Vicarious Liability for Data Breach

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Category: HR Alerts

Morrisons staff are to be awarded a pay-out over a data breach that occurred, when a disgruntled former member of its staff stole the data of thousands of employees and posted it online. Morrisons has been found liable for the actions of the employee by the High Court with the ruling opening the possibility for 94,000 people affected to bring a compensation claim.

Workers brought a claim against the company after employee Andrew Skelton, a senior internal auditor at the retailer’s Bradford headquarters, stole the data, which included salary and bank details, of nearly 100,000 staff. He then posted the payroll information online and sent it to newspapers in 2014. He was jailed for eight years in July 2015 after being found guilty of fraud, securing unauthorised access to computer material and disclosing personal data.

The Judge noted that it would be impracticable for Morrisons to routinely monitor all internet searches and that, even if it were feasible, it would have been disproportionately expensive. In any event, such monitoring would have been difficult to justify, since it would most probably amount to an unlawful interference with employees’ rights to privacy and family life, with little by way of balancing factor to suggest otherwise.

The test to establish vicarious liability was whether his actions were carried out in the course of his employment role in respect of payroll data, which was to receive and store it, and to disclose it to a third party (i.e. the external auditor). The fact that he chose to disclose it to others who were not authorised was nonetheless closely related to what he was tasked with doing. Although the disclosure took place outside working hours, and from his personal computer, there was a sufficient connection between the employee’s employment and the wrongful conduct, for it to be right to hold the employer liable.

Their lawyers said the data theft meant the group of 5,518 former and current employees were exposed to the risk of identity theft and potential financial loss and that the company was responsible for breaches of privacy, confidence and data protection laws. They also said: “Every day, we entrust information about ourselves to businesses and organisations. We expect them to take responsibility when our information is not kept safe and secure. The consequences of this data leak were serious. It created significant worry, stress and inconvenience for my clients. Data breaches are not a trivial or inconsequential matter”.

A second trial will be held to determine the amount Morrisons must pay in damages. This is despite the fact that the disgruntled employee’s intent was designed solely to damage his employer’s business and has therefore succeeded.

It is a difficult decision albeit the direction of the law is clear in making employers responsible as a matter of public policy.

Peter Stanway, our BackupHR™ legal expert comments:

The case demonstrates that employers can be held vicariously responsible for the acts, lawful and unlawful, of its employees. If nothing else the case may help some employers to come to terms with the seriousness of data protection as a new tougher law comes into effect in May.

Actions:

  • Review your data protection policies and procedures against not only the current but forthcoming legal requirements.
  • Strengthen your internal (and outsourced) controls on access to data.
  • Train employees on data protection requirements.
  • Deal effectively with disgruntled employees. Risk assess what access they have to personal data. Consider locking down or minimising their access to data whilst their issues are being resolved.
  • Create a culture that values data privacy and allegiance to the organisation.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

Many employers have been rather slow to recognise work related driving as a major risk factor to employees. The HSE has now made it clear that employers have duties to manage the risks faced by their workers on the road. This includes not just professional drivers, but any employee who is required to travel as part of their normal job duties.

Peter Stanway, our BackupHR™ legal expert comments:

Managing this risk requires more than just compliance with road traffic legislation. Bad weather which may involve snow, winds, floods or fog, highlights the need to ensure drivers are given guidance to make employee drivers reasonably safe. While health & safety law does not apply to commuting, it is wise to make sure you have a ‘Disrupted Travel’ Weather Policy’ in place. This ensures that all employees know exactly what is expected of them.

If this seems daunting consider:

  • Are you prepared to wait for an employee to be seriously injured or even killed before you take any action?
  • The Corporate Manslaughter and Corporate Homicide Act can be used to prosecute organisations for work related driving deaths.
  • If you think safety is expensive consider the financial consequences arising from fatalities and serious work-related injuries leading to legal claims.

There is much information available on the web for drivers but very little for employers. Employers should ensure their drivers understand the risks, and, are trained and equipped to help them cope with adverse conditions.

You need to be aware that dismissing employees for refusing to drive in extreme weather conditions will be automatically unfair in circumstances where he/she reasonably believes that there is a serious and imminent danger to themselves or others, hence the need for good training, policies and risk assessment.

The best advice for driving in bad winter weather is not to drive at all, if you can avoid it. Some businesses do not have this luxury or will have drivers caught out unexpectedly by bad weather.

