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Greek government’s imposition of height restrictions on its police force falls short of equal treatment

In the recent case of Ypourgos Ethnikis Pedias kai Thriskevmaton v. Kalliri, the European Court of Justice (ECJ) held that the requirement for candidates for the Greek police academy to be at least 170cm tall amounted to indirect sex discrimination which could not be objectively justified.
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Greek government’s imposition of height restrictions on its police force falls short of equal treatment

Multiple choice test = indirect disability discrimination

Multiple choice tests are commonplace in recruitment processes and are a relatively easy way for employers to whittle down numbers, especially where there are large numbers of applicants. However the case below highlights the potential dangers of such tests.

In Government Legal Service v. Brookes the claimant, who has Asperger’s Syndrome, applied to the Government Legal Service (GLS) for the position of trainee solicitor. The first stage in the recruitment process was to sit a situational judgement test (SJT), which asks a series of multiple choice questions and is aimed at testing candidates’ ability to make effective decisions. Candidates need to achieve a certain score to move on to the next stage. Asperger’s tends to result in difficulties in social interaction and non-verbal communication and can cause difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. As a result of this the applicant requested that she be able to provide short narrative answers to the questions in the SJT, rather than have to select from multiple choices. GLS refused this adjustment, stating that the multiple choice layout on a computer was the most cost-effective way of testing candidates and also removed human error from marking. Instead, GLS said that she could take the test without a time limit. The claimant took the test and narrowly missed the score which would have enabled her to proceed to the next stage. She subsequently brought claims of indirect disability discrimination and of failure to make reasonable adjustments.

The Employment Appeals Tribunal (EAT), upholding the Employment Tribunal’s (ET) decision, refused GLS’ appeal and held that the claimant had been subjected to indirect disability discrimination and discrimination because of something arising in consequence of her disability. It also found that GLS had failed to provide reasonable adjustments. The main points that the ET and the EAT made are as follows:

  • The provision, criterion or practice (PCP) of requiring all applicants to take and pass the SJT put people with Asperger’s at a particular disadvantage. It also put the claimant herself at a disadvantage.
  • There was no alternative explanation put forward by GLS as to why the claimant had failed the test.
  • There was a legitimate aim (testing competency of potential trainees); however, as there was a less discriminatory way of achieving the aim (i.e. letting the claimant provide short narrative answers as she had requested), the means of achieving that aim were not proportionate.

The claimant was awarded compensation (the relatively low amount of £860) and the ET recommended that GLS (1) apologise in writing and (2) review its recruitment procedures in relation to people with disabilities. This of course does not account for the impact of the reputational damage caused by the publicity surrounding this case.

This case is a good reminder that, if you are an employer that uses testing in your recruitment process, care needs to be taken to ensure that the method of testing does not disadvantage applicants with disabilities and that reasonable adjustments are considered and implemented wherever possible.

Multiple choice test = indirect disability discrimination

Regulatory references: the new rules of recruitment for the financial sector

In our article published in HR Zone, we consider the introduction of the new rules on regulatory references which come into force on 7 March 2017 and the practical steps that employers must take to comply with and implement the new regime.

Click here to read the full article.

Regulatory references: the new rules of recruitment for the financial sector

New requirement for public sector workers to speak fluent English

From 21 November 2016, public bodies are under a duty to ensure that staff in customer-facing roles can speak fluent English (or Welsh, in Wales). The government intends to use this development to ensure that the relevant members of staff have a command of spoken English which is sufficient to enable the effective performance of their role.

The new duty applies to existing staff and new recruits of bodies that carry out functions of a public nature. This includes (but is not limited to) the NHS, local governmental bodies, central government departments, state education and public corporations.

The responsibility for ensuring that the relevant individuals meet the required levels of fluency lies with the public authorities. Employers may decide to measure this formally (by setting a test) or informally (perhaps through conversation during the interview). The government has also published a code of practice to help employers meet the correct standard. The code suggests that the levels of fluency required by employers, will depend on various considerations, such as:

  • the frequency of any spoken communication with the public;
  • the topic and length of the spoken interaction;
  • whether the communication is likely to include technical, profession-specific or specialist vocabulary; and
  • how significant the spoken interaction is to deliver the service.

