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Archive for October, 2018

Discrimination arising as a Consequence of Disability – Case Update: Sheikholeslami v The University of Edinburgh [2018]

16/10/2018
On 5 October 2018 the Scottish Employment Appeal Tribunal (the “SEAT”) handed down its decision in Professor Roya Sheikholeslami v The University of Edinburgh .  This decision touched on several

On 5 October 2018 the Scottish Employment Appeal Tribunal (the “SEAT”) handed down its decision in Professor Roya Sheikholeslami v The University of Edinburgh [2018].  This decision touched on several areas of interest under the Equality Act 2010 (the “EA”) but for our purposes the comments of most interest were those regarding discrimination under section 15 of the EA.

Section 15 of the EA

Section 15 of the EA prohibits treating an individual unfavourably because of something which results from (but is not in fact) an individual’s disability.

Section 15 is a tricky provision to apply and it can be difficult for businesses to predict its application which can be the source of some angst when trying to avoid exposures. Sheikholeslami provides useful guidance and reminders for businesses. This may help to minimise the scope for discrimination claims.

The facts

The claimant was Professor Roya Sheikholeslami. She was Professor and Chair of Chemical Process Engineering for the University of Edinburgh within the School of Engineering. Her employment commenced on 1 May 2007. Professor Sheikholeslami raised several complaints about her general treatment by the University. Ultimately, this led her to being signed off sick with workplace stress, anxiety and depression in October 2017. It was agreed that her mental condition satisfied the definition of “disability” within the meaning of the EA.

Employment Appeal Tribunal’s Decision

The SEAT overruled the original Employment Tribunal’s (the “ET”) decision which found that Professor Sheikholeslami had not been discriminated against. Despite her complaints regarding the University’s non-compliance with its own procedures, a visa issue resulting from her refusal to return to the School of Engineering and her ultimate dismissal the ET decided that she was dismissed because she “was unwilling or unable to return to work in her existing post”. Although section 15 has always been understood to provide a broader connection test, the ET felt that “there was insufficient evidence before it to make the necessary link with disability”.

In recent years, many decisions have sought to re-emphasise that the causation test in section 15 is whether the unfavourable treatment was for something that arose “in consequence of”, rather than “because of” a disability. In Sheikholeslami, the SEAT has seized another opportunity to stress the same. The SEAT set out the basic questions to be asked as follows:

  • Question 1: did the University treat Professor Sheikholeslami unfavourably because of an (identified) something?
  • Question 2: did the (identified) something arise in consequence of Professor Sheikholeslami’s disability?

In the language of this case, the “(identified) something” was Professor Sheikholeslami’s refusal to return to her previous role and the disability was her work-place stress, anxiety and depression.

So, in the SEAT’s view, the key question became whether the refusal to return to her role was something arising in consequence of her work-place stress, anxiety and depression. This was different to the approach taken by the ET which had said the question before them was whether she dismissed because of her disability. In doing so, the ET incorrectly used the language of direct discrimination in a section 15 claim which was a fundamental error. The SEAT stressed in its decision that for section 15 purposes, the causal connection “may involve several links” and the ET did not seem to contemplate this possibility. The ET should have considered why Professor Sheikholeslami was not prepared to return to her existing post. Professor Sheikholeslami became unwell due to treatment she perceived to derive from the workplace, this became a disability and her refusal to return to the workplace was because of the treatment she perceived. In the words of the SEAT, “in a case like the present one, where the disability, its cause, and its effects are all so interlinked… the broad causation question in section 15 was capable of being satisfied”.

Thoughts

Sheikholeslami clarifies that a looser connection involving more than one link in a chain of causation may be permitted for section 15 claims. For potential claimants, this means that they may have causes of action that they had not initially considered. For businesses, Sheikholesalami is a reminder that they must ensure their staff give careful thought to managing workplace stress. A broad causal rule like this can make it hard to predict what will be considered discriminatory towards disabled staff. Nonetheless, it is a difficult task that must be grappled with and seeking advice will often be prudent.

Our employment department has experience and expertise in all of the above areas.

If you would like any further information, please contact Noel Deans or Sean Field-Walton by email at noel.deans@rosenblatt-law.co.uk, sean.field-walton@rosenblatt-law.co.uk or by telephone at 0207 955 0880.

This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.

Kavanaugh – #metoo – what businesses should learn

05/10/2018 | Noel Deans & Sean Field-Walton
Dr Christine Blasey Ford’s testimony before the US Senate on 27 September 2018 saw her refer to some of the social pressures which she says stopped her from reporting alleged sexual harassment by B

Dr Christine Blasey Ford’s testimony before the US Senate on 27 September 2018 saw her refer to some of the social pressures which she says stopped her from reporting alleged sexual harassment by Brett Kavanaugh in the 1980s. In light of these allegations, a number of other women have made similar allegations in a way that typifies the #metoo movement. For our clients, it is important to appreciate the ramifications of the #metoo movement on their businesses, especially in times of heightened publicity illustrated by the Kavanaugh nomination saga.

