Employment Law Focus: Unconscious bias

Unconscious bias is a growing legal issue for employers. It’s widely regarded as a barrier to equality, diversity and inclusion, and employment tribunals are looking more closely at motivation and bias in discrimination and harassment cases.

In this episode, we discuss: 

• How does unconscious bias present itself as a legal issue?
• Ways of reducing the risk, including training, recruitment models and corporate culture.
• What the employment tribunal looks for.
• Proving unconscious bias and a direct causal link.
• Discrimination and reasonable adjustments case law.

In our news section, we cover:

• A stark warning on reducing the risk of bias from facial recognition technology
• An example of when dismissal without process can be fair
• An interesting case of “false self-employment”

We also share our views on the government’s long-term “back to work” plan, including refusal to return to work, unfair dismissal, flexible working requests and indirect sex discrimination.

Further reading

• AI – ethical considerations and the privacy legal framework
• Seven top questions on returning staff to work during the pandemic

Send us your ideas for future episodes – email emplawpodcast@tlt.com or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment

Transcription 

Jonathan Rennie:

Hello and welcome to Employment Law Focus. 
I'm Jonathan Rennie, a partner in our Glasgow office, and I'm joined by Siobhan Fitzgerald, a partner in our Bristol office, and also by Sarah Maddock, a professional support lawyer who's also based in Bristol. 

In this episode we're going to be talking about unconscious bias. Now, we don't profess to be workplace psychologists, neuro-linguistic programmers or even mind readers, but this is a growing issue that affects all organisations and the legal implications are becoming much clearer. We wanted to share some thinking on how this can present itself as a legal issue or risk, and offer you some tips on tackling this tricky subject. 
Now you might have read some of the press coverage about the government's campaign to get people back to work. We will finish up this episode by taking a look behind the headlines, and what this really means for employers.

Jonathan Rennie:

Whilst the term unconscious bias has been in use since about 2006 (according to Forbes), it's still not very well understood and it still pervades society and the workplace. There have however been some high profile debates about it in the media. It's really come into the spotlight and it's definitely seen as a critical barrier to improving equality, diversity and inclusion. Indeed, perhaps if you listen back to our earlier episodes on philosophical beliefs and sex discrimination, you might recognise or even possibly catch yourself having a prejudgment on some of the issues we discussed.

Jonathan Rennie:

One definition of unconscious bias might be that “it is the learned behaviour around social stereotypes that are automatic and unintentional, and sometimes we are even unaware how they shape our decision-making as they are not consciously thought through.” That's the description from Daniel Kahneman in his book Thinking, Fast and Slow. In other words, we have fast and slow thinking, and it is sometimes our fast thinking that creates the challenges.

Sarah Maddock:

It's interesting, isn't it? If you go back to prehistoric times, unconscious bias was probably developed as a very useful skill to help us sort through billions of stimuli and make decisions at great speed because our life depended on it back then. But apparently we make a judgment on race within 100 milliseconds, and on gender within 500 milliseconds. That's really holding us back from addressing issues around equality and diversity. 

But do so we must because – whilst filtering those differences quickly might have helped to protect us at the caveman stage of cognitive development – we left those caves long ago and blindly adhering to our factory setting and prejudices has a whole range of negative implications: from narrowing the recruitment field for businesses, through to just generally creating injustice across the whole of society and in the workplace.

Jonathan Rennie:

Now there are some great specialist experts and resources out there, but it's also important to look at this from a legal point of view, which is our main aim today. There've been some quite thought-provoking programs like Netflix’s 100 Humans experiment, and Channel 4's The School That Tried to End Racism. We recommend keeping an open mind and exploring this topic further.

Siobhan Fitzgerald:

Both, let's do a quick exercise. It might help to close your eyes. Now listeners only if it's safe to do so. If you're listening to us in the car, definitely do not. But Sarah and Jonathan will join me, and you do too if you can. 

I want you to imagine that you're on a plane, and just settling into a long haul flight somewhere nice. Getting comfy, let's say we're going to Mauritius. Got a nice drink beside us, perhaps a little snack and just preparing for takeoff, waiting to hear the captain's warm welcome, words of wisdom on safety precautions. Really imagine that moment, and try and capture your thoughts about what happens next. 

Now I want you to imagine the captain's voice comes on the overhead speaker. 

What did you hear? Was it a man's voice or a woman's voice?

