Insights Worked Up, your monthly employment & immigration law lowdown – July 2024

Welcome to this month’s edition of Worked Up 2024 – your one-stop shop for the latest updates in employment and immigration law.

In this month’s update, we examine the obligation for employers to consider redeployment in cases of long-term sickness absence, consider whether an employer can be deemed to be aware of a former employee’s disability before a formal medical diagnosis has been made, and summarise the immigration policies outlined in the manifestos of the Liberal Democrats, Labour, and Conservatives.

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Horizon scanning

If you want to stay ahead of the curve and keep updated on the key employment and immigration changes (including proposed legislation, consultations and case law) on the horizon over the next 24 months, check out our “What’s on the horizon” tracker.

Mr Ian Bugden v The Royal Mail Group Ltd [2024] EAT 80

Facts: Mr Bugden worked as a postal worker for the Royal Mail Group (“RMG”) from 1994 to 2019. From 2015 onwards, Mr Bugden had a string of health-related absences (297 days over four years). Some of these absences related to his medical conditions, and the parties agreed that he was disabled by reason of his anxiety, depression, migraines, musculoskeletal disorders and bladder issues. Despite RMG offering to reduce his working hours, which Mr Bugden declined for financial reasons, he was dismissed following a disciplinary procedure for not meeting attendance requirements and on the basis that RMG had lost confidence that his attendance would improve. Mr Bugden subsequently brought claims of unfair dismissal and disability discrimination, specifically accusing RMG of not making reasonable adjustments.

Judgment: In first instance, the Employment Tribunal ruled against Mr Bugden in respect of both his unfair dismissal and disability discrimination claims. Mr Bugden proceeded to appeal on two points, arguing that the Tribunal should have considered: (1) in respect of making reasonable adjustments, if transferring him to another role could have been a reasonable adjustment; and (2) in respect of the fairness of the dismissal, if there was potential for him to move to another role then this should have been evaluated in the context of the fairness of the dismissal. The EAT dismissed the first part of his appeal on the basis that the potential adjustment of moving Mr Bugden to a different role was not clearly presented in the original tribunal materials. However, Mr Bugden had more success with the second part of his appeal as the EAT agreed that the Tribunal should have considered whether RMG had considered redeployment to another role before moving to dismissal. The EAT held that this is a crucial question in cases of ill-health absences and forms part of determining whether the dismissal was within the range of reasonable responses by a reasonable employer.

Takeaway: In an employment landscape increasingly marked by long-term employee sickness absences, this case highlights the necessity of thoroughly evaluating all potential adjustments before making a termination decision. These adjustments might include redeployment options, which can be suitable for employees whose health issues are caused or worsened by their current work arrangements. However, the failure to consider redeployment does not always constitute a breach of an employer’s obligation to make reasonable adjustments and is very much dependent on the specific facts of the employee’s health condition and how their role impacts their condition.

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Mr R Godfrey v Natwest Market Plc [2024] EAT 81

Facts: Mr Godfrey was employed by NatWest from 2006 until 2011. He subsequently applied for several vacancies at Natwest between 2017 and 2019, but was unsuccessful on each occasion. He was formerly diagnosed with Asperger’s syndrome in 2018, although he contended that those who had worked with him previously at Natwest would have been fully aware of his difficulties with communication and social interaction. Mr Godfrey brought claims of direct disability discrimination and discrimination arising from a disability in relation to what he alleged had been NatWest’s refusal to consider him for various roles.

Judgment: The Tribunal found that NatWest did not have actual or constructive knowledge of Mr Godfrey’s disability during the relevant period and that, even if NatWest had sought to investigate, Mr Godfrey would not have cooperated in any event. He appealed on grounds that the Tribunal had failed to apply the correct legal test, namely that they had focused on whether NatWest could have been reasonably expected to know that Mr Godfrey had an autistic spectrum condition, rather than whether NatWest had knowledge of a mental impairment with a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

The Employment Appeal Tribunal upheld the decision that NatWest did not have actual knowledge of Mr Godfrey’s disability but found that its conclusion that NatWest did not have constructive knowledge was unsafe. The Tribunal had asked itself the wrong question by focusing on whether NatWest could reasonably have been expected to know, after reasonable enquiry, that Mr Godfrey had an autistic spectrum disorder rather than a mental impairment generally. Nevertheless, as the Tribunal had gone on to find that Mr Godfrey would have refused an investigation at the time, the Tribunal had been entitled to conclude that NatWest did not have constructive knowledge of Mr Godfrey’s disability.

