacy of the requirement to provide services if something untoward happens or an emergency arises – for example, if the worker is the decision-maker as to whether any action is required to be taken during the night (rather than being notified of the action being required), this may be more likely to indicate that a worker is working by simply being present.

On the facts of one of the cases on appeal (Royal Mencap Society v Tomlinson-Blake), the Claimant was providing care and support to vulnerable adults who required 24-hour support at their homes, by carrying out a sleep-in shift for which she received a flat rate of £22.35 together with one hour’s pay. She was obliged to remain at the house throughout the shift and to keep a listening ear out during the night in case her support was needed. She was expected to intervene as necessary to deal with incidents (although in practise the need to intervene was found to be “real but infrequent”).

It was found that the worker was entitled to the NMW for the whole duration of her shift, on the basis that:

  • there was a ‘continuing obligation’ on her throughout the night where she had sole responsibility for keeping a listening ear and using her professional judgement;
  • she was required to be there and to deal with such situations as might require her attention or intervention;
  • she had to be there not only for the proper performance of her duties but also to enable her employer to comply with its legal obligations to provide appropriate care;
  • she had responsibilities to undertake even though the frequency of activity was low and she was entitled to sleep;
  • the onus was ‘constantly upon her’ to use her professional judgement to decide if and when to intervene.

Commentary – the legal position in relation to the application of the NMW to sleep-in workers / those ‘on call’ is far from clear and, unfortunately, this uncertainty is here to stay following the EAT’s judgment, which has endorsed the current state of play in this area of law. Employers should consider and take into account the above-mentioned relevant factors identified by Judge Simler when determining NMW entitlements. Certainly a very interesting area of law, which also raises questions in respect of how on-call / sleep-in time should be treated for the purposes of holiday pay calculations and under the Working Time Regulations 1998 (to which different tests apply). Employers are well-advised to obtain specific legal advice in relation to these issues and how to deal with such issues within their business.

Focus Care Agency Ltd v Roberts UKEAT/0143/16; Frudd and another v The Partington Group Ltd UKEAT/0244/16; Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16

New guidance on workplace dress codes expected this summer

You may recall the story that generated a lot of media attention last year of the employee, Nicola Thorp, who was sent home by her agency without pay for refusing to wear high heels. Ms Thorp was employed by outsourcing company Portico and was working as a receptionist at PwC’s offices in London. On her first day she was told it was Portico’s dress code for women to wear two to four inch heels.

Ms Thorp subsequently started a petition, which was signed by over 150,000 people, calling for the government to ban the requirement for women to wear high heels at work. This was followed up with a report by the House of Commons Petitions Committee and the Women and Equalities Committee which also made a number of recommendations to prevent female workers’ health and wellbeing being damaged by a requirement to wear high heels.

The government has recently published its response to the Committees’ report. Whilst it has rejected the need for any legislative changes in this area (stating that the existing discrimination legislation is sufficient), it has emphasised its commitment to raising awareness of the issue and eradicating outdated attitudes and practices against women in the workplace, which will include issuing new guidance during summer 2017 on workplace dress codes. So watch this space!

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
Julian Middleton

Author: Julian Middleton

Partner & National Head of Employment

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