Internal procedures

For employers, it is not only proper but also advantageous to have in place robust reporting mechanisms. Given the (justifiably) renewed intensity of the #metoo movement, it has arguably never been more important. Vicarious liability means that an employer is at risk of inheriting responsibility for harassment, discrimination or victimisation caused by its employees. This poses a risk of both financial and severe reputational damage. Elements of the Equality Act 2010 (the “EA”) provide defences where the employer has taken all reasonable steps to avoid the offending treatment occurring. Sadly, all too often internal anti-discrimination, harassment, bullying and whistleblowing policies are not given the attention they are owed given that judges invariably examine these policies when determining whether an employer has implemented sufficient strategies to benefit from a statutory defence.

Non-disclosure agreements (“NDAs”)

The Solicitors Regulation Authority’s warning notice of 12 March 2018 stressed that confidentiality provisions must not (i) lead individuals to feel unable to notify a regulator or law enforcement agency about sexual or other misconduct or (ii) otherwise improperly threaten litigation or adverse consequences. Since then, on 27 March 2018 the Equality and Human Rights Commission has recommended that Parliament introduce statutory codes with broadly the same effect as the ACAS Codes in that non-compliance would give a Tribunal discretion to award a 25% uplift in any compensation payable. This discernible shift in focus towards calls for legislative intervention was echoed by the publication of the Women and Equalities Committee’s (the “WEC”) Report on Sexual Harassment in the Workplace on 18 July 2018 (the “Report”). The Report made a number of recommendations including to (i) legislate to require the use of standard approved confidentiality clauses and (ii) clarify whistleblowing legislation to make clear exactly which disclosures are protected and those that cannot be prohibited by a confidentiality provision.

(i) Prescribed Confidentiality Clauses

The concept of standard clauses is not new. In a separate context, the introduction of GDPR has seen the ICO publish standard (but not mandatory) clauses to be incorporated in contracts regarding the transfer of personal data. Nonetheless, prescribing the form of confidentiality clauses would hamstring parties during negotiations. A Parliamentary draftsperson could try to devise an all-encompassing provision but those efforts are likely to be unsuccessful. The net effect of this proposal by the WEC may be that for parties particularly concerned with confidentiality issues, they may not be encouraged to resolve matters without litigating.

(ii) Tightening Whistleblowing Legislation

Similar concerns arise regarding the WEC’s proposals relating to whistleblowing legislation. On first reading, widening the definition of protected disclosure to include allegations of sexual harassment may sound appealing. We believe this feeling may be misplaced.

The premise that the current legislation does not protect a disclosure of sexual harassment is incorrect. Actions which could be described as sexual harassment can amount to an offence under several statutes as can actions which cannot be described in such strong terms but nonetheless subject an individual to unfavourable treatment on the basis of their sex (or other protected characteristic as defined by the EA). Assuming the disclosure is made to an appropriate person and in the public interest, such disclosures are certainly capable of qualifying for whistleblowing protection under the Employment Rights Act 1996 (the “ERA”).

Further, the whistleblowing legislation implements the principles of the Public Interest Disclosure Act 1998. Judges are keenly aware of the public policy motivations providing a platform for this legislation and use it to be flexible. Introducing tighter definitions of protected disclosure would unavoidably restrict judges’ ability to be flexible and purposive in their application of whistleblowing protection.

Given that whistleblowing legislation is already capable of protecting the sorts of allegations WEC discussed in their Report and that a fundamental premise relied upon does not seem watertight, implementing definitions as they suggest may be counter-intuitive. In other words, it may limit the scope of whistleblowing protection rather than broaden it.

Scaremongering

In employment law, NDAs are most commonly seen in relation to settlement agreements at the termination of employment. The prevailing concern from lobby groups is that individuals are unaware of what they are and are not entitled to disclose when they are subject to a confidentiality restriction. This is difficult to square with the regulation of these agreements which require a legal adviser to certify that they have advised the individual on the terms of the agreement without which the agreement is unenforceable. Most settlement agreements contain stock phrases such as “except as required or permitted by law” which does accurately limit the breadth of the confidentiality restriction. Even if this were unclear to someone without legal training the involvement of a legal adviser should ensure that individuals are fully informed.

What this means for Businesses

The legal position on the reasonable steps defence and use of NDAs remains unchanged. We do not expect the elements of the Report we have discussed to be adopted. Nonetheless, the particular risk of reputational harm flowing from the unethical use of NDAs in the current socio-political climate should be acknowledged. Businesses should consider seeking advice on the appropriateness of their NDAs and confidentiality clauses. In particular, it would be wise to consider steps to “future proof” the enforceability of such clauses in the event that future legislation is introduced with retrospective effect.

Our employment department has experience and expertise in all of the above areas.

If you would like any further information, please contact Noel Deans or Sean Field-Walton by email at noel.deans@rosenblatt-law.co.uk, sean.field-walton@rosenblatt-law.co.uk or by telephone at 0207 955 0880.

This article should not be taken as definitive legal advice on any of the subject matter covered. If you do require legal advice, please contact Rosenblatt as above.

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