Sarah Maddock:

I heard a man's voice.

Jonathan Rennie:

Yeah I heard a man's voice also.

Sarah Maddock:

Actually the majority of people instinctively think of a man. I've used this in training sessions with mixed groups, and found that the answer is predominantly male. This is obviously exacerbated by a lack of diversity amongst airline pilots. But it's important for people to recognise and challenge their biases, whether they're conscious or unconscious, in order to move the dial on diversity – especially for those in decision-making roles. Otherwise, it can have an impact on things like who gets opportunities at work, who gets promoted, salaries and how colleagues treat each other.

Siobhan Fitzgerald:

Yes, it's really interesting. Studies actually also suggest that the more diverse the team is the better decisions that are made. Those diverse businesses actually perform better than those that aren't, especially when there's diversity at that senior level. 
Really there are plenty of reasons why bias is shooting up the corporate agenda. Now if the time hasn't come already, employers will soon need to decide that they're going to face up to unconscious bias in their organisation. This is especially because as we'll touch upon, employment tribunals are increasingly looking at this area in discrimination cases, particularly around that motivation of decision-makers. 

It is definitely fair to say that no one wants to believe that they might make a discriminatory decision, and then realise at tribunal that they'd prejudged the situation, or had an underlying bias for or against a particular person.

Jonathan Rennie:

We'll come back to unconscious bias in a moment. But first we wanted to flag a few recent developments in employment law that could have interesting consequences for HR and legal teams. 

Firstly, a case that is relevant to the topic we are discussing today, and that's the case brought in the Court of Appeal, no less, against South Wales Police, which concerned its use of facial recognition technology and its management of the risks surrounding bias. It's often said that technology is one way of eliminating biases, because machines are objective and cannot unfairly discriminate because they do not suffer from human flaws and unreliable subjectivity, right?

Siobhan Fitzgerald:

Well, Jonathan, we've all seen Terminator.

Jonathan Rennie:

Yeah, my favourite film. Well, listen, machines rely on programming and operation by humans. If that is not undertaken carefully, then the bias and prejudice of those people can obviously be transposed to the technology itself. This is exactly what happened in this case. The court said that while the solution itself was not biased, the force had not gone far enough to check that the technology was free from gender and racial bias. There was more for them to do using an auditable document trail to demonstrate that the bias risk was essentially low. 

In making its judgment, the Court of Appeal referred back to the Stephen Lawrence Inquiry, and noted that in its view, public concerns about the police and its relationship with the BAME community had still not diminished.

Jonathan Rennie:

The court essentially sounded a warning for other organisations considering using similar technology, when it said that it hoped that any police forces planning to use facial recognition in the future would wish to satisfy themselves that everything reasonable had been done in order to make sure that the software used did not have a racial or even a gender bias. 

Quite a complicated subject that one. We have an article on artificial intelligence and automated decision-making on our website, which we'll link to in the episode notes.

Sarah Maddock:

Moving away from unconscious bias for a moment. The next recent case I want to tell you about is an equally common problem dealing with the breakdown of working relationships between employees. Now, if you're listening to this and your role involves dealing with any sort of employee relations issues, you will have undoubtedly come across similar scenario to that encountered by a company called Abellio ScotRail, and a claim that was brought against it by one of its former senior managers, Linda Gallacher. 

In this case Ms. Gallacher's relationship with her line manager had seriously deteriorated. This happened unfortunately at a time when the company was going through some really difficult trading conditions, and was really reliant on the claimant having a good working relationship with her manager.

Sarah Maddock:

The employer did the right thing and consulted with HR, but unfortunately there were no other roles available within the business for Ms. Gallacher, and the company felt that its trust in her had just completely evaporated, and that their working relationship was just totally broken down. 
Ms. Gallacher was then dismissed at her appraisal meeting. There was no warning and no procedure and it just took place there and then. The question for the employment appeal tribunal to consider was whether the absence of any procedure whatsoever had made the dismissal unfair. 

You might be surprised to hear that the employment appeal tribunal said the dismissal was fair, and was within the band of reasonable responses.

Sarah Maddock:

Although all of us recording this podcast today and probably most people listening would say that following a fair dismissal procedure is one of the cornerstones of a fair dismissal, in these particular somewhat unusual circumstances, dismissing without a procedure was not only fair, but it was also found that following the procedure might even have made the situation worse. 

