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There are some phrases which make an employment lawyer’s heart sink, and pride of place amongst them undoubtedly goes to “but it was just office banter”. Usually a signal that something offensive has indeed gone on within the workplace, it might be thought that short shrift is likely to be given to such a defence by the employment tribunal. In fact, background context is key, and a culture of “banter” can, in the right circumstances, help to explain potentially discriminatory conduct and protect an employer from a discrimination claim. Such was the outcome at both first-instance and appeal to HHJ Stacey in Evans v Xactly Corporation Ltd UKEAT/0128/18.
In this case, the claimant was a sales representative for the respondent. He worked in an office environment in which there was culture of banter. He suffered from type 1 diabetes and hyperthyroidism. He also had some links to the travelling community about which only one colleague was aware. He began work in January 2016 but was part of a sales team which collectively failed to hit their targets. In December 2016 he was dismissed for poor performance.
Although the claimant did not have the length of service to claim for unfair dismissal, he did bring claims relating to discrimination on the basis of disability and/or race, including claims for discrimination arising from disability, direct discrimination, harassment, and victimisation. These claims arose from various occasions during his employment during which he was called a “salad dodger”, “fat Yoda”, “Gimli”, and “fat ginger pikey” by his colleagues. He alleged that he was disciplined and eventually dismissed for raising such treatment as an issue.
The tribunal dealt simply with the claims for discrimination, as while the claimant was indeed disabled as a result of his type 1 diabetes, he had failed to adduce evidence that this and/or his hyperthyroidism had a real impact on his weight. Therefore, any claims which sought to rely on insulting comments made about his weight could not arise from or be connected to his disability and failed.
This left the claimant’s allegations of race-related harassment, however, which is covered by section 26 of the Equality Act 2010. In order to succeed in such a claim, an individual must show that they have been subjected to unwanted conduct relating to a protected characteristic, and that the unwanted conduct had the purpose or effect of violating the victim’s dignity; or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to them.
In considering this test, the tribunal first determined that the respondent’s office culture was one where teasing and banter was common. Indeed, the claimant himself would often reply in kind, referring to a close colleague as a “fat paddy” and a female colleague as a “pudding”. This behaviour appeared to be accepted and treated as normal within the office, and in a memorable turn of phrase, the employment tribunal described it as “indiscriminatingly inappropriate”.
In fact, the only person who had been reprimanded for their behaviour in this context was the claimant, who had been warned for trying to hug and cuddle the co-worker whom he had called a “pudding”. It was also considered relevant that the claimant only reported the comments in November 2016, after the performance process had begun. In those circumstances, the first instance tribunal held that harassment within the meaning of section 26 was not established.
On appeal, the EAT confirmed that the first-instance tribunal was best placed to make findings of fact about the context and office culture, and was then fully entitled to conclude that the comments complained of did not amount to harassment as defined within section 26. Comments such as “fat ginger pikey” were plainly “derogatory, demeaning, unpleasant and potentially discriminatory”, but that did not mean that the test for harassment was made out. In that connection, both tribunals cited the EAT judgment in Richmond Pharmacology v Dhaliwal UKEAT/0458/08, in which Underhill P pointed out that “dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.”
When applying the statutory wording of section 26, the EAT therefore confirmed the following:
The comments were not unwanted since the claimant was such an active participant in the culture of banter.
They did not have the purpose of violating the claimant’s dignity or creating an intimidating environment for him.
Nor did they have the effect of violating the claimant’s dignity or creating an intimidating environment for him, as he was not offended.
In any event it would not have been reasonable for him to have considered his dignity was violated or the environment was intimidating given the particular circumstances and all the context and material facts relevant to the claim.
Of course, employers should not feel that such an office culture is acceptable or non-problematic, or that this decision gives the green light to offensive behaviour within the workplace. The factual background of this matter, with only very tenuous potential links made to protected characteristics and clear evidence that the claimant was a willing participant in the behaviour, will certainly not always be duplicated when the “banter defence” is deployed. It is still, by far, the safest route for employers to ensure that their workplace environment is professional, respectful and free of offensive comments, however well intended.