In addition to education, we would recommend:

  • ensuring vehicles have regular safety checks
  • joining a roadside assistance service
  • equipping vehicles with emergency supplies such as a snow scraper, flares, first aid kit, flash light, bag of sand, small shovel, blanket and booster cables
  • posting the number the employee should call in case of emergency in clear view inside the vehicle
  • providing guidance in a useful booklet in the vehicle
    >li>providing advanced driver training to employees that drive regularly, for example, more than 10,000 miles each year. This significantly reduces any employer vicarious liability should they be involved in a serious accident of their making, whilst at work.

If a Disrupted Travel Policy is not in place, you can contact BackupHR™ for help in outlining both you and your staff’s responsibility when bad weather comes.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

The case of Ms Carolina Gomes v. Henworth Limited t/a Winkworth Estate Agents & anor. serves as a useful reminder to be careful when selecting your choice of words when talking to employees.

Ms Gomes started working for an estate agency business in 2009. In 2015 she was transferred to another franchise as an administrative assistant. In 2016 there were concerns with her work and meetings were held during which she was told to be more careful. She was aged 59 at the time she was told that she would be “better suited to a traditional estate agency”. Ms Gomes took this to mean that she was being told that she was too old to work in that office. She also felt that she was being told to leave the business. She had intended to stay with the company until she retired at 65.

Ms Gomes was not satisfied with the outcome of a grievance that she raised. She appealed and also tendered her resignation and brought an age discrimination claim at Employment Tribunal. Her claim of direct age discrimination was concluded to be well-founded, as were the claims for harassment related to age and constructive unfair dismissal. The Tribunal was satisfied that the reason for her resignation was the treatment she received. The Tribunal held the phrase “better suited to a traditional estate agency” was a reference to her age and it was unlikely that such a comment would have been made to a younger employee. Their comments and actions had the effect of violating Ms Gomes’ dignity and amounted to harassment relating to her age.

The Tribunal also found that their references to things “not working out” and for her to “sleep on it” conveyed the message that they did not want her to continue working for them. It was reasonable for her to take the view that there was a fundamental breach of the implied term of mutual trust and confidence that entitled her to resign.

Peter Stanway, our BackupHR™ legal expert comments:

This case serves as a reminder to employers of the risks of using words and phrases that could be taken to be a reference to someone’s age. Each case will of course be decided on its own facts, and this case was only at Employment Tribunal level, so is not binding on any other Tribunal, but it does show how serious the consequences of using phrases that clearly infer an intention such as in this case – we want you to leave. Claims for discrimination and harassment can also succeed on the basis of one-off statements which allude to an employee’s protected characteristic(s) e.g. age or gender, without directly referring to it.

Actions:

  • It is essential have good equal opportunities and dignity at work policies in place which prohibit discrimination in all aspects of the business.
  • You also need to ensure that everyone is fully aware of the policies and the importance of abiding by them.
  • Training management, employees and even workers in these policies, is key to ensuring that people not only understand but actually comply with the stated requirements.
  • Adequate steps need to be taken as a result of any breaches and remedial training provided to staff as is reasonably necessary.
  • Taking all reasonably practicable steps to prevent discrimination from taking place, including training, will provide an employer with a good first line of defence to Tribunal claims.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Harvey Weinstein scandal, and allegations at Westminster, amongst others, has once again placed the spotlight on sexual harassment reporting. Victims of sexual harassment are often reluctant to report incidents for fear of retaliation, being disbelieved or public embarrassment. Sexual harassment might be obvious, insidious, persistent or an isolated incident. It can also occur in written communication, by phone or through email, not just face-to-face. It is likely to be manifested in:

  • spreading malicious rumours, or insulting someone, unwanted physical contact
  • leering at an employee’s body
  • unwelcome remarks about a person’s age, dress, appearance, or marital status, jokes at personal expense, offensive language, gossip, slander
  • posters, calendars, graffiti, obscene gestures,
  • coercion for sexual favours

Peter Stanway, our BackupHR™ legal expert comments:

The first thing you need is some sort of an anti-bullying and harassment workplace policy, which acknowledges senior management’s commitment to tackling and eradicating sexual harassment. It should set out the type of behaviour that is prohibited, the consequences of such behaviour and the procedure for making a complaint and conducting investigations. A Dignity at Work Policy goes beyond an equal opportunities policy.

Managers must be trained to recognise what is, and is not, acceptable and how to deal with the issues in an impartial and fair way. They need to be aware that dealing with sexual harassment complaints will be emotional and personal for the parties involved, so need to be handled sensitively and non-judgementally.