The learning point from this is that in some albeit rare circumstances, a dismissal might fall within the band of reasonable responses needed for a fair dismissal, even if there is no dismissal procedure – going somewhat against the sort of accepted understanding of things in the employment law world. 
However, there's a note of warning: if you do decide to go down that path, you can certainly expect a higher level of scrutiny from an employment tribunal.

Siobhan Fitzgerald:

That's an interesting case Sarah, because I think that quite a lot of our clients often have a situation where there's a real breakdown in relationships between employees, and it can actually be very difficult to know what to do. It might be worth looking a little bit more closely at that situation if you come across something like that in your own workplace.

Sarah Maddock:

In our final case update, we want to take a look at a recent employment tribunal decision on the employment status of a hairdresser. In this case, it was found that a hairdresser was an employee rather than a self-employed contractor. 

The salon where the claimant Meghan Gorman worked, said that Ms. Gorman was not entitled to notice, holiday and redundancy pay because she was not an employee. However, Ms. Gorman successfully argued that this was what she called “false self-employment”, as she had no autonomy or control over her work. She had to work fixed hours, and the salon took 67% of her takings. There was no sense in which Ms. Gorman was in business on her own account. 
Whilst this is obviously an important win for Ms. Gorman personally, it has wider ramifications for employers, particularly as we go into our own period where the economy is contracting and many employers are looking at making staff redundant.

Sarah Maddock:

Some employers might be tempted to re-categorise employees as self-employed contractors as a way of avoiding making redundancy payments, and other statutory payments such as notice and holiday pay. However, a word of warning is that tribunals will be alive to this practice. 
As we have known for some years now, employment tribunals will be very quick to look behind apparent contractual arrangements between parties, and will look under the bonnet so to speak of the true relationships between parties in order to get to the bottom of the employment status of the individual in question.

Siobhan Fitzgerald:

Yes Sarah. And actually on that theme, we should just briefly mention – because it will be a seismic decision when it comes out – that the Supreme Court has now heard the appeal in the employment status case against Uber. 

I'm sure you'll all remember that this is the appeal against the decision that Uber drivers are workers and not self-employed contractors. We're not expecting a decision until later this year, but there are some whisperings in the employment law world that the Supreme Court may actually set the cat amongst the pigeons here and overturn the Court of Appeal – and may possibly decide that Uber is just a taxi operating company just like any other, in the way they say that they operate. 

If you're not signed up already, you can sign up on our website for updates on this and other landmark cases, and follow the latest employment news via our specialist employment law Twitter feed @TLT_Employment.

Jonathan Rennie:

I think I first heard about unconscious bias about eight years ago. There's obviously been a real turning point in the last year I think, with the idea of unconscious bias permeating the national psyche more than I can remember. For example, the BAFTA judges were widely criticised this year after no non-white actors were nominated. And even no women were nominated in the best director category for the seventh year in a row. 

Unconscious bias was referenced in a lot of criticism and indeed an industry wide report, which blamed the outdated unconscious bias of the individuals within the movie industry. Also, we had Keir Starmer, leader of the UK's Labour Party, announcing that he and the whole party will undertake unconscious bias training after he was criticised for calling the Black Lives Matter movement simply a moment.

Siobhan Fitzgerald:

Yes Jonathan. And I think there's a real danger here though, that unconscious bias can become a convenient buzzword for employers to use to suggest that they're tackling the diversity issue, and that they simply tick the box by doing unconscious bias training. You know – “that's a quick win and therefore it's a solution to the problem”.

Sarah Maddock:

I think that's right Siobhan, and I think employers need to be really careful. Because unconscious bias training has in itself been criticised for not being accurate or effective. It is important and it can help of course, but any training on unconscious bias needs to be done in full recognition of its limitations. It is not a silver bullet.

Jonathan Rennie:

Unconscious bias training often involves something called the Implicit Association Test, or IAT, and it's something I've done myself. Often naysayers say that the same person can come up with different scores, and I suppose there is that potential always, and perhaps even that the training isn't proven to work. And even that unconscious bias can be made worse by the training, which seems a rather odd outcome. The IAT test is a Harvard University test that uses images to test people's response times and their preferences. 

