New Vento bands
Together with the other changes coming into force this April,
new Presidential Guidance on Employment Tribunal awards for injury
to feelings in line with the Vento bands has been published. For
claims presented on or after 6 April 2024, the Vento bands are as
follows:
- A lower band of £1,200 to £11,700 for less serious
cases; - A middle band of £11,700 to £35,200 for case that
do not merit an award in the upper band; and - An upper band of £35,200 to £58,700 for the most
serious cases. The most exceptional cases are capable of exceeding
£58,700.
These new bands will need to be considered when assessing the
financial liabilities associated with a discrimination claim where
an award for injury to feelings is sought.
Trial periods and the statutory duty to make reasonable
adjustments
The EAT has handed down an important decision
looking at whether or not it is a reasonable adjustment, under the
Equality Act 2010, to give an employee a trial period in a new role
where their disability places them at a substantial disadvantage,
such that they cannot continue in their present job and are at risk
of imminent dismissal.
Here the claimant was diagnosed with multiple sclerosis. While
various adjustments and modifications to his working arrangements
and terms and conditions were made with a view to enabling him to
continue in his current role, it became clear that there was no
viable way he could continue in his current role and possibilities
for him moving into a different role began to be explored.
As part of this process, the claimant applied for the role of
service administrator but was unsuccessful, in part due to his
under-performance in some written assessments. Ultimately, a final
capability meeting concluded that there were no adjustments that
could be made that would enable him to remain in his existing role
and, as he had been unsuccessful in an application for a service
administrator role, there was no other suitable alternative role
for him. He was dismissed and his appeal was unsuccessful.
The claimant brought claims in the Employment Tribunal,
including that the employer had failed to comply with its statutory
duty of reasonable adjustment. The tribunal upheld his claim
finding that although he had been unsuccessful in his application
for the service administrator role, on the facts it would have been
a reasonable adjustment to transfer him into that role for a trial
period.
The Employment Appeal Tribunal (EAT) agreed, noting as
follows:
- The duty on an employer is to take such steps as it is
reasonable to have to take “to avoid” the
substantial disadvantage at which a provision, criterion of
practice puts the disabled employee. The statutory wording
“does not attempt to restrict or sub-categorise what form
such steps might take” in a given case. - There is no requirement that the proposed step must be
guaranteed to work. The Court of Appeal has previously confirmed
that any change “which would or might remove the
substantial disadvantaged caused by the PCP is in principle capable
of amounting to a relevant step. The only question is whether it is
reasonable for it to be taken”. - This is not a case where the proposed adjustment does not
involve any change to an employee’s substantive terms, working
conditions or arrangements, such as simply consulting with the
employee or seeking a medical report. Putting an employee into a
new role effects a substantial change in what they are doing,
albeit that it remains to be seen how it will work out and how long
it will last. - Where the substantial disadvantage is that the claimant is at
almost certain risk of dismissal (as here), it is then open to the
tribunal to consider whether, in the given case, the proposed trial
period in another particular role would remove the risk of
dismissal, or had sufficient prospects of averting dismissal such
that it was reasonable for the employer to be expected to take that
step.
The EAT concluded by finding that in the present case, putting
the claimant into the service administrator role on a trial basis
would have not merely involved postponing the date of his
inevitable dismissal; “it would not be just a short stay
of execution, but held out the prospect of the axe being lifted
entirely”.
The EAT noted that the tribunal “plainly
considered” that it had a real prospect of avoiding the
disadvantage altogether by the claimant being confirmed in the new
role at the end of the trial period – a chance which the
tribunal, when considering remedy, put at 50%. Offering the
claimant a trial period in the service administrator role was a
reasonable step for the respondent to have to take to avoid the
disadvantage on the facts of this case.
This is an important decision for employers when considering
their duty to make reasonable adjustments for a disabled employee
under the Equality Act 2010.
Whether an employer ought reasonably to have put an employee
into a given role, whether on a trial basis or not, is an objective
question for the tribunal based on the facts presented to it. As
the EAT noted “it is not bound to defer to the view of
either the employer or the employee”.
The EAT noted that if the employer contends that the employee
did not meet the essential requirements of the role (in terms of
skills, qualifications, knowledge, experience, or otherwise) and
presents evidence (such as the results of a test or assessment
process that it carried out) in support of its case, that is
evidence that should be carefully considered and weighed by the
tribunal. However, having done so, it may nevertheless conclude, on
all the evidence available to it, and facts found, that in the
circumstances an employee should reasonably have been given a role,
or at least a trial in it.
Here the tribunal noted that the employer’s decision had
been purely based on the recruiting manager’s assessment of the
interview and tests and not a manager who had the benefit of
knowledge of how the claimant performed in his current role. It
therefore had cogent reasons, based in its findings of fact, for
disagreeing with the employer’s view at the time. The
employer’s concerns over the claimant’s performance in the
interview and written assessments could have been met by offering
him a trial period.
Immigration update
The last few months have brought dramatic changes for UK
immigration with more developments on the horizon.
These include changes to arrangements for short-term visitors to
the EU, increased flexibility for those visiting the UK, new
requirements for anyone wishing to return to or join their family
member in the UK, a large increase in penalties for employing an
illegal worker and further changes to e-visas.
The latest update from our immigration team discusses these
topics and sets out key dates over the coming month. It also
addresses one of the biggest questions that UK businesses face at
the moment: can a business implement a policy as to who it will or
will not sponsor for a work visa? We explore the issues many
employers are facing on this complex and topical issue in our Insight.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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