Top 5 recent workplace developments – August / September 2023

This is our selection of recent developments which we think will impact on HR practice.

1. Disability discrimination: Neurodiversity

The Employment Appeal Tribunal has found that an employer failed to make reasonable enquiries into the effects of a job applicant’s dyspraxia.

AECOM’s recruitment process required candidates to create a login in order to complete an online application form. Mr Mallon, who has dyspraxia, emailed AECOM attaching his CV and some general information about dyspraxia and asked to make an oral application instead, on account of his disability. AECOM made repeated requests for him to explain his difficulties with the online process by email but he failed to respond. When he was unsuccessful in his job application, he brought a claim for failure to make reasonable adjustments for his disability. AECOM argued that the duty to make reasonable adjustments was not engaged because he had failed to explain his specific difficulties, despite their repeated requests.

The tribunal upheld Mr Mallon's claim, finding that AECOM had constructive knowledge of the effects of Mr Mallon's disability, despite his failure to provide a full account, and they knew that he had difficulty completing the online application. Given his disability, it was not reasonable to expect Mr Mallon to explain these difficulties in a written communication, and the tribunal stated that AECOM should have telephoned him after he failed to respond to the HR manager’s emails.

AECOM appealed, and the EAT upheld the tribunal’s decision on these grounds. It did, however, uphold an additional ground of appeal (as to whether he had genuinely been applying for the job, rather than seeking to engineer an opportunity to bring a tribunal claim) and this was sent back to the tribunal for reconsideration.

Practical point

This case is a reminder to employers that they may need to adapt their recruitment procedures, as part of the duty to make reasonable adjustments, for neurodivergent job applicants.

If an applicant has a disability, employers should ask whether they require any reasonable adjustments and speak to them directly if their condition makes it difficult for them to communicate electronically.

AECOM Limited v Mallon

2. Discrimination: Gender reassignment

A tribunal has suggested that using a gendered swearword to insult a transgender employee may amount to discrimination.

Ms Fischer, a trans woman, was an agency worker engaged as a bus driver by LUB. When her engagement was terminated after three months, she brought a claim of direct gender reassignment discrimination. The alleged incidents of discrimination included that, while at the depot, a colleague had called her a "w****r". She alleged that this was less favourable treatment because of her gender reassignment and that LUB was vicariously liable for it as it occurred during the course of the colleague's employment.

By a majority, the tribunal dismissed Ms Fischer's discrimination claim. That said, the tribunal noted that it didn’t consider the insult “w****r” to be a gender-neutral term – and accepted that if this was said to Ms Fischer, it was sufficient in principle to establish a case of gender reassignment discrimination.

Although Ms Fischer's discrimination claim failed, the tribunal nevertheless considered whether LUB could rely on the "reasonable steps" defence under the Equality Act and noted a number of additional steps that could have been taken by LUB, including:

• Making clear that its equal opportunities policy applied to agency workers
• Ensuring its equal opportunities policies complied with the EHRC Employment Statutory Code of Practice, which included giving examples of what is and isn’t appropriate behaviour, identifying who is responsible for the policy and setting out details of monitoring and review procedures and drawing the policy up in consultation with workers and any recognised trade union or other workplace representative
• Focusing on inclusion in its policies, rather than on equality alone
• Ensuring policies are readily available to staff and that they are understood
• Raising awareness of equal opportunities generally, but especially transgender awareness
• Setting up employee representative groups, for example an LGBTQ+ group - the tribunal noted that, in an organisation the size of LUB, it was surprising that no such groups existed

Practical point

This is a tribunal decision, so it will not be binding on other tribunals.

The tribunal provided useful advice for employers on the “reasonable steps” they should take in order to raise awareness of transgender issues in the workplace, to minimise the risk of future gender reassignment discrimination claims and to be able to defend such claims if they arise.

Fischer v London United Busways Limited

3. Health and wellbeing: Menopause

A tribunal has found that a worker suffering from menopausal symptoms was discriminated against.