Jonathan Rennie:

At a very basic level, the test will ask you to populate pictures into a good or a bad box, and then retest you with slight variances on the theme to try and have a control test. It can be very thought-provoking, I would say, and the basic premise of the Implied Association Test is that our preferences are towards people who broadly have the same identity or protected characteristics as ourselves. 
I've tried the test, and did notice my reaction times were slower in certain categories than others. I won't share with you the particular categories, but I definitely recommend trying the test to see how you get on.

Siobhan Fitzgerald:

Yes, and probably the HR professionals listening might want to try it themselves before they roll it out within their organisations. I've actually heard one suggestion that managers and companies should think about linking ED&I with people's objectives, so that they're much more embedded in day-to-day work and the way people carry out their roles, rather than just being able to demonstrate that an annual training session has been held. So actually holding people accountable against those ED&I objectives.

Sarah Maddock:

I think that's right Siobhan. And it really links in with the approach that is being taken by employment tribunals at the moment and then, by logical extension, the approach that employers should be mirroring. 
So “how can employers be sure that they're doing enough?” I think is probably the question that might be on the minds of people listening. We all know that if a discrimination claim is brought, for example, then the obvious defence that most employers immediately reach for is the “all reasonable steps” defence. In other words, the notion that the employer took all reasonable steps to prevent the discrimination from taking place. 
More often than not, this amounts to the employer showing that it has an equality and diversity policy, it undertakes staff training on maintaining dignity at work, it checks that employees are aware of the policies and implications, and that it's taking steps to deal effectively with complaints when they come up.

Sarah Maddock:

As always, following a shopping list of actions like the ones I've just mentioned won't be enough in itself to show that you've taken all reasonable steps to prevent the mistreatment from happening. For example, it's not enough to have a policy and leave it in a drawer gathering dust – it must be actively implemented. But what does that actually mean, and what would tribunals be looking out for? Well, they will take a two-stage approach. First off they will look at what steps the employer took. Then secondly, they'll go on to ask, "Were there any other reasonable steps the employer could have taken?"

Siobhan Fitzgerald:

Sarah that does make sense, but we can easily see why then it gets so complex. Because how does an all reasonable steps approach fit with actions that are actually unconscious, and so deeply ingrained that we're not even aware that they're actually happening?

Sarah Maddock:

Yes Siobhan I know, it's really complex, and unconscious bias is a very deep rooted problem. So again, of course there are benefits to doing unconscious bias training for example – but it undoubtedly takes a lot more than just a couple of hours in a classroom to really change the way that people think and behave, and to attempt to remove the influence of unconscious bias and what actually happens in an organisation. 

Jonathan Rennie:

I'm prepared to share an odd personal experience. I noticed when I moved to England when I was about the age of 22 that my accent changed, and in fact it softened a little bit. This was never my deliberate conscious choice, but when I used to come back up to Scotland, people would comment on it and make certain assumptions. I read up a little on this, and realised that that kind of unconscious influence in my environment is quite frequent. In keeping with what you've said Siobhan, it's quite deeply rooted. It shows you that sometimes we are influenced in ways that we don't actually fully understand at the time.

Siobhan Fitzgerald:

That's interesting Jonathan, and obviously there are quite a few different accents on this podcast. I'm holding up the Irish side and I'm sure there are quite a few more different accents amongst our listeners.

Jonathan Rennie:

Absolutely. Now at the start of the podcast I mentioned the Channel 4 documentary The School That Tried to End Racism, which I really do recommend if you get the chance to watch. That really hit home the very young age at which people start to become more aware of race and unconscious bias and when it starts to set in.

Siobhan Fitzgerald:

How old were the students then in this documentary?

Jonathan Rennie:

The ones undergoing the experiment were year seven, which I believe is aged around 11 or 12.

Siobhan Fitzgerald:

I suppose I guess there's the question of whether it's realistic, therefore to expect us to eliminate it entirely, given how young we actually are when it starts to develop.

Jonathan Rennie:

Yes, absolutely. Perhaps it's more about finding ways to counteract the impact it has, and we'll explain a model you can use in a minute. 
Whilst we're on it, the program also highlights how students tend to hang around with others who are the same race as them as they get older – that implied association point. Certainly if that's happening in a workplace context, then that could also be a barrier to equality initiatives and overall business performance, by essentially reducing the opportunities to create more diverse groups and diverse thinking.