Internal investigations are increasingly being conducted by companies not only on regulatory grounds but also in response to employment issues such as whistleblowing and discrimination allegations. In SFO v ENRC  EWCA Civ 2006, the Court of Appeal has significantly widened the scope of legal professional privilege in the context of an internal company investigation. It will now be easier for the employer to assert privilege over employees’ witness statements and other documents generated in an investigation.
Privilege: legal background
The principles of legal privilege were addressed in Three Rivers DC v Bank of England (No 6)  UKHL 48. In Three Rivers v Bank of England (No 5) EWCA Civ 474, the Court of Appeal considered the scope of legal advice privilege and decided that only communications between client and lawyer were privileged. In the corporate context, only employees tasked with seeking and receiving such advice could be considered to be the “client”; communications between lawyers and other employees would not attract privilege.
This has had two practical consequences of particular importance to employment advisers:
It has given rise to the “client group” model often used in investigations, whereby a small team is set up exclusively to instruct, communicate and deal with the lawyers.
It has meant that investigative interviews with employees outside the group would not attract privilege.
The House of Lords held in Three Rivers (No 6) that litigation privilege would only protect communications between parties or their lawyers and third parties where:
The litigation was proceeding or in contemplation.
The communications were for the sole or dominant purpose of that litigation.
The litigation is adversarial, not investigative or inquisitorial.
SFO v ENRC: the facts
In December 2010, ENRC received from a whistleblower allegations of corruption and fraud within a wholly owned subsidiary in Kazakhstan. By March 2011, ENRC’s general counsel formed the view that it was “on the SFO’s radar” and should upgrade its dawn raid procedures. ENRC’s audit committee instructed solicitors to investigate the allegations, and in April 2011, the solicitors warned that adversarial proceedings could occur from the internal investigation. In May 2011, ENRC engaged forensic accountants to undertake a books and records review to assess its exposure to liability under bribery legislation.
In August 2011, the Serious Fraud Office (SFO) contacted ENRC in relation to the whistleblower’s allegations which had, by this time, been reported in the media. The SFO referred to its self-reporting guidelines, but noted that it was not at that stage carrying out a criminal investigation. Various meetings took place, at which the SFO gave no assurance that it would not prosecute. ENRC in turn gave assurances that it was investigating, but eventually the SFO lost patience and began proceedings in 2013.
During the solicitors’ investigations, statements were compiled from the evidence given by employees and ex-employees. Documents were generated by the review of books and records, and reports prepared by the forensic accountants. ENRC sought to resist disclosure of these documents, including witness statements, on the ground of privilege.
Judgment of Andrews J at first instance
Andrews J found that none of the documents were covered by litigation privilege, as at the time they were created, litigation between ENRC and the SFO was a mere possibility rather than a likelihood. Further, the judge held that the documents had not been created for the dominant purpose of litigation, but rather to avoid it.
The Court of Appeal
In the unanimous judgment of the court (Sir Brian Leveson, Sir Geoffrey Vos and McCombe LJ), the appeal was allowed and the claim to litigation privilege was upheld.
The Court of Appeal analysed the requirement that proceedings be in reasonable contemplation by interrogating the facts in some detail, noting the dates set out above in particular. The court considered that “the whole sub-text of the relationship between ENRC and the SFO was the possibility, if not the likelihood, of prosecution if the self-reporting process did not result in a civil settlement.” (Paragraph 93.)
While noting that it was not conclusive, the court said that it was wrong of Andrews J to have disregarded the view taken by ENRC’s solicitors and their “oft-repeated advice” that there was a serious risk of prosecution and/or regulatory intervention (paragraphs 93 and 95). When the SFO specifically makes clear to the company the prospect of its criminal prosecution and legal advisers are engaged to deal with that, the court considered there is a clear ground for contending that criminal prosecution is in reasonable contemplation (paragraph 96).
The fact that a party anticipating possible prosecution will need to make further investigations before it can say that proceedings are likely does not in itself prevent proceedings being in reasonable contemplation (paragraph 98). The court was sensitive to the realities faced by corporate bodies, in particular large ones: “An individual suspected of a crime will, of course, know whether he has committed it. An international corporation will be in a different position, but the fact that there is uncertainty does not mean that, in colloquial terms, the writing may not be clearly written on the wall.”
