1. Emma Webb Trainer/Adviser Acas South East ewebb@acas.org.uk
Acas – How we help
Emma Webb
Trainer/Adviser
Acas South East

2. Section One
Who are we?

3. Who are we? Our aim is to improve organisations and
Up to date
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4. Who are we? Trainers Extensive knowledge Local economics Local needs
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5. Section Two
our areas of expertise

6. Area of expertise – Dispute Resolution
Conciliation
Collective conciliation helps parties in dispute to reach or make progress towards agreed settlements which they all find acceptable
Individual conciliation helps settle complaints about employee rights. From May 2014 an employee must notify Acas before making a tribunal claim.
Early Conciliation builds on the success of Pre Claim Conciliation. A notification to Acas first offers the benefit of a protected period where parties can concentrate on settling their difference rather than preparing for tribunal.

7. Area of expertise – Dispute Resolution
Mediation
trained mediators
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advise on a range of approaches
help you develop a workplace mediation scheme
Mediation Training
Certificate in workplace mediation

8. Area of expertise – Preventative Action
Training solutions
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Open-access courses
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9. Acas Training www.acas.org.uk/training
Discipline & grievance at work
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Having
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conversations 9

10. Area of expertise – Preventative Action
Business solutions
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12. Area of expertise Comprehensive up-to-date advice to help you....
helpline
practical face to face
website
38 % of calls discipline & dismissals

13. Helpline Call subjects 2015
Base: 903,679 calls

14. West v Yorkshire Ambulance Service NHS
Can an employer withdraw a job
offer to an employee where a
reference highlights previous
long-term ill-health absences?
No says the EAT.
The employment tribunal has upheld a claim for discrimination arising from disability against an employer that withdrew a job offer when it discovered the extent of the claimant's previous long-term ill-health absences.
Practical tips
It is extremely dangerous for an employer to withdraw a conditional job offer on the basis that a new recruit had a high level of absence in a previous job.
It is also risky for an employer to withdraw a conditional job offer on the assumptions that the recruit has a health problem that will prevent him or her from performing the role and that the difficulties cannot be overcome by a reasonable adjustment.
An employer thinking of withdrawing a job offers in these circumstances must investigate further. For example, it should seek further medical advice, discuss the issue with the individual, and consider the nature of the condition and its effect on his or her new role.
Mrs West, a nurse with a disability, applied for a post as an NHS 111 helpline adviser. Her employment in her previous NHS role was terminated with her consent following an 18-month absence because of ill health.
A conditional offer of employment was made to Mrs West, who was required to attend a six-week induction course. However, four days before she was due to start the course, her new employer received her reference from her previous employer and an occupational health assessment. The occupational health assessment involved only a telephone conversation with a nurse, and not a medical examination.
On receiving the reference and occupational health assessment, Mrs West's prospective new employer withdrew the conditional offer of employment. By the day on which she was due to start her course, she had not seen the letter withdrawing the offer, which had been delivered while she was out, and which she had not yet gone to collect.
Mrs West found out that the offer had been withdrawn when the trainer contacted the employer's HR department during her first day of training. The tribunal accepted that her employment had not started by the first day of the training, and the offer of employment was still conditional at that point.
The employer had also identified mobility problems as a potential issue from the "very brief" occupational health report. Part of Mrs West's job would have been going to other call centre workers' desks to offer advice.
The occupational health report advised that Mrs West should "change her position regularly every 30 minutes to avoid sustained static postures". The employer took this to mean that Mrs West needed to take a break of a few minutes away from her workstation every 30 minutes.
Mrs West claimed in the employment tribunal that the withdrawal of the job offer constituted discrimination arising from disability under s.15 of the Equality Act 2010.
Section 15 makes it unlawful for an employer to treat an employee unfavourably because of something "arising in consequence of" his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability. An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim.
The employment tribunal accepted that the job offer withdrawal was unfavourable treatment because of something arising in consequence of her disability.
The tribunal pointed out that Mrs West made no secret of her disability and previous sick leave. It was unclear to the tribunal why the employer, which asks for references in part to establish applicants' levels of attendance, had not simply asked Mrs West to confirm how long she had been off work in her previous position.
The sole issue for the employment tribunal then became whether or not the employer's withdrawal of the job offer was a proportionate means of achieving a legitimate aim.
The employment tribunal was struck by the speed at which the decision to withdraw the job offer was taken once the employer had received the reference and occupational health report. Managers based their decision purely on those documents, and did not consider Mrs West's application nor interview. No contact was made with Mrs West, nor with the occupational health adviser, to seek any further information.
The tribunal decided that the employer had misinterpreted the occupational health report when it concluded that Mrs West would need a break away from her desk every 30 minutes. The report was referring to postural problems only. In addition, any mobility issues were not a problem: Mrs West had had difficulty moving around her previous large workplace, but there was no evidence that she would have any difficulty moving around her new workplace.
The employment tribunal rejected the employer's justification defence, once it became clear that the employer had taken the decision to withdraw the job offer without investigating further the possible impact of Mrs West's condition on her performance. Any rationale the employer had come up with for the withdrawal of the job offer was in any event flawed.
The tribunal upheld Mrs West's claim for discrimination arising from disability under the Equality Act It said that it did not need to go on to consider her claim for failure to make reasonable adjustments, which it described as "much harder to bring".