Siobhan Fitzgerald:

It's not just about gender, race or accent either. It could be about other things, for example, height or age, lifestyle choices such as sexuality, etc. Going back to our airline pilot, you might have made some more presumptions about them beyond just their gender. Maybe their accent or what they look like. 
But getting back on track, the good news is that unconscious bias can be tackled and managed, which is great, not only because it might mean you win an employment tribunal claim, but also because of course it's the right thing to do. Because everyone deserves to work in an environment free from unfair stereotyping.

Sarah Maddock:

I think that's absolutely right Siobhan. The first step is to know you have biases, and then people need to be given tools to unlearn them or challenge them. 
How else can employers take these sorts of reasonable steps to counteract bias and discrimination? 
When it comes to addressing unconscious bias in the recruitment process, one model we advocate amongst our recruitment team here at TLT is something called the SPACE2 model, which stands for:

Slowing down, that's the S; 

Perspective taking, the P; 

A asking yourself; 

C cultural intelligence; 

E exemplars and expand. 

Unfortunately we don't have time to go through all of those in detail today, but the terms are fairly self-explanatory and you can find out more about them online. 
This sits alongside eliminating bias by design. By that we mean things like using blind CVs, which basically means removing any identifying information from CVs as they come in.

Jonathan Rennie:

If we think about recruitment and beyond that, in the workplace, then we can actively try and cultivate what's called active bystander skills in colleagues. This can be effective in taking action on unconscious bias. It essentially equips people with the tools to be able to challenge assumptions and negative comments when they hear them. 

It might sound slightly worthy, but that's the idea of being almost a Good Samaritan in the workplace and calling out that behaviour when you see it. This can be more positive for employees because unlike unconscious bias training, you're not putting bias at the front, but rather emphasising and upskilling individuals on how to address it when they actually see or hear it.

Sarah Maddock:

All of that is very true Jonathan. Linking back to what I said earlier about active implementation, this all has to be bolstered with a culture that encourages speaking up and discourages what we think of as ‘groupthink’.

Jonathan Rennie:

What does all this mean for HR teams and employment law? Well, usually the first step for HR professionals considering issues of discrimination and bias would be the Equality Act 2010, which is the main legal framework for bringing and defending discrimination and harassment claims in employment tribunals. Lots of you will be very familiar with that. 

Unconscious bias is not actually specifically referenced in the Act, but that doesn't mean that it is not covered. Discrimination based on unconscious bias is a subset or a species even of discrimination and harassment. Decisions that have resulted in an individual being treated as if they are in a suspect category because of a protected characteristic will be covered by the Act. 

If unconscious bias resulted in an individual being treated less favourably because of their protected characteristic, or if they are harassed for the same reason, this would definitely fall under the Equality Act.

Siobhan Fitzgerald:

Yes Jonathan, and as you've said harassment is covered because where that harassment has been caused by unconscious bias – so if an individual is made to feel that their dignity has been violated, or the conduct of the perpetrator has created an intimidating, hostile, degrading, humiliating or offensive environment for them, and our listeners will be familiar with that definition – and this is linked to one of the protected characteristics under the Equality Act, then this may well amount to unlawful discrimination.

Sarah Maddock:

Yes, and that's all great in theory, and everybody's fairly familiar with the chapter and verse on that, but of course in practice this does immediately lead to one of the many complexities arising from unconscious bias, which is this: if the person who has perpetuated the discrimination or the harassment did so because of their unknowing prejudices, how could this ever be proved? 

The Equality Act requires that there has to be a direct causal link between the actions of a discriminator or a harasser, and the mistreatment of the victim. But if the perpetrator doesn't know they're doing anything wrong, how can a claim be established?

Jonathan Rennie:

Absolutely. This is a pervasive problem with no easy answers. Although prejudice is very far from being eradicated from society, there are very few people in modern society who would happily or openly admit to being sexist or racist or homophobic. But looking at the lack of diversity in most workplaces, it's fairly obvious that unfair filters are being applied, albeit probably mostly unconsciously or through habit. 
In terms of how employment tribunals deal with this, it's a question of taking a more holistic approach. There will be no “smoking gun” evidence, but a tribunal can look at the surrounding circumstances and draw their conclusions based upon inferences, and on the balance of probabilities. An employment tribunal will look at both the conscious and unconscious mental processes that lead someone to take a particular course of action, and will consider if a protected characteristic played a significant part in how the claimant was treated.