For these reasons, the court found that Andrews J was wrong to suggest a general principle that litigation privilege cannot attach until either a defendant knows the full details of what is likely to be unearthed or a decision to prosecute has been taken. The fact that a formal investigation has not commenced will be one part of the factual matrix but will not necessarily be determinative (paragraph 100).
The court accordingly found that at the time the documents were created, proceedings were reasonably in contemplation in April 2011 and certainly by August 2011. The court then turned to consider whether the documents were created for the dominant purpose of litigation.
The court reminded itself that the exercise of determining dominant purpose is one of fact and the court must take a realistic and commercial view of the facts. Moreover, there may be a duality of purpose. The key question in the ENRC appeal was whether it would be reasonable to regard ENRC’s dominant purpose as being to investigate the facts to see what had happened and then deal with compliance and governance, or to defend the proceedings in contemplation (paragraph 104).
Noting that regulatory and compliance regimes provide a “stick” to enforce legal standards, the court thought that an investigation for “compliance” and “governance” purposes could, where there is a clear threat of criminal investigation, be “brought into the zone where the dominant purpose may be to prevent or deal with litigation.” (Paragraph 109.). The need to investigate allegations of fraud and corruption was a subset of the dominant purpose of defending contemplated proceedings.
The court said that it was in the public interest that companies should be prepared to investigate allegations from whistleblowers or journalists, prior to going to a prosecutor such as the SFO, without losing the benefit of privilege for the work product and the consequences of their investigation (paragraph 116). Otherwise the temptation may be to not investigate at all.
The fact that the solicitors prepare a document with the ultimate intention of showing it to the other side does not deprive the preparatory legal work of litigation privilege. Thus iterations of a response to a claim or discussions of a letter would nevertheless attract privilege (paragraph 102). Even if litigation was not the dominant purpose of the investigation at its very inception, the court accepted as sufficient that the evidence showed that it swiftly became the dominant purpose (paragraph 111).
Not only were proceedings in reasonable contemplation, but the first instance judge ought to have held that the documents were brought into existence for the dominant purpose of resisting or avoiding those or some other proceedings (emphasis added) (paragraph 113).
Legal advice privilege
The court held that legal advice privilege was not the central issue in the case but still addressed the “forceful” arguments made, including by the Law Society as intervener. It began its discussion of this issue by identifying what Three Rivers (No 5) had actually decided: that communications between an employee of a company and its lawyers could not attract legal advice privilege unless that employee was tasked with seeking and receiving such advice on behalf of the client (paragraph 123).
It noted that the 19th century authorities were decided when the concept of privilege was in its infancy, and further that most of these authorities concerned small businesses or individual litigants. In a modern multinational corporation, the information on which legal advice is sought is unlikely to be in the hands of the main board or the client group. If the multinational corporation cannot claim privilege over communications between its lawyers and employees outside the client group, it will be disadvantaged as compared to smaller companies or individuals. The court considered that this anomaly could not be justified and that basis of privilege should be applicable to all clients, whatever their size or reach (paragraph 127). Moreover, English law was out of step with other common law jurisdictions, which was undesirable given the international context in which business operates (paragraph 129).
The court was clear that, it if had been open to it to depart from the House of Lords decision in Three Rivers (No 6), it would have done. Although it remains good law until overturned by the Supreme Court, a clear signal has been given of the judicial receptiveness to challenges to the narrow definition of “client” for the purposes of legal advice privilege.
The SFO has now confirmed that it will not be appealing to the Supreme Court. Accordingly Three Rivers (No 6) remains the authoritative statement of the law on legal advice privilege.
While the test of litigation privilege has been significantly widened by the Court of Appeal’s decision, any employer hoping to assert privilege will need to consider their position carefully:
Each case turns on its own facts. The court will judge claims to privilege in the light of the facts as a whole. Companies must therefore take bespoke advice and regularly update the advice as matters progress.
The views formed by the company’s legal advisers should be taken into account by the court, though they will not be conclusive.
It is optimal to consider privilege at the outset of an investigation, and then maintain a clear documentary trail to assist in supporting assertions of privilege.
The fact that the company needs to conduct further enquiries before it can say with certainty that litigation will follow does not prevent proceedings being in reasonable contemplation.