Any complaints about sexual harassment need to be taken very seriously, as failure to do so can make them much worse. Complaints should be investigated promptly and in a professional manner. There is no need to require a complainant to provide “proof” prior to conducting an investigation. The purpose of the investigation is to gather information and evidence. Even if the alleged harasser is senior and credible, and the complainant is junior and emotional, you must not discount the complaint or refuse to investigate, just because the complaint seems unlikely.

It is prudent to provide support to both individuals while the investigation, and any subsequent disciplinary action is conducted. You should consider temporarily changing working arrangements for the duration of the investigation, particularly if it is against the complainant’s line manager or a close colleague. Suspension of the alleged perpetrator may be necessary. The complainant should be kept informed of the progress of the investigation and its ultimate outcome.

Employees should also receive training on bullying and harassment in the workplace so they are aware that such behaviour is not acceptable. This should include educating employees that ‘workplace banter’ is often a euphemism for bullying and harassment, if it causes offence to others. Tribunals have rejected the notion that a harassment claim can be defended on the basis that sexist remarks were “only banter”. Staff can feel humiliated or offended without it being obvious or apparent to others, and may happen in the workplace without an employer’s knowledge.

Equal Opportunities and Dignity at Work policies must have the support of senior management, and the organisation needs a culture that fully supports victims of sexual harassment. The Weinstein revelations will not go away anytime soon, so sexual harassment will continue to be a high profile issue. The sheer volume of people speaking out about the problem means that a new zero-tolerance attitude towards sexual harassment is emerging.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Pensions Regulator (TPR) is bringing the first pensions auto-enrolment prosecution over allegations that a bus company deliberately avoided enrolling staff into a workplace pension scheme. Stotts Tours (Oldham) Limited has been accused of intentionally not enrolling its 36 employees into a workplace pension. Managing Director Alan Stott has also been individually prosecuted for “consenting or conniving” in the bus company’s offence, or allowing the offence to be committed by neglect.

Peter Stanway, our BackupHR™ legal expert comments:

Auto-enrolment legislation requires employers to provide eligible workers with a qualifying pension scheme, auto-enrol them into the scheme, and make minimum levels of contributions to the workers’ pensions. The requirements have been phased in since 2012; by February 2018, all employers will be covered by the requirement to auto-enrol workers in pension schemes.

Auto-enrolment legislation is enforced by the Pensions Regulator. Its formal powers include issuing compliance notices, conducting inspections and issuing penalty fines to employers. However, TPR can also initiate criminal proceedings against employers that “wilfully fail to comply” with the legislation, as well as directors who are implicated in any failure to comply with the law.

This is the first time that the Pensions Regulator has launched a prosecution for these specific offences, but in August a solicitor and the firm where he is a partner were ordered to pay more than £16,000 in fines and costs for refusing to give them documents which were required as part of a wider investigation. Employers that wilfully fail to comply with key auto-enrolment or re-enrolment duties, or fail to enable staff to opt in to pension membership may be convicted of a crime, and subject to a fine and/or up to two years’ imprisonment.

The TPR has been cracking down on companies and individuals it says have shirked their responsibilities toward their employees’ pensions. In August, it said it would prosecute Dominic Chappell for failing to provide information and documents it requested during its investigation into the sale of BHS. It has also begun carrying out spot checks to ensure employers are complying with their automatic enrolment duties. TPR are warning employers that ignoring the penalties, which they impose could seriously damage a business’ reputation, by virtue of being named and shamed’.
The latest development is to publish details of those who have paid their Escalating Penalty Notice (EPN) but remain non-compliant. They will also publish the details of those who failed to pay their EPN, and as a result have been made subject to a court order.

Despite the publicity to raise awareness there is still a high rate of non-compliance. For various reasons, including ignorance and unwillingness to recognise reality, some employers are still not doing what they should be. TPR has no time for excuses. It said that firms which, for example, found the online system too difficult to use, made a mistake, or had a sick member of staff would not get a free pass.

TPR is using a big stick for employers who are not doing what they should be, and using all the tools at its disposal, because bad employers gain an unfair advantage over their diligent competitors. Employees of smaller employers are not getting what they are entitled to. The message from TPR is clear: If employers do not comply, they will take action.

Actions:

  • If you are not sure about your staging date, find out and take action now
  • If your staging date is still due then start to prepare now
  • Do not encourage or coerce employees to opt out of the pension scheme
  • If you have started auto-enrolment, do an audit to check it is working properly
  • Cooperate fully with the TPR if they investigate

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

In Dudley Metropolitan Borough Council v Willetts, the Employment Appeal Tribunal (EAT) held that voluntary overtime that is normally worked should be included when calculating an employee’s holiday pay.