Employers should note that they must also operate a complaints procedure in line with this development. Members of the public will be able to use this procedure to complain about a staff member who they consider cannot speak English competently. Therefore, maintaining the necessary levels of fluency will help an employer to protect its reputation by limiting the number of complaints it receives from the public.

We encourage all public authorities to make existing staff aware of the new requirement and the consequences of a failure to meet the necessary levels of spoken English. Where appropriate, employers may also wish to amend employment contracts to make the relevant roles conditional upon the individual meeting the required standard of fluency. As a matter of best practice, employers should update recruitment processes so that job adverts clearly set out the standard of English required for a particular role and adhere to that standard when assessing a candidate’s suitability for it.

We recommend that where existing staff fail to meet the necessary threshold, employers should provide relevant training and monitor staff development. If an employer does not consider there has been sufficient improvement in the spoken English of any member of its customer-facing staff within a reasonable period of time, employers might try to identify alternative measures (for example, whether there is a suitable alternative position available for that member of staff or whether they can adjust that role so that they are not in a customer-facing position). However, employers should exercise caution against imposing any unilateral changes. Further, employers should only consider dismissal as a last resort, and we recommend that any employer exploring this option seeks legal advice first.

New requirement for public sector workers to speak fluent English

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

The government has produced a consultation paper, “Work, health and disability: improving lives”. The paper highlights the following striking statistics:

  • 1.8 million employees on average have a long-term sickness absence of four weeks or more in a year;
  •  ill health among working-age people costs the economy £100 billion;
  • sickness absence costs employers £9 billion a year;
  • there has been an increase of over 400,000 in the number of working-age disabled people in the UK since 2013, taking the total to more than 7 million;
  • 8 per cent of employers report they have recruited a person with a disability or long-term health condition over a year; and
  • less then half (48 per cent) of disabled people are in employment, compared to 80 per cent of the non-disabled population.

Over 3.3 million disabled people are now in work; however, many disabled people find employers reluctant to give them a chance. Disabled people also struggle with the interplay between work and the benefits system, which is not tailored to helping them stay in work. The government paper signals a desire for change (although this change may not happen overnight). The paper seeks employers’ views on areas including:

  • the key barriers preventing employers of all sizes and sectors recruiting and keeping the talent of disabled people and people with health conditions;
  • information that it would be reasonable for employers to be aware of to address the health needs of their employees;
  • reform of statutory sick pay to encourage a phased return to work;
  • how to ensure that all healthcare professionals recognise the value of work and consider work during consultations with working-age patients; and
  • the role of doctors in providing work and health information, making a judgement on fitness for work and providing sickness certification.

Views are sought from various respondents including both large and small employers, people with health conditions and disabled people, families, friends, teachers and carers. The consultation closes on 17 February 2017. Responses can be filed here.

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

The Fall of Big Sam

Last week, the Football Association (FA) dispensed with the services of its shortest-serving England manager after just 67 days in the role and following only one game in charge. Sam Allardyce (Allardyce) was removed from his position last Tuesday after reports revealed that he advised undercover reporters (posing as businessmen) on how to circumvent the FA’s third party ownership rules. The FA stated that this amounted to a “serious error of judgement” and “inappropriate conduct”, which undermined the integrity of the game.

Allardyce was previously investigated by the BBC’s Panorama for impropriety in 2006 in a programme called “Football’s Dirty Secrets”, when he was accused of accepting bribes from agents to sign players. Reports state the latest revelations are the result of a 10-month investigation by The Telegraph to uncover corruption in football. However, the actions that have led to Allardyce’s departure post-date his appointment to the role. Therefore, the due diligence the FA will have likely undertaken as part of the recruitment process will not have revealed these issues.