It may be arguable that privilege applies to documents even though the litigation was not in contemplation until a short time after their creation.
In relation to the dominant purpose test, privilege will extend to documents for the purpose of avoiding proceedings as well as actively litigating those proceedings.
Privilege may exist over documents that are intended to be shown to the other side including for the purpose of settlement.
There are real difficulties for everyone involved (including the tribunal) in dealing with diffuse claims of discrimination, which indiscriminately allege various different types of discrimination, harassment and victimisation, and take a scatter gun approach to the facts underlying such claims. Such difficulties led the Court of Appeal to say that “Attempts must be made by all concerned to keep discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations.” (Hendricks v Commissioner of Police  IRLR 96, Mummery LJ.)
As we will see, that initial comment led to some employment judges taking increasingly drastic (and in some cases draconian) case management decisions. The EAT’s decision in Tarn v Hughes UKEAT/0064/18DM has made such interventions much less likely. This blog considers what has happened since Hendricks, the impact of Tarn, and what respondents can do now to try and limit unwieldy discrimination claims.
HSBC v Gillespie
The theme of keeping discrimination proceedings within reasonable bounds was picked up by Underhill J in HSBC v Gillespie  IRLR 209. He noted that, while the tribunal has no power to prevent a claimant prosecuting a properly arguable claim, that does not mean that all of the allegations have to be heard at one hearing. It is perfectly proper for an employment judge to discuss with the parties at a case management preliminary hearing whether certain claims could be heard first (with the balance stayed, theoretically to be determined at a subsequent hearing, but in the more or less confident expectation that such subsequent hearing is unlikely to be necessary once the key allegations have been determined).
Underhill J went on to say that, in principle, even in the absence of agreement from the parties, a tribunal has the power to hive off claims which it regards as secondary or repetitive or otherwise unnecessary, to be dealt with at a subsequent hearing. However, he included some strong words of caution, noting that there may be considerable factual overlap between different allegations of discrimination and that “claimants may be able legitimately to argue that the cumulative effect of a large number of claims has an evidential value which would be unfairly weakened if they were separated.” He therefore stressed that a direction hiving off claims “should only be followed after most careful consideration and where the advantages of doing so are clear.”
What happened after Gillespie?
In my experience, in the years since 2011 a number of employment judges, purporting to rely on Gillespie, became overly fond of requiring claimants to cut down their claims of discrimination, without paying any real regard to Underhill J’s words of warning, or to the artificiality of hiving off claims. I have seen examples where the rulings seem to result in real injustice: it could be particularly difficult for litigants in person to identify what their best claims actually were. Even where both parties were represented, the approach could create real issues. By way of example, some years ago I acted for a claimant who was bringing sex discrimination and victimisation claims. There was an agreed list of issues which both parties were happy with. Notwithstanding that, during a telephone preliminary hearing an employment judge determined that my client (who was not on the call) had to choose her ten best and most recent allegations, and that the remainder would be hived off. This was in the face of strong objection from me. The employment judge went further than that, and held that my client was prevented even from referring to evidential matters which formed the subject of the claims in her claim form that occurred prior to a specified date. No reasons were given for the date decided on, other than that it was “in accordance with the overriding objective”. The effect of that ruling was that my client was prevented even from giving evidence about the circumstances in which she did things which the employer accepted were protected acts, or the manner in which the employer reacted to her protected acts. That would seriously and unfairly have prejudiced her victimisation claims. An appeal to the EAT was listed for a full hearing, but the case settled prior to that hearing. That was far from an isolated example of the sort of drastic case management decisions that I have seen in the years since 2011.
What the EAT decided in Tarn
Both sides were professionally represented in Tarn. There was an agreed list of issues containing 21 acts of alleged direct sex/pregnancy discrimination, 19 acts of alleged harassment and six acts of alleged discrimination (with certain other matters said to be relied on by way of background). The respondent did not raise any concerns with the number of allegations, but at a telephone preliminary hearing an employment judge ordered that the claimant identify “the most recent and serious ten (maximum) events relied upon”. The order in Tarn did not prevent the claimant from relying on the other matters by way of background.
