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3 Things We Learnt In Law This Week (27 December 2018)

Does an Employee Have a Right to a Statement of Employment Particulars When Employed for Less Than 2 Months?

Yes, if they have worked continuously for at least 1 month, held the EAT in Stefanko and others v Maritime Hotel Ltd.

The Claimants were all employed as waiting staff by the Maritime Hotel. They all had relatively short periods of employment of a few months. One Claimant, Ms Woronowicz, was only employed for 6 weeks. She succeeded in a claim for automatically unfair dismissal. She had complained of a failure to provide either a payslip or statement of employment particulars.

The ET declined to increase that award under Section 38 Employment Act 2002, as Ms Woronowicz did not have 2 months’ continuous employment; 2 months being the amount of time given by section 1(2) Employment Rights Act 1996 for an employer to provide a statement. On appeal the EAT decided that was incorrect.

Section 2(6) ERA says that the right to a statement of employment particulars exists even if a person’s employment ends before the 2 months are up. Ms Woronowicz was therefore entitled to one, and an increased award.

Currently there is an exception to the right for employees who work for less than 1 month. That is due to be repealed by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 with effect from 6th April 2020. From then every new employee will have the right from day one.

Disability Discrimination: Dismissal of a Shoplifting Employee with a Tendency to Steal

The EAT, in Wood v Durham County Council, confirmed that an employee’s “tendency to steal” was a manifestation of his disability and as such was an excluded condition under the Equality Act (Disability) Regulations 2010. The claimant’s disability discrimination claim was therefore dismissed.

Mr Wood was employed by Durham County Council as an Anti-Social Behaviour Officer. An essential requirement of the role was clearance at Non-Police Personnel Vetting (NPPV) Level 2.

In August 2015, Mr Wood was apprehended outside a branch of Boots for shoplifting. He signed a statement admitting to taking various items from the store with no intention of paying for them. When asked about his occupation by the police, he was dishonest and said he worked in security. He was subsequently issued with a Penalty Notice for Disorder and paid a £90 fine.

In October 2015, the council became aware of the incident after Mr Wood’s NPPV application was refused. He initially denied knowledge of the incident before admitting to recalling the incident but denied responsibility. Following a disciplinary process, he was dismissed.

Mr Wood brought claims for disability discrimination and unfair dismissal, arguing that his PTSD and associative amnesia caused him to forget both to pay for the items and to inform his line manager of the incident.

The council conceded that Mr Wood had a mental impairment of PTSD and was therefore disabled; however, the council argued he had a “tendency to steal”, a condition expressly excluded from the protection of the Equality Act 2010.

The ET agreed and held that Mr Wood could not bring a disability discrimination claim because his dismissal (the act of discrimination relied on) had been due to his tendency to steal, which excluded him from protection. On appeal, the EAT upheld the Tribunal’s decision.

This case highlights that, where the reason for the treatment complained of is the excluded condition, the individual will not be afforded protection under the Equality Act 2010 in relation to disability discrimination. As well as the “tendency to steal”, other express exclusions include the “tendency to start fires”, an adictiond to alcohol, nicotine or any other substance, exhibitionism and voyeurism.

Government Publishes Voluntary Disability Reporting Framework 

The government has published a new voluntary reporting framework for large employers (those with over 250 employees) who want to record and report on disability, mental health and wellbeing in the workplace. The Framework suggests that employers:

  • explain what they do as regards the recruitment and retention of disabled people and to support the health and wellbeing of their employees
  • where possible, report the percentage of employees who consider themselves to have a disability or long term health condition (mental or physical) and the output of staff surveys that measure wellbeing. 

The decision about where to report this information is left to the employer to decide, although annual reports are recommended. Companies with more than 250 employees are in fact already required to state their policies on the following in their annual reports (although most do so only briefly):

  1. for giving full and fair consideration to applications for employment by the company made by disabled persons, having regard to their particular aptitudes and abilities
  2. for continuing the employment of, and for arranging appropriate training for, employees of the company who have become disabled persons during the period when they were employed by the company
  3. otherwise for the training, career development and promotion of disabled persons employed by the company

It remains to be seen how many employers adopt the framework and whether it has an impact on the content of annual reports. The voluntary initiative on gender pay gap reporting which preceded the introduction of compulsory reporting in 2017 was notoriously undersubscribed. However, this framework may be regarded as less onerous and as a potential opportunity for some employers to tell a positive story which helps them attract and retain talent.

SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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