Peter Stanway, our BackupHR™ legal expert comments:

In recent years, there have been several high-profile cases that have considered how employers should calculate statutory holiday pay for their workers and to what extent employers should take account of variable payments, such as commission and overtime. The extent to which overtime should be included has been particularly problematic, with tribunals drawing distinctions between different types of overtime.

According to EU law workers should take their full holiday entitlement; getting ‘normal remuneration’ while on paid leave, to ensure that workers are not put off taking holidays by receiving less than their normal pay during this time.

Mr Willetts, on behalf of 56 employees who worked for the Council as tradespeople, brought claims for unlawful deduction of wages. The employees were contracted to work 37 hours per week, with many having an additional right to work overtime. The employees also performed additional voluntary duties, such as working out-of-hours standby shifts, attending call-outs and working voluntary overtime, for which they received additional payments. Their earnings for this additional voluntary work could amount to around £6,000 a year on top of their basic salary.

The Employment Tribunal held that the payments were intrinsically linked to the performance of the employees’ duties and that they performed the duties with sufficient regularity for the payments to be considered ‘normal remuneration’.

The EAT dismissed the Council’s appeal. It noted that the ECJ in a previous case had set down the overarching principle that holiday pay should correspond to ‘normal remuneration’ so as not to dissuade workers from taking leave; and that the division of pay into different elements cannot affect a worker’s right in this regard. For a payment to count as ‘normal’, it must have been paid over a sufficient period of time.

The question in every case, irrespective of the label put on the payment, is whether the payment forms part of the worker’s “normal remuneration”. Voluntary overtime that satisfies this test must be included in holiday pay.

Implications

The EAT’s reasoning provides helpful guidance on when voluntary overtime should be included in the calculation of holiday pay:

  • EU law requires that “normal” (and not contractual) remuneration must be maintained in respect of the four week period of annual leave.
  • For a payment to count as “normal” it must have been paid on a regular and/or recurring basis, which is a question of fact and degree in each case.
  • Items that are not usually paid, or are exceptional, are not “normal pay”.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

When Employment Tribunals (then “Industrial Tribunals”) were set up, access to them was free. If you wanted to bring a claim, you sent in a form, the tribunal heard the case, and in due course it told you whether you had won or lost, and if successful, how much your employer would have to pay you. If you represented yourself, the whole process didn’t need to cost you, however, over time using paid  advocacy became far more the norm and this in turn has potentially has increased the cost of making claims.

The most significant change to the Tribunal system came in July 2013 when to bring a tribunal claim you had to pay two fees: one for starting the claim, and a second larger fee for the hearing. Since then Unison have been fighting the system through the courts, unsuccessfully until it went to the Supreme Court which held unanimously that the Fees Order (which led to a 70% reduction in claims) is unlawful and unconstitutional, so will be quashed.

The Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court (where it is very much cheaper to bring a claim for a small sum of money).  Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. The fees effectively prevent access to justice for many people.   It was also relevant that the Order had made a much less significant contribution to tribunal costs than expected, had failed to deter unmeritorious claims and did not appear to have resulted in more ACAS settlements.

Peter Stanway, our BackupHR™ legal expert comments:

The judgment is likely to have both significant short-term and long-term effects. Initially the Employment Tribunals Service will need to do an immediate rewriting of the tribunal rules, and a reprogramming of the online Claim Form system because the Supreme Court made it clear that all fees paid between 2013 and the ruling will have to be refunded by the Lord Chancellor’s Department. This will be difficult as many successful claimants will have had fees ordered to be paid by the Respondent, so there will probably need to be a manual review of all decided cases.

Those people who chose not to bring a claim because of the fee may seek to make a late claim. Tribunals may be amenable to the argument that it was not reasonably practicable to bring a claim, when a Claimant was significantly impeded from doing so by unlawful fees, so it is just and equitable to extend time for bringing a claim.

The Government will have to decide if it is going to abolish the fees regime entirely. Since the Supreme Court primarily criticised the level and structure of fees, rather than the principle – the Government may be tempted to explore a more nuanced system of shifting the cost of the Tribunal system onto litigants and possibly employers. It is probable that they will issue a consultation paper with options for change, but may be reluctant to legislate with such a thin majority.

In the short term there is likely to be a big increase in claims.