HHJ Eady QC allowed the appeal against the tribunal’s ruling. Holding that the tribunal did have power to direct that only a sample of claims would be heard at a first hearing, she said that it is not a course that should normally be adopted, for three key reasons:
It is something that can only be done “where it is clear this would not endanger the just determination of the case”. This is likely to be difficult for the tribunal to assess at a preliminary stage.
In many discrimination cases it is necessary to consider the entire picture before any conclusion can be drawn as to whether or not there has been unlawful discrimination in respect of any particular allegation. Hiving off claims prevents the proper consideration that is required in what is a highly fact sensitive arena.
The separate determination of selected allegations or issues may not actually be proportionate. If all of the same evidence is going to have to be canvassed as part of the background, hiving off claims may not avoid delay or save expense.
It is to be hoped that the EAT’s judgment will see an end to what risked becoming an unjust practice by some employment judges of artificially limiting claims.
What to do with the unwieldy claim now?
That is not to say that respondents or tribunals are now unable to take steps properly to manage and control diffuse discrimination claims. On the contrary, there are a number of steps respondents can and should consider in all such cases.
Draft a clear list of issues
In unwieldy claims (especially where the other side is a litigant in person), a properly drafted list of issues (in advance of the first preliminary hearing) is invaluable. Respondents are often understandably reluctant to “help” the claimant to clarify the claims. However, in my experience, a list of issues which takes a reasonable approach to the claims which the respondent believes the claimant is seeking to bring, but limits them to those which are properly particularised is often far more effective in limiting a claimant’s claims than either
leaving it to the claimant to attempt to clarify in further and better particulars (which often lead to even more claims, and frequently to less clarity); or
allowing the claimant to expand on their claims orally with an employment judge who does not have the benefit of a professionally drafted list of issues.
If faced with an employment judge who is reluctant to grapple with the detail of the claim, or sufficiently to pin the claimant down on the details, it is worth citing the EAT’s judgment in McKinson v Hackney Community UKEAT/0273/11:
“The first task always is to identify precisely what claims are being made and on what basis. This assists the claimant: certain elements have to be established, and if the claimant has not addressed his mind to them before the hearing, it may be too late to do so at the hearing. Moreover it is a necessary protection for the respondent: allegations of discrimination are serious matters, and a respondent is entitled to know precisely what the allegations are which must be faced.”
Application for strike out
Consider making an application for strike out. A properly drafted list of issues often helps to demonstrate the weaknesses in a claimant’s claim (for example, victimisation claims where the alleged detriment occurred prior to the protected act, or reasonable adjustments/indirect discrimination claims where the provision, criterion or practice (PCP) does not work as a matter of law). It is often possible to persuade employment judges to strike out further claims, particularly where the claims are unmanageable: while it is trite that discrimination claims should only be struck out in the clearest of cases, as Langstaff P said in Chandhok v Tirkey  IRLR 195 “there may still be occasions when a claim can properly be struck out – where, for instance … on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic”.
Obtain a deposit order
The “little reasonable prospect of success” test for obtaining a deposit order provides a lower bar for a respondent than an application for strike out (where the tribunal must find that there is no reasonable prospect of success). The mischief that some employment judges were trying to cure by ordering claimants to pick their strongest claims was often to weed out the weaker claims (and therefore save the parties and the tribunal the time and expense of dealing with those allegations). The proper way to do that is through deposit orders, given the strong costs warning that comes with a deposit order. The submission that, if the claimant wishes to continue with diffuse claims a number of which are obviously weak, then the claimant should have well in mind the costs risk of pursuing the weaker claims is a powerful one. Remember that the tribunal has power to make a separate deposit order in relation to each different allegation of discrimination. In practice, many claimants will not pay the deposit(s) on the weaker claims, cutting down the number of allegations that the parties and the tribunal need to grapple with.
Hiving off claims
In the right case, there will still be room for an order that certain claims should be hived off. By way of example, faced with a claim where there is a long period of time between one set of allegations and another, but in circumstances where the claimant may be able to establish a continuing act if the later allegations are in time, on the right facts it might be appropriate to hive off the earlier claims.
So, in conclusion, what in my experience was the increasingly common but often unjust use of orders forcing claimants to choose their “ten best” allegations is likely to be a thing of the past, save in exceptional circumstances. However, all is not lost for those faced with unwieldy discrimination claims, who should take advantage of the other weapons in a respondent’s arsenal where possible.