Takeaway: This case highlights that employers should consider whether an employee has a disability even when one has not been formally disclosed or diagnosed. If an employer has failed to make reasonable enquiries after becoming aware of relevant facts, the Tribunal may consider that they had constructive knowledge of a person’s disability. This is particularly important in the context of mental impairments, which are not always as obvious to spot and may manifest themselves in a variety of ways. This emphasises the often difficult balancing act required in many employment relations cases of following good practice and making reasonable enquiries regarding an employee’s health, with the benefit that can sometimes be obtained by not having knowledge of health conditions.

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All the political parties have now released their manifestos ahead of the general election on 4 July 2024. We’ve sent out briefings summarising the main employment and immigration proposals, and provided our insights on how these could impact employers and the media and technology sectors generally. If you haven’t had a chance to read them, you can find them here – Conservatives, Labour and Liberal Democrats.

The key immigration policies for the Liberal Democrats, Conservatives and Labour are as follows:

The Conservative Party

The Conservative Party’s immigration policies are focused on two main areas: controlling ‘legal’ migration and stopping ‘illegal’ migration.

For ‘legal’ migration, the Conservatives propose the following measures:

  • Raising all visa fees and automatically raising salary thresholds for the Skilled Worker route in line with inflation. The existing high thresholds have already substantially impacted the number of Skilled Worker applications and this trend is expected to continue if introduced;
  • Requiring health checks for migrants before travel and requiring individuals to buy health insurance if they are deemed to be a likely burden on the NHS; and
  • Introducing a binding legal cap on migration numbers, which cannot be breached and will be subject to an annual parliamentary vote.

These policies reflect the Conservative Party’s long-term goal to reduce net legal migration. If these plans are implemented, employers must consider many more visa entry routes, which is likely to make applications harder and more competitive (particularly for industries that engage international talent).

The Labour Party

The Labour Party’s immigration policies certainly echo some Conservative policies, for example, pledging to reduce net migration, eliminate the asylum backlog, and end the use of hotels for asylum seekers awaiting decisions. However, Labour aims to distinguish its approach with several key proposals. From a legal immigration perspective, these include:

  • aligning immigration and skills policies, for example, barring employers who violate immigration or employment laws from hiring foreign workers, strengthening the Migration Advisory Committee and enhancing collaboration with UK skills bodies; and
  • committing to implementing workforce and training plans to reduce reliance on overseas workers in critical health, social care, and construction sectors. This initiative aims to develop domestic talent and address skills shortages within the UK.

In summary, Labour’s legal immigration policies focus primarily on fostering domestic skill development.

The Liberal Democrats

The Lib Dems are highly critical of the current state of the immigration system, which they argue has been ‘broken by the Conservatives’. They propose a comprehensive set of reforms to reverse several key Conservative policies. These key proposals include attracting young talent and addressing health workforce shortages by:

  • exempting NHS and care staff from the Immigration Skills Charge;
  • allowing care workers to bring their families to the UK; and
  • expanding the Youth Mobility Scheme by raising the age limit, abolishing application fees, and extending the permission from two years to three.

Their manifesto also includes the following proposals in respect of legal migration:

  • automatically granting Settled Status to individuals with Pre-Settled Status to ensure continuity and security for EU nationals already in the UK;
  • replacing the new immigration salary thresholds with a more flexible and sector-focused merit-based system for work visas; and
  • moving work and student route policymaking out of the Home Office, aiming for more specialised and efficient management.

Overall, the Liberal Democrats’ proposals focus on creating an efficient and transparent immigration system that welcomes newcomers, supports public services, and promotes family unity.

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