There are several measures employers can take during the recruitment process to try and protect themselves against appointing individuals who will bring the organisation into disrepute. For example, employers should:

  • Carry out thorough pre-employment checks to safeguard the organisation and certify the information they are relying on. Employers should be transparent and open with candidates about the process they intend to adopt.
  • Adopt a cautious approach to use of social media when researching candidates’ backgrounds. Employers should ensure that they limit their searches to only target information relevant to the decision whether to employ the individual. Employers should also remember that employment laws on discrimination apply to online and offline checks in equal measure.
  • Undertake due diligence to satisfy themselves that candidates will not discredit the organisation or cause difficulties with colleagues or clients following their appointment.
  • Seek references from previous employers. Where previous employers reference events that occurred several years ago, these might no longer be relevant to a candidate’s suitability. However, where employers are regulated, they may wish to set tougher conditions that must be met to qualify for the role, or include warranties in the contract of employment to cover the risks associated with the information revealed.
  • Consider where their information has come from before using it. Where information is already in the public domain, it may be legitimate for an employer to rely on this. However, employers should not rely on information based solely on rumour or suspicion.
  • Make provision for any specific rules and regulations that will affect the employee.

Where the candidate will be subject to certain regulations, employers may wish to include a clause in the employment contract that encompasses the duties under these regulations. For example, the contract could include a term that states “you will abide by all your duties including all regulatory duties”.

Where an employee’s misconduct only arises after their appointment (or only comes to light following the recruitment process), employers should be careful not to have a knee-jerk reaction and instead assess whether the behaviour in question justifies disciplinary action. Employers should carry out any disciplinary processes in accordance with their policies and procedures to ensure that they take a fair approach. It may be that the employee is simply given a written warning, but, in the most extreme cases, an employer may wish to terminate the employment contract.

If a fixed-term contract does not allow for early termination, an employer can only end the contract early without breaching it if the employee has committed a repudiatory breach of contract. It is reported that the FA has entered into a settlement agreement with Allardyce, though, due to the confidentiality of the agreement, it is not clear on what terms. Had the parties not entered into this mutual agreement, the FA may have been able to justify dismissal without notice on grounds of gross misconduct. To do so lawfully, it would have to show that Allardyce’s actions fundamentally undermined the trust and confidence between himself and the governing body, essentially amounting to a repudiatory breach of contract.

It is unclear at this stage whether The Telegraph’s investigations will thrust any other managers into the headlines: only time will tell. However, any manager who encourages or condones a breach of the FA’s regulations is likely to face severe questioning and, potentially, disciplinary action.

The Fall of Big Sam

Insight: UK Employment Law Round-up – September 2016

UK Employment Law Round-up In this issue, we look at whether a job applicant can gain protection under the Framework and Equal Treatment Directives if the purpose of the application is to gain the status of someone who can make a claim to gain compensation.

In our case law review, we will also re-visit what constitutes “normal remuneration” when calculating holiday pay and whether a reasonable adjustment for a disabled employee can extend to payment protection.

We provide guidance on how offers of employment should be made to ensure that communication about employment is not misinterpreted by prospective employees.

We also report on the most recent developments regarding the Apprenticeship Levy and the changes to the taxation of termination payments.

Read the full newsletter here.

Insight: UK Employment Law Round-up – September 2016

To tattoo or not to tattoo, that is the question

A recent survey reported on by ACAS (Advisory, Conciliation and Arbitration Service) revealed that young people believe their chance of success in an interview could be affected by their tattoos. This is despite recent figures that suggest one in three young people have them. This has led to ACAS reviewing its guidance on dress codes at work. The research suggests that employers could miss talented workers because of the negative associations and a traditional dislike of tattoos in the workplace.

The research also suggests that whether employers consider tattoos acceptable at work can depend on the industry. For example, customer-facing roles (such as the airline industry) may have a stricter approach to the appearance of their staff than others. On the other hand, some employers may consider tattoos to be an asset in attracting a younger audience (for example, bars or clubs).

Businesses are free to state that employees need to cover up tattoos. However, this may mean they are missing out on talented workers. ACAS stresses that employers who have an image policy to reflect “the ethos of their organisations” should ensure they have a written policy on appearance and communicate this to all staff so they understand what is expected.

Along with recent cases on high heels and religious symbols at work, the need to modernise and review dress code policies remains an on going concern for employers to consider.

