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References and discrimination claims

Author: Sarah Naylor

References can be a tricky thing for employers. Let’s start with a brief overview of the legal position on references:

  • A business isn’t legally required to provide a reference if asked, you can refuse to give one
  • If a reference is provided, it should be factually correct

The question often is how much information to put in a reference, and will it put your business at risk. As a result, most businesses will tend to only give brief factual information in a reference, giving employee name, job title and dates of employment. The risk of a reference being factually incorrect is that a business could be open to their former employee bringing legal claims against them.

If you are considering giving more detailed information than this in a reference, it should be done with care.

The recent Employment Tribunal case of Mr P Mefful v Citizens Advice Merton and Lambeth is an excellent illustration of the risks when giving references to prospective employers. The Tribunal found that an employee was discriminated against by their former employer after the reference they gave painted a misleading picture of his past sickness absence.

The case involved an employee who had taken two long periods of sickness absence during his employment with Citizens Advice. He was made redundant and brought a successful unfair dismissal claim against Citizens Advice. The employee was subsequently offered a new job with another employer, and that prospective employer requested a reference from Citizens Advice.

Citizens Advice gave a reference and included in it the following key details:

The employee’s sickness absences in detail
Responded “no” to the question of whether they would re-employ him
Failed to explain why they would not re-employ him and
Failed to answer any questions about his performance

The job offer was withdrawn on the basis of the reference as the prospective employer did not look favourably upon the sickness absences and they were influenced by the statement that Citizens Advice would not remploy him. As a result of this, the employee brought Employment Tribunal claims against Citizens Advice for victimisation and discrimination arising from a disability.

The Employment Tribunal agreed that the employee had been discriminated against for the following reasons:

  • The figures given in the reference for the sickness absences were in accurate and significantly overstated. The Tribunal also criticised the failure to explain the employee’s disability and the impact this had upon his absences.
  • The Tribunal considered that the reference was negative as a result of the claims he had brought against Citizens Advice when he was made redundant.  The Tribunal therefore found that the failure to answer some of the questions was purposely intended to reflect the employee in a bad light and to cause the prospective employer to view the employee negatively; and
  • The reference failed to provide a balances or fair picture of the employee’s time spent working for Citizens Advice

The case illustrates the importance of taking care when giving references, particularly in respect of leavers who may have alleged or brought claims against their former employer. Former employers sometimes find themselves in a difficult position when asked to provide a reference. They owe competing duties to both the former employee and the prospective employer and the consequences of providing a reference which is not fair, accurate and misleading can be costly.

Employers who choose to provide detailed references should always ensure they are fair, balanced and factually correct.

 

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Heatwave alert: dress code and office policy

Author: Sarah Naylor

The recent heatwave we have been experiencing has dominated our news over the last few days, alongside of course the tragic events of Manchester, London and Grenfell Tower.

Amongst the hundreds of news reports have come several which relate to dress codes. What policies do businesses have for dress codes? How appropriate is it to enforce these under extreme temperatures? Has health and safety been considered?

We have seen news reports of Palace Guards fainting during the Queen’s speech event due to overheating under the extremely heavy uniforms which incorporate 2lbs of bear skin. We have also seen reports of children being sent home from school or kept away from school by their parents because some schools have refused to relax their policies on blazers being worn despite the hot weather.

A new report which particularly grabbed my attention related to a male call centre worker. The office policy on dress code was that males should wear smart trousers. Due to the extreme heat, the worker went to work wearing a smart pair of chino shorts. He was promptly sent home by managers and asked to change into clothing that accorded with the office policy. The worker felt that the policy was discriminatory given that females are permitted to wear skirts and dresses. So, he decided to change his clothing but returned to work in a dress to make the point clear. This resulted in quite some controversy in the workplace, and though the employer did initially ask him the change clothing again, he argued his point and very quickly an e-mail was issued to the staff confirming that under the circumstances the dress code was to be relaxed to enable male employees to wear smart shorts.

This raises some interesting considerations over what an appropriate workplace dress code is and ensuring that this is not discriminatory in any way. There are a number of ways a dress code can be discriminatory beyond sex, it is important for employers to overall consider other factors such as religion and cultural dress.

Under circumstances such as the current heatwave, to what degree should an employer relax their dress code? Health and safety of staff members should always be a frontline concern. This should be considered in tandem with office temperature, whether there are air con units or fans in operation to keep the indoor temperature down, and whether there is sufficient ventilation in the office.

Employers need to consider this issue carefully to avoid health and safety breaches, staff complaints, discrimination, and a potential rise in sickness absence.

If you have any concerns about this issue and would like further advice and information, contact our employment law experts on 01302 320621 or email info@athertongodfrey.co.uk.

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Surgery being rationed to save money

Author: Gail Harris

We all accept that the NHS is under pressure to cut its astronomical deficit and meet ever tightening targets, but are some patient groups becoming scapegoats?

Some reports suggest that as many as 60% of NHS Trusts are restricting access to surgery for smokers and the obese. One Trust has gone even further and banned all treatments for anyone with a Body Mass Index (BMI) above 35 in an attempt to reduce its £14.5m shortfall.

Further restrictions include instructing patients with a BMI of 35 or above to shed 5% of their body weight before they can be considered for surgery for routine procedures such as joint replacements or even tonsillectomies, whilst smokers have to quit at least 8 weeks before surgery. And a total of 30 Clinical Commissioning Group’s (CCG) have refused to fund IVF for women with a BMI in excess of 30.

The moves are not welcomed by senior doctors who have branded them as ‘blatant rationing’.

Dr Richard Vautrey, deputy chair of the British Medical Association’s GP committee, said managers were using ‘spurious clinical reasons ‘to discriminate against some patients. He added: “If we’re going to ration a service we should ration it for all people, not just those in particular groups and pretend it’s for clinical reasons. If it’s purely down to cost saving, it’s not ethical. There are clearly cases where certain people’s body size may make it difficult to safely do a procedure, but they’re exceptional. I think what’s happening here is overt rationing to save money.”

The Royal College of Surgeons has also aired concerns about the move saying that it was storing up ‘greater pressures’ for the future. It added: “Losing weight or giving up smoking is an important consideration for patients to improve their outcomes, but for some patients these steps may not be possible. A blanket ban on scheduled operations for those who cannot follow these measures is unacceptable.“

Dr David Haslam, chair of the National Obesity Forum said: “What we hate as GP’s is blanket bans and you can’t just take BMI as a reason to operate or not.”

Public Law and Judicial Review solicitor, Angela Sandhal, comments: “We recognise that a rising population and the fact that people are living longer will inevitability have an impact on NHS resources. However, it is unsatisfactory for CCGs to have blanket policies in place which prevent doctors from making appropriate decisions about their patients based on their clinical judgement. Policies of this kind are very likely to be susceptible to judicial review which has proven successful in other similar cases.”

Do you believe your surgery has been delayed or cancelled because of your weight or because you are a smoker? Talk to us. We are experienced public law specialists and can give you the expert advice and support you need. Call 01302 320621 or email info@athertongodfrey.co.uk