Welcome to the next edition of Employment Law Matters, our quarterly update on key issues in employment law. Every three months, we will send you a selection of the most important developments for employers in case law and legislation, including practical takeaways for employers as well as things to look forward to in the coming months.
CM Murray LLP are leading specialist employment law advisers to multi-national companies and senior executives. If you have any topics you would like us to cover in our regular updates, please do get in touch.
ACAS Reasonable Adjustments for Mental Health
As awareness of the importance of mental well being increases, supporting employees with their mental health in the workplace is becoming ever more crucial. The requirement under the Equality Act 2010 that employers must make reasonable adjustments for workers, contractors, self-employed people and job applicants applies equally to mental health disabilities as to physical disabilities. New guidance from ACAS published in April 2023 provides helpful advice for employers who are having to consider their obligations in this regard.
The guidance provides the definition of a disability, stating that “disability is defined as a mental or physical impairment that has a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities.” However, the guidance is clear that while the duty to make reasonable adjustments is dependent on the employee satisfying the legal definition of a disability, employers should try to make reasonable adjustments even if the mental health condition or concern does not satisfy the legal definition of a disability.
The purpose of this is to encourage reasonable adjustments to be made which prevent an employee’s condition deteriorating and becoming a disability under the Equality Act in the future but also because employers always have an obligation to provide a safe place to work and should be implementing supportive measures for their employees as far as possible.
Mental health is individual to each person and it is important to remember that reasonable adjustments should be just that – reasonable – taking into consideration the particular circumstances including the size and resources of the employer. While the guidance is clear that the process for determining what could be considered a reasonable adjustment should be a collaborative process, involving the employer and employee exploring possibilities together, ACAS provides practical suggestions for what would constitute a reasonable adjustment, using the following examples:
- Changes to working hours and patterns
- Changes to someone’s physical environment
- Changes to someone’s working arrangements
- Finding a different way to do something
- Adapting the way policies are applied; and
- Providing equipment, services or support
ACAS state that both employers and employees will benefit from following this guidance and creating a healthy work culture and building mental health awareness. Employers specifically will benefit through employee retention and reducing absence costs.
Will New York State ban non-competes?
In June this year, State Bill S 3100 was passed in the New York senate and assembly. It is a Bill to prohibit non- compete agreements and certain restrictive covenants and if passed into law would align New York’s labour law with that of California, North Dakota, Oklahoma and Minnesota in this important respect. However, in order to become law, it must be signed or vetoed by the NY State Governor, Kathy Hochul, by 31 Dec 2023.
An estimated 44% of New York’s workplaces subject employees to non-compete agreements, according to the legislation’s sponsor, Senator Sean Ryan, a Democrat. They are widely used for senior executives of financial firms such as private equity investment firms and hedge funds, where prohibitions on employees moving to a new firm can apply for up to two years. Hundreds of such firms including banks, private equity firms, law firms, retail giants and telecom companies and The Securities Industry and Financial Markets Association oppose the Bill in its current form, which would apply to all employees, regardless of their income.
We understand that Governor Hochul is currently reviewing the Bill and it could take months before it passes legal review as any changes must go back to and be approved by the Senate and State Assembly. If passed, it will become State law after 30 days. At least 11 other states plus the District of Columbia have restricted employers from imposing non-compete contracts on workers below certain income thresholds to protect low-wage earners, but most have stopped short of an outright ban. Only California, North Dakota, Oklahoma and Minnesota prohibit virtually all employee non-compete agreements, but allow for narrow exceptions in cases involving a shareholder covenant when a business is sold or transferred.
If New York state pass the legislation in its current form, it is likely to speed up similar reform in other states and may even render unnecessary the US FTC proposal (earlier this year) to ban all non-competes nationally. It will also be watched with interest in the UK, where reform of the law on non-competes has also recently been on the agenda. Following a 2020 consultation, the UK Government has decided not to ban non-competes but rather to limit them in duration.
Having considered the responses to the consultation, and carried out further research, the UK government confirmed in May this year, that it will introduce a statutory cap on non-compete clauses of three months. The cap will apply to employment and worker contracts only, and not to other workplace contracts, such as LLP agreements or shareholder agreements, but no date has been set for implementation.
The Carer’s Leave Bill received Royal Assent on 24 May 2023, becoming the Carer’s Leave Act 2023. The Act provides the pathway to new rights and protections at work for employees who have caring responsibilities.
What rights and protections will carers be given?
- A Day 1 right for employees to take at least one week’s unpaid carer’s leave in any 12-month period to provide care for, or make arrangements to provide care for, a dependant who has a long-term care need. In this context, a “long-term care need” means: an illness or injury (physical or mental) likely to require at least three months of care; a disability under the Equality Act 2010; or care needs relating old age (although “old age” is not defined)
- A right to benefit from the existing terms and conditions of employment that would have applied but for the leave (apart from terms and conditions about remuneration)
- A right to return to work to a job of a kind to be prescribed by the regulations
- A right to claim compensation from employers who unreasonably postpone, attempt to prevent or prevent the taking of carer’s leave
- Protection from detriment or dismissal as a result of having taken carer’s leave
Separate regulations are due to be released, although not before April 2024, which will aim to address the specific requirements. They may outline how and when leave can be taken, required notice, record keeping and what activities are covered by the Act.
What steps can employers take to support neurodiverse employees in the workplace?