To tattoo or not to tattoo, that is the question

Virgin Trains goes full steam ahead in employing ex-offenders

Sir Richard Branson is reaching out to the talent among ex-offenders and encouraging other businesses to look past individuals’ criminal convictions when recruiting for suitable roles. This comes after Mr Branson’s first push to employ ex-offenders in 2011 and as unemployment in the UK hits its lowest level since the financial crisis in 2007.

Mr Branson states that in the UK, re-offenders cost  taxpayers more than £13 billion per year. However, if ex-offenders can find work, the risk of re-offending is significantly reduced. To support other businesses with this initiative, Virgin Trains is launching a toolkit to offer practical advice on hiring ex-offenders.

Over the last three years, Virgin Trains has employed 30 ex-offenders, 25 of which still work for the company across various roles. To the knowledge of Virgin Trains, no ex-offender employee or candidate has re-offended and the company is looking to boost its numbers of ex-offender employees as much as possible over the coming years.

From a legal position, employers can seek information about employees’ criminal record history either through voluntary disclosure or, where the individual’s role requires it, by official criminal record checks through the Disclosure and Barring Service (DBS). If undertaken, these checks should be made once an applicant has been successful (and the offer of employment made conditional on a satisfactory check). The employer might also want to refresh these checks if an employee’s role changes. Checks should be periodically refreshed as a matter of course where their role involves working with a vulnerable group of people e.g. young children.

Mr Branson is proud to point out that the Virgin group does not conduct criminal records checks unless it’s legally obliged to do so (and therefore Virgin Trains may employ more than the 25 ex-offenders it has hired through its ex-offenders program). It is good practice for employers to consider whether a criminal records check is actually necessary for a given role before undertaking one in respect of an employee or a new recruit. Even if a check reveals that the individual concerned does have a criminal record, the employer should give consideration to whether the offence committed will actually impact on the ability of that person to perform the job that they are employed to do, or have been offered.

Virgin Trains goes full steam ahead in employing ex-offenders

Illegal working penalties for employers are more than a slap on the wrist

Further to our post last week on the Immigration Act 2016 (“Are You Ready For Tomorrow“), UK Visas and Immigration have published a report showing the total number of civil penalties given to employers in the second half of 2015 for illegally employing workers. The report shows that, between 1 July 2015 and 31 December 2015, 1,820 workers were working illegally. This resulted in the issue of 1,271 penalties to employers, totalling fines of £21.5 million.

Recent reports suggest the Home Office is now refining its focus and targeting large, corporate organisations for breaches of their immigration responsibilities in order to make the most of a potentially large pot of revenue. This serves as a stark reminder that, if caught out, employers could face a fine of up to £20,000 per illegal worker and two to five years in prison. Not to mention the potential damage to their reputation and the effect such a penalty may have on the status of an employer’s sponsor licence. The offences will apply irrespective of whether employers engage the individuals as employees, apprentices or under a contract to personally perform work or services.

It may seem obvious that employing workers illegally will result in severe ramifications. However, simple mistakes are becoming increasingly costly for employers. The Home Office is penalising many organisations for simple flaws in their immigration processes (for example, failing to hold the relevant paperwork or for holding incomplete paperwork).

The recent enforcement of certain provisions of the Immigration Act 2016 provides significant changes which are likely to give the UK Home Office greater ability to pursue civil, as well as criminal, proceedings against employers who engage illegal workers. Therefore, it is evermore important for employers to ensure they adopt compliant HR processes. In particular, we recommend that employers:

  • take complete copies of all relevant documents;
  • record the inspection date of these documents (but avoid backdating);
  • keep copies of these documents for the entirety of the employment and for two years post-termination;
  • regularly check the visa status of employees to ensure the validity has not expired or changed;
  • ensure that all areas of the business follow the immigration processes strictly; and
  • carry out a mock audit to identify where the risks lie.

By following these steps and taking action to resolve any issues, employers will be in a better position to avoid any penalties if and when they come under the spotlight.

Illegal working penalties for employers are more than a slap on the wrist