15. Kelly v Covance Laboratories Ltd
Is an instruction to a non-native English speaker not to speak in her native language at work discriminatory?
No says the EAT.
The Russian-born Claimant alleged that she had been subjected to discrimination and harassment on the grounds of race or national origin. The Claimant was instructed not to speak Russian at a laboratory involved in animal testing, her conduct in leaving her work station and talking on her phone gave the Respondent cause for concern that she might be an animal rights infiltrator. The Respondent's language policy operated in the context of the Respondent's requirement for its English-speaking managers to understand conversations for security reasons. On the facts found by the employment tribunal, the policy of requiring only English to be spoken at work was not applied because of the Claimant's race or national origin, but her behaviour at work in the context of that particular working environment, it was neither direct discrimination nor harassment, and there was no evidence that the instruction had caused any harassment. Whilst it can be direct discrimination or harassment to ban the use of a foreign language at work, a comparator speaking any other language apart from English would have been treated in the same way as the Claimant. The EAT rejected an arguement that there was an intrinsic link between the instruction and the Claimant's national origin as she had been instructed not to speak in her 'native Russian', the Respondent's explanation demonstrated no link to national origin in the complained of treatment.

16. Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians
Is telling an employee with
depression “everyone gets depressed
sometimes, you just have to pull
yourself together,” disability
discrimination?
Yes says an Employment Tribunal.
An employment tribunal has held that a director’s comment to an employee with depression that “everyone gets depressed sometimes, you just have to pull yourself together” was discrimination arising from disability.
The employment tribunal decision in Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians concerned a director who made dismissive comments about an employee’s medical condition.
Ms Wickers, an optical assistant at Specsavers, received some formal and informal warnings for failure to comply with the employer’s absence notification procedure, lateness and a dispensing error.
She became tearful during her appraisal with a director and he advised that she should see her GP.
Ms Wickers later told the director that she was struggling with depression and he responded by saying that he had no sympathy for “this kind of thing”.
The director went on to say that “everyone gets depressed sometimes, you just have to pull yourself together”.
Following a number of periods of absence and another dispensing error, Ms Wickers was again late for work and the director decided to go “straight to disciplinary action”.
This was despite Ms Wickers telling him that she told him she was on medication and had been diagnosed with depression.
Ms Wickers resigned after being told that she was likely to be dismissed.
Ms Wickers brought successful claims for disability discrimination in the employment tribunal.
The tribunal held that the director’s unsympathetic approach to the claimant’s condition led to discrimination arising from disability under the Equality Act 2010.
Ms Wickers had been late on the day in question because she had overslept due to her medication and the effect of the medication on her sleep was something arising from her disability.
The employment tribunal also upheld her claims for failure to make reasonable adjustments and harassment.
The parties agreed that the employer would pay compensation of £7,500 and provide an agreed reference. Ms Wickers was also awarded £893 in costs

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