Employment Quarterly Case Law Update - November 2023

In this article we highlight the most significant employment law cases since July 2023 and the lessons that employers should take from them.

Making reasonable adjustments during recruitment

The case of AECOM Ltd v Mallon is a useful reminder of the duty on employers to make reasonable adjustments for job applicants who are disabled under the Equality Act 2010. Mr Mallon, who has dyspraxia, wanted to apply for a role in the research and development team within AECOM’s Fiscal Incentives team. The application process involved candidates creating a personal profile and completing a short online application form. Mr Mallon emailed AECOM’s HR department attaching his CV and asked if he could make an oral application because of his disability. His CV detailed that he had dyspraxia and included information about how dyspraxia affects people generally. Mr Mallon received an email confirming that he needed to complete the online form but that he should let them know if he was struggling with any aspect of it. He responded repeating his request to do the form over the phone and to make his application orally, although he did not explain the difficulties he was having with the online process.  Mr Mallon subsequently brought a disability discrimination claim on the basis he said AECOM had failed to make reasonable adjustments.

It was held that AECOM had constructive knowledge of the substantial disadvantage to which Mr Mallon was subjected by having to complete the online form. Although he had not given specific reasons why he could not complete the online form, AECOM knew about his condition and ought to have known about the difficulty he was facing. There was no good reason why someone could not have telephoned him to discover what his particular difficulties were, particularly given he had not been able to provide them in email correspondence. It was open to the Tribunal to conclude that an employer acting reasonably, when faced with an individual with a dyspraxia diagnosis asking for an adjustment to avoid filling in an online form, but who failed to respond in writing to a reasonable question, would have picked up the phone to speak to that individual in order to understand their situation.

The case highlights the need for employers to proactively deal with issues that arise during recruitment exercises, including taking all reasonable steps to understand a disabled job applicant’s needs.

Positive discrimination during recruitment

Recruitment practices also came under the spotlight in terms of positive discrimination practices. Far from being just a hot topic, organisations of all sizes and across all industries have demonstrated a greater commitment and emphasis on creating a more diverse and inclusive workforce. However, with diversity and inclusion at the forefront of minds during recruitment drives, employers must take care not to breach the Equality Act 2010 by positively discriminating.

A recent inquiry by the Ministry of Defence has found that a Royal Air Force (RAF) recruitment drive which aimed to boost diversity discriminated against 31 white men who missed out on gaining cyber roles in the RAF. The report set out that over the course of 2020 and 2021, 161 candidates who were either women or from ethnic minority backgrounds were fast-tracked into training roles ahead of other candidates.  

Responsibility for the unlawful recruitment campaign lay with incorrect understanding and interpretation of legal advice received by the staff who led the initiative believing that they were “pushing boundaries of positive action rather than acting unlawfully”. 

The RAF has accepted that the drive amounted to positive discrimination and has issued an apology to all 31 men affected, as well as offering a financial award to the individuals who missed the opportunity to qualify for a £5,000 joining bonus.

This inquiry serves as a reminder to employers that recruitment processes should not discriminate against anyone, and that fast tracking or only hiring someone purely because of their protected characteristics is a form of positive discrimination and is unlawful.

Unfair dismissal and discrimination arising from disability

An interesting decision by the Employment Tribunal demonstrates to employers the importance of considering all the facts and taking a holistic approach when making a decision to dismiss. 

The claimant in this case was a long-standing employee with a clean disciplinary record who worked as a manager. Mr Borg-Neal was also dyslexic. When attending an online race awareness training session on the subject of “intent vs effect”, he asked a question to the trainer about how he should handle a situation where he heard someone use language that might be offensive if not used by someone within that ethnic minority. The example he used was about rap music and he added that "The most common example being the use of the 'N' word in the black community", using the full word instead of the censored version of the word. 

After the training session the trainer made a complaint to the employer about Mr Borg-Neal’s use of the offensive word and the employer began a disciplinary process which ultimately resulted in his dismissal for gross misconduct. Mr Borg-Neal subsequently brought claims for unfair dismissal, discrimination arising from disability and direct race discrimination.

The Employment Tribunal held that he was unfairly dismissed. Whilst the use of the ‘N’ word was not in any way condoned by the Tribunal, it found that the claimant had used the word in the context of asking a genuine question during the race awareness training and that he had not meant to offend. The Tribunal found that his employer did not have reasonable grounds to believe that Mr Borg-Neal’s actions were gross misconduct. Further they considered that on the balance of probabilities the claimant’s dyslexia was likely a strong factor causing him to express the question in this way he did during the training so the claim for discrimination arising from a disability was also upheld but the claim of direct race discrimination was rejected.

Whilst fact-specific, this case highlights that whilst performing a misconduct investigation employers should consider the full facts and not act hastily in jumping to a conclusion of gross misconduct when a lesser offence or sanction may be appropriate. 

Employers should also take from this the need to set clear parameters and expectations when running diversity, equity and inclusion (DE&I) training sessions to ensure that everyone attending is clear on the boundaries of acceptable conduct during the training. One such action might be to make it clear at the beginning of any training session that questions are to be welcomed but delegates should still consider the impact of their words and phrase any questions appropriately. 

The final point on this case is that it should be noted that it is a first instance decision and not therefore binding on other Tribunals. A different Tribunal could find from very similar facts that a dismissal was fair. 

Loss of the right to a statutory redundancy payment

Redundancy processes are stressful for all involved and it is not uncommon for things to change. The case of Love v M B Farm Produce Ltd is a reminder to employers to be flexible in their approach. 

Mrs Love worked at a farm shop which was to be closed and she was put at risk of redundancy. She was offered an alternative role at another farm shop on a trial period, but she turned this down as she was not a confident driver, and it would involve her driving to an unfamiliar place. Her employer offered to pay her reasonable mileage and fuel expenses and confirmed she would not be required to drive in the snow if it would be too risky. On this basis, they considered the role suitable and her refusal of it unreasonable and so confirmed that she would not receive a statutory redundancy payment. Mrs Love then expressed interest in at least commencing a trial period for the alternative role, but her employer confirmed her redundancy. She brought claims for a statutory redundancy payment and unfair dismissal.

The claim for the redundancy payment failed on the basis that the alternative role she had been offered was suitable and her refusal of it was unreasonable. Her later change of mind did not restore her right to a redundancy payment. However, the claim for unfair dismissal succeeded on the basis that it was not reasonable for her employer to refuse to allow her to commence the trial period. The alternative role was still vacant at the point she changed her mind, they had previously been keen for her to take up the role and she was a long serving employee.

When handling redundancy situations, employers should be mindful of the impact on the affected employees and should remain as flexible as possible to ensure a fair process is followed.