Ms Lynskey, who worked as a motor sales consultant for Direct Line from April 2016, received “very good” performance ratings in that role. From March 2020, it was clear from the information she provided to managers that she was profoundly affected by menopausal symptoms, for which she was seeking treatment. She was then moved to a different team which was considered to be a “better fit” in light of her personal and health circumstances. However, she began underperforming and received a performance rating of “need for improvement”. Subsequently Ms Lynskey had a warning meeting and disciplinary meeting at which her health condition was not fully considered. After a period of ill health, her sick pay was stopped and she subsequently resigned. She brought a number of claims, including disability discrimination.

The tribunal found that Direct Line did not fully consider the impact of the menopause on Ms Lynskey and upheld her claims for failure to make reasonable adjustments and disability discrimination relating to her menopausal symptoms. She was awarded £64,645 in compensation.

Practical point

This is a tribunal decision, so it will not be binding on other tribunals.

Employers should endeavour to recognise that employees struggling with menopausal symptoms may face disadvantages doing their job and should consider whether adjustments can be made.

Lynskey v Direct Line Insurance Services Ltd

Remedy decision: Lynskey v Direct Line Insurance Services Ltd

4. Data protection: Guidance

The ICO has published guidance for employers on processing workers' health data.

The first part of the guidance on processing workers’ health data explains the key rules relating to:

• Complying with the stricter statutory requirements for processing special category data
• Providing employees with information about the processing of their data
• Performing a data protection impact assessment before processing any health data
• Data minimisation and security

The second part focuses on how data protection law applies to specific workplace scenarios, including sickness absence records and occupational health schemes, conducting drugs and alcohol testing, and how to approach sharing employee health data. The ICO sets out recommended good practice that it expects employers to adopt in order to comply with legal requirements. The guidance also contains a set of checklists.

Practical point

The ICO’s guidance on email and security has been published to help organisations understand the law and good practice around protecting personal information when sending bulk emails. 

In addition, the ICO has published the first phase of draft guidance on biometric data. This explains how data protection law applies when biometric data is used in biometric recognition systems. The consultation on the first phase of this guidance closes on 20 October 2023, with the second phase opening for a call of evidence in 2024.

5. Legislation update

There have been a number of recent legislative developments which will impact on employers.

The Employment Relations (Flexible Working) Act received Royal Assent in July 2023 and is expected to come into force around July 2024. This landmark Act introduces several important changes to the current flexible working regime. See our update Navigating the forthcoming flexible working reforms on the key upcoming changes and ACAS’ recent consultation on an updated Code of Practice.

The Protection from Redundancy (Pregnancy and Family Leave) Act came into force on 24 July 2023 but we still await new regulations which are needed to bring the proposals into effect. For details on what new parents will be entitled to under the new law and what this means for employers, see our article New law will give pregnant women and new parents greater protection against redundancy.

The Strikes (Minimum Service Levels) Act received Royal Assent in July 2023. Secondary legislation will however be needed to set specific minimum service levels in the affected industries. A consultation has subsequently been published on a draft Code of Practice setting out the “reasonable steps” which trade unions must take to comply with a work notice issued by employers under the Act.

The High Court held that the Secretary of State had failed to comply with his duty to consult before making regulations allowing employment businesses to provide agency workers to cover striking workers. Consequently, the court quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (The King (on the application of Associated Society of Locomotive Engineers and Firemen, Unison, National Association for Schoolmasters & Others).

The Worker Protection (Amendment of Equality Act 2010) Bill has been amended. As had been anticipated, the third-party harassment provision has been removed and the obligation on employers to prevent sexual harassment at work has been changed to taking “reasonable steps” (previously it was “all reasonable steps”). It seems from the House of Lords debate that this change is intended to make a lower bar for employers than the requirement to take “all” such steps. It is possible that further changes will be made to the Bill as it continues its passage through Parliament.

Practical point

Employers should look out for the secondary legislation which the government has said would be forthcoming “in due course”.

Employers should review and change their policies to comply with the new laws as and when they come into force.