This is not the first time an employment tribunal has had to consider unfair dismissal cases from neurodiverse employees where the employer has either failed to make reasonable adjustments or followed advice in occupational health (OH) reports. The tribunal found that there were no adjustments in place at the time of the incident. It was accepted by M&S that work place assessments had not been carried out, and that none of Mr Clark’s OH reports were before the manager making the decision to dismiss. The tribunal noted that it takes very seriously the need for the employer to provide a safe workplace for its employees and to protect them from harassment and accepts that that is a legitimate aim for an employer. It accepted that Mr Clark’s proposal that he be told after an event that his actions were inappropriate was not a solution to a safeguarding problem. However, the tribunal noted that before the pandemic when Mr Clark had a stable job with stable shifts no problems arose. With a supportive manager, an adjustment of a stable position with stable shifts in the bakery had been introduced in 2021, Mr Clark had worked without incident, until the adjustment ceased at which point Mr Clark found himself in a position where shift changes were proposed which he felt, because of the nature of his disability, unable to refuse.
We have considered what an employer can do when hiring a neurodiverse employee to support them in the workplace and whether there should be policies in place or recognised procedures in light of the tribunal’s finding, for example, that ad hoc meetings with the employee which were favoured by management were not helpful for the autistic employee (and had been advised against by occupational health). We also considered how managers might be assisted in understanding how someone with autism sees the workplace and best practice when dealing with a disciplinary matter linked to a person’s disability.
Recognising that 1 in 7 employees are likely to be neurodiverse (15%), it is incredibly helpful for employers to demonstrate some awareness of what neurodiversity is, what it means for individuals who experience it, and that the employer is prepared to embrace and recognise neurodiverse employees within their business. This may be demonstrated through workplace training and awareness raising sessions for staff, amongst other things, and making positive statements of inclusivity specifically with regards to neurodiversity to the wider world i.e. by participating or supporting neurodiverse campaigns or expressing this on the employer’s social media/website. Adding into existing policies reference to neurodiversity awareness will help, i.e. those relating to recruitment, flexible working, grievance disciplinary or performance management, training and other management guidelines.
Not all neurodiverse employees’ condition will constitute a disability, for example the effect on them may be nominal or trivial. If it is more than this and might constitute a statutory disability under the Equality Act 2010, then don’t make assumptions that the disability will have a particular impact on them – find out through consulting the employee (or their relatives are often fully prepared to do this as was exemplified in the present case) recommendations from their treating medical consultants or the employers own occupation health or by using specialist neurodiversity workplace advisors such as Adjust Services or Genius Within, and consult the ACAS guidance on neurodiversity in the workplace. Once the employer has the required information to determine what workplace adjustments might be reasonable, the employer must adhere to these and share that information as appropriate. The present case exemplifies how failing to do so causes such difficulties for the employee in the workplace it can impact their ongoing employment. And finally, ensuring adequate exchange of information when management changes. One way might be to have mentors or champions for neurodiverse employees who can ensure that reasonable adjustments are being adhered to and speak up for the individual if problems appear to be arising.
Mr Couture resigned by giving 12 months’ notice in March 2022 and Jump immediately placed him on garden leave. He was subject to an unusual non-compete covenant, which (rather than being for a fixed period) provided that Jump could specify the duration of the restriction up to a maximum of 12 months, and it told him that it would impose a 12 month restriction at the end of his garden leave. In July 2022 Mr Couture told Jump of his intention to join one of Jump’s competitors, Veriton, at the end of his garden leave, which would be a breach of the non-compete restriction if it were enforceable. The parties attempted to resolve their dispute by negotiations which lasted until November 2022, when Mr Couture made it clear to Jump that he would be starting at Veriton in April 2023 but would not be doing any work which competed with Jump.
It was only four months later, in April 2023, that Jump applied to the High Court for an interim injunction to enforce the non-compete covenant, and it could not explain the reason for this delay. Although the Court ordered a speedy trial to determine whether Mr Couture was in breach of the covenant, it refused to grant an interim injunction due to Jump’s delay in making the application. This meant that Mr Couture could carry on working for Veriton pending the outcome of the trial. Jump sought permission to appeal this decision, but the Court of Appeal refused as the judge had been entitled to find that Jump’s delay was unreasonable and that this made it unjust to grant interim relief.
The Employment Appeal Tribunal (EAT) recently considered whether a person could allege they had been harassed if they were not aware of the conduct at the time, but subsequently became aware of it. This case provides an important reminder that the test for harassment is not just whether the conduct has the purpose of effect of creating the relevant adverse environment or affecting the victim’s dignity, but also requires investigation as to whether the claimant ‘perceives’ themselves to have suffered from harassment at the relevant time.
The Claimant worked for Royal Mail and it was accepted that, as a result of his Asperger’s Syndrome, he was disabled for the purposes of the Equality Act 2010 (EqA 2010). Two of the Claimant’s colleagues submitted bullying complaints against him, which were upheld following an investigation. During the course of the investigation, the Claimant became aware that these same colleagues had made disparaging remarks about his disability and had disclosed confidential information about him. The Claimant brought a number of claims against Royal Mail, including harassment.
Harassment, for the purposes of the EqA 2010, occurs where someone is subjected to unwanted conduct related to a protected characteristic that has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environments for them.
In the first instance, the Employment Tribunal (ET) found that while the conduct complaint of could have the effect of violating the Claimant’ s dignity and creating an intimidating, hostile, degrading or offensive environment for him, it could only do so once the Claimant became aware of the comments. The Claimant had become aware of the conduct in question during a grievance investigation into his own bullying behaviour. In the context of that investigation the ET held that it was not reasonable for the conduct to have such an effect on him, and it dismissed his claims.
On appeal to the EAT, the Claimant argued that a person’s dignity could be violated even if they were not aware of the unwanted conduct at the time it occurred. The EAT rejected this argument, noting that the test for harassment under the EqA 2010 is a cumulative one and therefore, when considering whether an individual’s dignity has been violated, the Tribunal is required to take certain factors into account, including the perception of the Claimant. In the present case, as the Claimant was unaware of the conduct, there could be no perception.