Actions

  • If you are worried about a claim arising from recent action you have taken, or some other dispute, get professional advice.
  • In future you should be more cautious, which primarily means properly following your procedures and good practice.
  • Be careful about actions which may appear arbitrary, capricious or discriminatory.
  • If you are thinking of making a claim or advising a friend/relative – do think carefully about whether bringing a claim is the best thing to do. Just because it is now possible to bring a claim without paying a fee, doesn’t mean there are no costs. The emotional costs of bringing a claim are usually high. Many people find it a very distressing and futile experience.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

A group of employees (Sparks and Others) in the Department for Transport (DfT) applied to the High Court for a declaration that the staff handbook was incorporated into their employment contracts. The High Court agreed that they were incorporated, and that the DfT could not vary the terms without agreement from the employees. The DfT appealed the decision to the Court of Appeal in respect of the short-term absence management policy.

The effect of the absence management policy was to restrict disciplinary action for short-term absence to a trigger of 21 days in a 12 month period. If contractual the DfT could not deviate from this without being a breach of contract. For the employees this was an important term of the Handbook as it meant that the changes proposed would trigger the absence management policy and formal sanctions sooner than under their existing procedure.

The Court of Appeal dismissed the DfT’s appeal and gave guidance on whether terms of a staff handbook are incorporated into employee contracts, including:

  • The issue will always depend on the precise terms of the documents;
  • The wording of the documents as a whole;
  • The contractual intention of the documents.

Peter Stanway, our BackupHR™ legal expert comments:

This case highlights the importance of ensuring that your Handbook of Employment Policies, procedures and rules is a separate document to employment contracts. It is also advisable to be clear that the policies and rules are subject to amendment by the employer at any time, in line with business needs. By regularly updating them, you are reinforcing the point that such employment terms can and will be regularly changed.

The Court of Appeal decided that looking at the language of the document, and specifically the attendance policy contained within the Staff Handbook, these were legally enforceable contractual terms rather than just notes of guidance and good practice with no legal force. In other words the relevant paragraphs were to be construed as conferring rights on the employee rather than merely setting out simply good practice which the employer intended to follow. Therefore the new policy of attendance management and specifically over the matter of short term absence triggers, introduced by the employer was not deemed effective to vary the terms of the employment contracts and so was not contractually binding on employees.

The Court were also critical of the fact that the Handbook and Procedures had been changed and there had been various versions created, but not all of the versions had been retained and so were not available for consideration.

Actions:

  1. Check what your contracts and handbook say about the terms;
  2. If you want to make changes to existing contractual terms, ensure that you seek advice before doing so;
  3. Make sure that within your Handbook it is clearly stated that the Employer reserves the right to amend terms when necessary and legitimate to do so;
  4. Even if your Handbook is not deemed to be contractual it is always advisable to undertake a consultation process prior to introducing an updated Handbook with varying terms;
  5. Ensure that you keep copies of earlier versions of Handbooks;
  6. If you are using a contract template you have obtained online or ‘borrowed’, get the documents reviewed now, before you need to rely on them;
  7. You may need to review your policies to ensure that they are up to date with constantly changing employment law requirements.

This decision highlights that each case will turn on its particular facts. You need good professional advice on making changes. Having contacts and handbooks drafted by professionals reduces the risk of ambiguity.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Dr Beatt was employed by Croydon University Hospital NHS Trust as a consultant cardiologist. The working relationships between the doctor and several of his colleagues were strained, and the cardiology department had been described as dysfunctional.

Whilst he was performing an operation, his head nurse, Sister Jones, was suspended and the patient died. The Claimant argued that the head nurse’s absence contributed to the patient’s death. Dr Beatt held her in high regard and it was thought that this influenced his objectivity.

He raised concerns over a lack of medical support, specifically about staffing levels and patient safety in general. The hospital decided the allegations were “entirely without merit and … gratuitous in nature”, and motivated both by his antagonism to the department’s assistant director and his wish to see Sister Jones reinstated. He was duly dismissed for gross misconduct, on the grounds that he had made false accusations of poor patient safety and unfounded accusations against a colleague.

He won his claim of automatic unfair dismissal for making protected disclosures (whistle-blowing) at the Employment Tribunal.

The case went to the Court of Appeal which found in his favour. There was no dispute that the Claimant had made protected disclosures – the only question for the court was whether the Tribunal was right or in any event entitled, to find that that was the principal reason why he was dismissed. It was irrelevant if the Hospital thought they were not protected disclosures, or ones made not in good faith. Deciding if a disclosure is protected is an objective assessment for the employment tribunal as to whether the statutory conditions for protection are met. The Court found that in whistleblowing cases, there were two questions:

  • Is the making of the disclosure the reason for the dismissal?
  • Is the disclosure in question protected within the meaning set out in the Employment Rights Act (ERA)?