Siobhan Fitzgerald:

Some of our listeners may be wondering how tribunals will apply this in real life. I've got a £1m case example from 2015. They're always interesting when they involve lots of money. This one was Mr Hastings v King's College Hospital NHS Foundation Trust. 
Mr Hastings was an IT manager, and he was accused of assault after a dispute with a contractor and a delivery van driver in the employer's car park. It was found that during the investigation into what had occurred, the claimant's allegations that he was subject to racist abuse during the incident were completely ignored despite providing CCTV evidence to prove this. The disciplinary process was also said to have consistently painted Hastings as the aggressor, based on preconceptions of him as a black male, whereas the white contractors were seen as the victims during the process. 

The tribunal went on to find that his evidence as a black man of Caribbean origin was treated with unwarranted distrust and disbelief. It also found that Mr Hastings was an honest witness, while in contrast, there were inconsistencies and flaws in the employer's evidence. The tribunal then went on to award him £1m in compensation. 

Just to give you one more case example, and this one goes back a bit further to the end of the last century…the House of Lords noted in a well-known case called Nagarajan v London Regional Transport that direct discrimination, and in that case it was race discrimination, does not have to be a conscious motivation by an employer. It's enough for the employment tribunal to consider why a person has been treated in a particular way. 

A tribunal must make certain inferences and deductions, because direct evidence is likely to be lacking. The motivation of the employer does not have to be conscious or malicious, it just has to be a significant factor in the decision-making.

Sarah Maddock:

Just picking up on that point Siobhan, and that brings us rather neatly to probably one of the most complex areas of employment law. That's the two stage shifting burden of proof in discrimination claims. This will often come into play in cases like this that involve less obvious forms of discrimination. 
How does the shifting burden of proof work? It's where an individual can show facts that in the absence of any other explanation, suggest that discrimination may have occurred. Then at that point, the burden of proof shifts onto the employer to show that discrimination did not take place. But an initial prima facie case of apparent discrimination does have to be made out initially. It's perhaps easier to understand this by way of an example.

Sarah Maddock:

Let's say an employee of Asian ethnicity applies for a promotion, and is passed over in favour of a white employee. That in itself would probably be unlikely to shift the burden of proof over to the employer to show a reason for the lack of promotion that was not linked to race. But if the Asian employee then asked to see the interview scores compared to another candidate's, and there are discrepancies, and the evidence is provided from other employees that white candidates were provided with more management encouragement for example, to apply for the promotion, then this may be enough to shift the burden of proof back over to the employer – even if nobody in the recruitment process would have attributed their thought process to race.

Siobhan Fitzgerald:

So now we understand how unconscious bias and the shift in burden of proof works. But let's take a look at a couple of interesting cases about the impact of unconscious bias on failure to make reasonable adjustments (our listeners will come across that regularly, I'm sure) and see how that plays out in some of the cases.

Sarah Maddock:

Thanks Siobhan. One of those cases was an employment tribunal, which was brought against Somerset County Council by a Ms Talbot. In this claim, the claimant relied upon ADHD amongst other disabilities, and brought claims of discrimination arising from disability and failures to make reasonable adjustments. 
Ms Talbot was employed as a teaching assistant at a school, and claimed that as a sufferer of ADHD, she was more likely to offend the school's requirements in their code of conduct policy for a "high level of politeness, and or a high standard of behaviour at work" and was therefore more likely to face disciplinary action, and was accordingly at a disadvantage. 

Ms Talbot provided a list of reasonable adjustments that she requested, which included disability awareness training for managers and co-workers. Also, modifying disciplinary or grievance procedures, and personalised training and support in relation to her disabilities.

Sarah Maddock:

However, Ms Talbot's claim for failure to make reasonable adjustments failed, as providing training to her colleagues on her disabilities did not remove the requirement for her to maintain a higher standard of behaviour. The employment tribunal found that there was no training that could be provided that would allow her to meet this requirement, and there was no real prospects of it reducing the likelihood of unfavourable treatment. That meant that it wasn't a reasonable adjustment in this case. 

Similarly, the disciplinary action that Ms Talbot complained about related to her deliberate failure to comply with a reasonable management instruction. Then, because this was completely unrelated to her disability, the proposed adjustment would not have avoided the need to impose a sanction.

