June Legal Roundup

Psychometric testing challenge by an Asperger’s job candidate, NHS whistleblowing protection extended, Lidl supermarket has collective bargaining imposed on a regional distribution centre, and the Supreme Court decides on “a day’s pay”

Psychometric testing

Organisations may need to consider how psychometric testing is used in recruitment, following the successful claim of a lawyer with Asperber’s syndrome applying to join the government’s legal service. She was required to sit a ‘situational judgment test’ which was marked automatically, as it was considered to have objectively ‘right or wrong’ answers. Brookes’ request to provide short narrative answers to the questions, instead of ticking boxes, was refused and she subsequently failed to reach the prescribed score by two points out of a possible 22.

When Government Legal Service v Brookes was heard by an employment tribunal, this was found to be indirect disability discrimination and failure to make reasonable adjustments. The tribunal recommended that the employer reviewed its recruitment procedures. On appeal, the EAT confirmed the tribunal was entitled to find the test disadvantaged Brookes and reject the employer’s argument that it was the only way to test the decision-making ability of the thousands of applicants.

This decision, coupled with the recent Supreme Court decision in the Essop case, has exposed the use of assessment testing in recruitment and promotion processes to scrutiny, suggesting that while employers could still use such tools to assess particular skills, the method of testing may need to be flexible from a disability discrimination point of view.

Whistleblowing

The Court of Appeal has decided that a whistleblower may have two employers when claiming protection under the law. The case, Day v Health Education England, concerned a trainee doctor who raised concerns about staffing issues and patient safety, and subsequently claimed he had been subjected to detrimental treatment from the national training organisation as a result. The question was whether he could claim against the training organisation when he was actually employed by an NHS trust.

An employment tribunal and the EAT struck the claim out as not falling within the remit of whistleblowing laws and therefore having ‘no reasonable prospect of success’. But the Court of Appeal decided that the extended definition of ‘worker’ in the Employment Rights Act 1996 allowed the doctor to claim against both employers because they both determined his contract terms.

The government recently closed a consultation on some new regulations prohibiting discrimination against NHS job applicants who have previously ‘blown the whistle’, the aim being to “help embed in NHS bodies a culture that supports workers to raise concerns and welcomes new workers who have done so in the past.” The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations are currently in draft form.

Trade unions

Food retailer Lidl has lost its case in the Court of Appeal against the GMB trade union gaining bargaining rights to represent 273 warehouse staff at the company’s regional distribution centre in Bridgend. The employer argued in the case Lidl v Central Arbitration Committee that the bargaining unit was too small to be “compatible with effective management” and was “not only a statistically insignificant subgroup of workers, but an artificial one”.

But the Central Arbitration Committee (CAC) decided the company’s regional management teams and the scope of its software could cope with regional differences, and allowed the statutory recognition claim to succeed. The Court of Appeal endorsed the CAC’s “expert judgment” and dismissed the employer’s appeal. Lawyers interpret the decision to mean that challenging CAC decisions of appropriate bargaining units has little prospect of success.

In another recent case, Hartley v King Edward VI College, the Supreme Court decided an employer was not entitled to deduct 1/260th from teachers’ pay for a one day strike. Although there are 260 working days a year for those on a five-day week, which would suggest one day being equal to 1/260th, the correct amount to deduct was 1/365th of annual salary, unless agreed otherwise. 

The case raises questions about calculating a day’s pay for other purposes. While the 1/260th rule aligns with the UK’s working time regulations, in the absence of an agreement to the contrary, is it safe for 1/365th to be applied to pay in lieu of accrued but untaken holiday on termination of employment? Perhaps this could be the case for permanent employees who work outside core contractual hours when performing their job role, but employers should always go by what the employment contract states.

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