The Court commented that it would enormously reduce the scope of the protection for whistle blowers if liability could only arise where the employer itself believed that the disclosures were protected.

Peter Stanway, our BackupHR™ legal expert comments:

Dismissing a whistle blower is always going to be a high risk strategy, so this Judgment is unsurprising as, for policy reasons, a high level of protection is granted to whistle-blowers. As Underhill LJ said: “It is all too easy for an employer to allow its view of a whistle blower as a difficult colleague or an awkward personality (as whistle blowers sometimes are) to cloud its judgement.”

The Judge, who has a strong background in employment law, went on to say “if there is a moral from this sad story” it’s that employers should proceed to the dismissal of a whistle blower only where they are as confident, as they reasonably can be, that the disclosures in question are not protected or, that a distinction can clearly be made between the fact of the disclosures, and the manner in which they are made.

Action Points for Employers:

  • Be careful to consider whether any disclosures are protected or not. A disclosure will be protected if it meets the statutory conditions and this is an objective test rather than a subjective one. Try to be dispassionate.
  • You should not allow your view of a whistle blower as a difficult colleague or an awkward personality to cloud your judgment about whether the disclosures in question do in fact have a reasonable basis. This will be judged by the tribunal.
  • You should therefore only dismiss if you are confident that the disclosures in question are not protected, or where a distinction can clearly be made between the disclosures themselves, and the manner in which they are made.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

The Government Legal Service (GLS) was recruiting lawyers in what the EAT called “a fiendishly competitive recruitment process”. The process included a multiple choice Situational Judgement Test (SJT). Ms. Brookes was required to sit the SJT, consisting of right or wrong answers to multiple choice questions, meaning marking can be done by a computer without human intervention or judgment. She asked the GLS to make adjustments on the ground of her Asperger’s Syndrome. She was informed that an alternative test format was not available (although time allowances were). She completed the SJT and failed narrowly.

She claimed disability discrimination due to her Asperger’s, as she was unlawfully disadvantaged by the multiple choice method of testing, and that the Respondent should have granted her request to be allowed to answer the questions in the SJT in the form of short narrative written answers.

An employment tribunal found that the GLS:

  • had indirectly discriminated against the Claimant
  • had failed to comply with the duty to make reasonable adjustments and
  • had treated her unfavourably because of something arising in consequence of her disability

Having heard expert medical evidence, it concluded that the PCP generally placed people who had Aspergers syndrome, at a particular disadvantage compared with those who did not have it. It found that she was put at that disadvantage, especially since her Asperger’s causes difficulties in imaginative reasoning in hypothetical scenarios. The Tribunal ordered the Respondent to pay compensation and made a recommendation that they issue a written apology to the Claimant, and review its procedures in relation to disabled people applying for employment.

The EAT ruled that the employment tribunal was entitled to conclude the provision, criterion or practice (PCP) placed Brookes at a particular disadvantage, because she has Asperger’s Syndrome. The EAT also agreed that the requirement to take the SJT in its unaltered form, amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim, for the reasons found in respect of indirect discrimination. Throughout the case, Ms Brookes had not asserted that the entire process should be changed dramatically and did not dispute what the SJT sought to measure – the ability of candidates’ decision-making powers. She merely alleged that small changes could be made to ensure a fairer process for all applicants.

Peter Stanway, our BackupHR™ legal expert comments:

This case is important because similar tests are widespread methods of recruitment across all sectors consequently certain candidates may be disadvantaged – such as those with dyslexia or autism (aspergers being on the autistic spectrum). It highlights the importance of considering reasonable adjustments for disabled candidates at all points in the recruitment process including testing.

  • Employers should ensure that on application, candidates are asked whether they require any reasonable adjustments. If they indicate that they do, then you should enquire further as to what would help them.
  • If you use any form of testing method, then you should consider whether an alternative should be deployed in the event that the candidate is unable to complete such tests, exactly as you would normally require. This does not necessarily make that candidate unsuitable for that role.
  • If you are unable to make reasonable adjustments, your reasons must be justifiable e.g. disproportionately too costly and properly documented so that your decisions can stand up to scrutiny, if challenged.
  • Ensure disabled candidates are not disadvantaged to the extent that they are unsuccessful in their application, purely because their disability did not allow them to perform as well as a non disabled person.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.