Before hiring staff, we check their social media profiles to ‘vet’ what they’re like. We recently saw an image on Facebook of a prospective employee smoking a joint at a party seven years ago. If we denied them employment at our firm based on said picture, would we be breaking any law?
Employers are increasingly looking to social media as part of their recruitment practices. However, social media can provide distorted information, which in this case is rather dated and does not provide any context to the image you have seen. It would be unfair for you to rely solely on what you have seen on the Facebook page of this prospective employee. No doubt if you were to now interview this individual you would also have unconscious bias affecting your decision to proceed or not due to what you have seen. Unconscious bias refers to a bias that we are unaware of, and which happens outside of our control. It happens automatically and is triggered by our brain making snap assessments of people and situations.
If you decided not to recruit because of the image, then simply based on what we know from it, it is unlikely that any discrimination laws would be broken as the image itself does not suggest that the candidate has a protected characteristic that would be covered under the Equality Act. If, however, the candidate was smoking the joint for medicinal purposes you may well then be subject to legal challenge for disability discrimination in making a decision not to recruit on the basis of the joint.
There is also the issue of violating privacy by looking at the Facebook page. If you have viewed the page as a public profile then privacy laws are also unlikely to have been breached given the profile appears to be open for public viewing.
If, though, you have requested
log-in details or otherwise accessed a private account, then there are likely to be violations of privacy laws.
A member of staff, who works eight-hour shifts in our electronics factory, has been diagnosed with narcolepsy. We’re concerned that he is at risk of losing concentration on the job, jeopardising both his work and wellbeing. Would we be able to put him on a different, shorter shift pattern to compensate?
Your question specifically relates to placing the individual on specific shifts to accommodate his condition.
You will first need to consider if his condition could amount to a disability as disability is a protected characteristic under the Equality Act 2010 and, as such, there is an obligation to make reasonable adjustments in the event that the employee is disadvantaged in some way.
Disability is where an individual has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
There are four key questions to ask in assessing the condition: Is there a physical or mental impairment? Does the impairment have an adverse effect on the ability to carry out day-to-day activities? Is the effect substantial? And is the effect long-term?
You will need to seek information on the employee’s condition from a registered medical practitioner to decide if this satisfies the definition of disability. Assuming it is a disability then the Equality Act 2010 places a positive obligation on you as the employer to put in place reasonable adjustments in circumstances where that employee is at a substantial disadvantage to his co-workers due to his disability.
The adjustments you have proposed relate to changing shift patterns. You would need a medical practitioner to advise you what adjustments would be reasonable in connection with the condition the individual suffers to ensure you are compliant with the legislation.
If you have the support of a medical practitioner in relation to the adjustments made then you will be able to justify your actions if the employee challenged the adjustments. Once the medical practitioner has advised you of the adjustments that may be required you would then need to discuss these with the employee and implement the same, with their agreement.
Following a serious car accident two years ago, I have only recently returned to work. Movement in my left arm is impaired, but I seem to have been specifically put on very boring, mundane tasks at work since my return. It feels like my employers are discriminating against me and demeaning my role. How can I go about proving this?
I note your injuries happened two years ago. As they have lasted more than 12 months it sounds as though they would qualify as a disability under the Equality Act 2010. It may be that your employer has taken it upon themselves to change your role to address the limitations of your injuries when in fact they should obtain medical evidence and then discuss that with you rather than imposing the alternative tasks on you.
Under the Act it is unlawful to discriminate by treating one person less favourably than any others because of a disability. Your claim would be for direct discrimination in that you are being treated less favourably than others.
You will need to show a real or hypothetical comparator against whom you compare yourself - someone whose circumstances are not materially different to your own, but who doesn’t have your disability. You may also bring a claim for discrimination because of something arising in consequence of your disability.
You should raise a formal grievance. If matters cannot be resolved through the grievance route then it is open to you to refer the matter to an employment tribunal. You will, however, have just under three months from the last act of discrimination to refer the matter to tribunal.
Within this time period you will need to contact ACAS for early conciliation. ACAS will speak with your employer and see if matters can be resolved.
If not, after a month, ACAS will issue you with an Early Conciliation certificate number for you to be able to use to issue proceedings. You will then need to complete a claim form and lodge this with the tribunal. The burden of proof will first be on you to show prima facie discrimination and then on the employer to rebut the same and explain their actions.
There is no objective justification defence for direct discrimination. You can use the medical letter to show your injuries are a disability and the adjustments that are recommended, if they are different to those your employer has made. You can also provide a witness statement as circumstantial evidence for
the tribunal to consider along with that of others at work that are prepared to support you.
BY SARAH PERRY, MANAGING PARTNER, WRIGHT HASSALL LLP www.wrighthassall.co.uk