Siobhan Fitzgerald:

Yes thanks Sarah. It's interesting the analysis that the tribunal does in these cases. In another one – so this was South Staffordshire and Shropshire Healthcare NHS Foundation Trust (that's quite a mouthful!), v Billingsley – the employee brought a claim of discrimination and failure to make reasonable adjustments. 
In this case, the employee's claim succeeded. She worked as a data input clerk, where her main role was to transfer manual records completed by health workers onto a computer. She was dyspraxic, which made her slower and more prone to errors. A report commissioned by the Trust recommended 50 hours of training to help her address her limitations at work. Now she actually only received 20 hours, and this session happened back in 2012, which did see an improvement to her work, but it deteriorated again when her tutor left. Then she was subsequently fired on capability grounds a couple of years later.

Siobhan Fitzgerald:

Initially the employment tribunal upheld her claim of direct discrimination under the Equality Act, and of unfair dismissal under the Employment Rights Act. It found that the employer had failed to make the reasonable adjustment of providing all the hours of the specialist tuition recommended, and then had treated her unfavourably by subjecting her to performance reviews before the adjustments had been made, and dismissing her before they had been fully implemented. You can sort of see the rationale there. 

The Trust appealed and they tried to argue that an adjustment would only be a reasonable one if it will actually work. But the employment appeal tribunal disagreed with that.

Siobhan Fitzgerald:

It isn't necessary for an employee to show that the adjustment they propose would be completely effective to avoid the disadvantage. It's sufficient to show that there's been a chance that it would do so. In this case, the training that had already been provided had been proved to be successful. It was actually reasonable here to assume that the remaining 30 hours would have also been effective or at least partly effective, and therefore it was a reasonable adjustment that should have been made.

Sarah Maddock:

As Jonathan mentioned back at the start of this episode, some people may have seen headlines like the one in the Telegraph at the end of August, which said things like "go back to work or risk losing your job”, and also comments from ministers saying that if you don't go back to work, then this could make employees vulnerable to being dismissed, arguing that it's psychologically easier to sack someone who's not in the office. 
As I'm sure that most people listening to this would be aware, nothing's changed in relation to the law on unfair dismissal generally, and employers who are asking people to come back to work will still have to have a reasonable reason for dismissing employees. They can't of course automatically use working from home as requested by them as a fair reason for dismissal.

Sarah Maddock:

Having said that though, of course it is still possible to refuse a request for a permanent change to home working. Perhaps that's going to be a bit more difficult now, when an employee who's making the request can demonstrably show that it has worked well for many, many months through the pandemic, and particularly if they can then also show that there's been no impact on performance or productivity. 
Another thing that employers are going to have to bear in mind if they're being faced with a slew of agile working applications, is of course always the potential for indirect sex discrimination claims if they refuse requests by female employees to work flexibly, in order to continue to accommodate childcare.

Sarah Maddock:

But then of course having said all of that, a request to return an employee to the office is likely to be seen as a reasonable management instruction, and any unreasonable refusal to comply with that could be seen as a disciplinary matter. Of course if you take that to its ultimate conclusion, it could possibly end up leading to a dismissal. 
It will be interesting to see how this plays out over the coming months, as schools return across the whole of the UK and the governance messaging starts to shift towards returning to a more conventional way of working.

Siobhan Fitzgerald:

Yes Sarah, I think that's completely right. There's just lots of competing considerations for employers here. Many of our listeners will be sitting in meetings having those conversations, and trying to work out what's the best thing for their business. 
Thank you very much for listening. We hope you find this episode useful – lots of really difficult and interesting areas to talk about – and we hope as well that you're enjoying the rest of our podcast series. 

We're always interested in hearing from you, so send us a message if there's anything you'd like us to cover, or if you have any feedback or listeners’ questions. You can email us at emplawpodcast@tlt.com. Or you can tweet us, and our handle is @TLT_Employment, and you can use the hashtag #TLTEmploymentpodcast. 

Please leave us a review if you're enjoying the podcast and you think others should give it a listen. Don't forget to subscribe on your podcast apps so that you know when we're back again. Until next time, goodbye.

Sarah Maddock:

Goodbye.

Jonathan Rennie:

The information in this podcast is for general guidance only, and represents our understanding of the relevant law and practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.

 

Get in touch

Click for more detail

Jonathan Rennie

Partner Glasgow

+44 (0)333 006 0757 Email me

Click for more detail