Until recently, a series of EAT decisions stretching back more than a decade appeared to establish that some sleep-in workers were entitled to be paid the national minimum wage (NMW) for every hour of their shift, including hours when they were asleep.
In Royal Mencap Society v Tomlinson-Blake (Care England intervening)  EWCA Civ 1641, the Court of Appeal has rejected this position, holding that only the time when such workers are awake for the purpose of carrying out their duties will count for NMW calculations. This will come as a relief to organisations in the social care sector, as the prospect of paying arrears as well as increased future costs had threatened to tip an underfunded sector into crisis. However, Unison has sought leave to appeal to the Supreme Court.
Many employers, from factories to care homes to call centres, require workers to perform tasks overnight. Sometimes, however, the tasks only arise intermittently and unpredictably, so that an employer just needs someone to be on call, ready to perform a task when needed. Where tasks are sufficiently infrequent, the employer may arrange for the worker to sleep for all or most of the night and provide suitable facilities for doing so.
Simple enough, perhaps; but the question of precisely which hours should count under the National Minimum Wage Regulations 1999 and 2015 has proved far from simple.
The NMW Regulations
As might be expected, hours which are spent actually working are always included in the calculation.
Under regulation 32 (and its predecessor under the 1999 Regulations, regulation 15) the calculation for time work also includes time when a worker is available, and required to be available, at or near a place of work for the purposes of working. However, this is subject to two exceptions:
Time spent at home is not included, even if the worker is required to be there and to remain available for work.
If the employer arranges for the worker to sleep during a shift, and provides facilities, then only the hours when the worker is awake for the purposes of working will count.
There are similar provisions in respect of salaried hours work in regulation 27 (formerly regulation 16), which apply once the worker has exceeded their basic hours.
Regulations 15/32 and 16/27 only apply when someone is not actually working. They are sometimes described as “deeming” provisions, in that they treat time when someone is merely required to be available for work as if it were time spent working. It follows that the exceptions under those regulations, for home work and sleeping time, do not arise when someone is actually working.
The EAT in Mencap v Tomlinson-Blake
Traditionally, care workers who sleep in so as to be available if assistance is required have been paid an allowance for the whole shift, at below NMW rates, plus NMW rates for any time when they are actually called upon to work. Government guidance issued in December 2013 appeared to support this approach (see BIS: Calculating the minimum wage (December 2013), page 30).
However, the EAT, in a series of decisions from Burrow Down Support Services Ltd v Rossiter  ICR 1172 to Mencap v Tomlinson-Blake (reported as Focus Care Agency v Roberts  ICR 1186), found that some sleep-in workers were actually working throughout their shifts, not merely deemed to be working. These workers were not therefore covered by the exception for sleeping time under regulations 15/32 or 16/27, and were entitled to NMW rates even when sleeping.
In Focus Care Agency Simler P identified in the authorities a “clear dichotomy” between “those cases where an employee is working merely by being present at the employer’s premises … whether or not provided with sleeping accommodation and those where the employee is provided with sleeping accommodation and is simply on-call” (paragraph 31). However, classifying a particular case as being on one side or the other required a multifactorial evaluation to be conducted, with no single factor being determinative.
Ms Tomlinson-Blake was a skilled care worker who supported two men with substantial learning disabilities living in a privately-owned property. Some of her shifts were sleep-in shifts from 10.00 pm to 7.00 am and she was provided with her own bedroom in the house. During her sleep-in shifts she was required to remain at the house and intervene if she judged that her support was necessary, which the ET found had happened on six occasions in a 16-month period. However, she was positively expected to get a good night’s sleep, not least because she might be working the next day.
In finding that she was working throughout her shift, the ET took into account:
Mencap’s regulatory obligation to have someone on the premises.
Mencap’s obligation under its contract with the council to have a carer present at a service user’s home.
The fact that Ms Tomlinson-Blake had to be present and listening out, even when asleep, ready to exercise her professional judgement as to whether intervention was required.
The EAT upheld the finding on the basis that this evaluation was properly multifactorial and took only relevant factors into account.
The Court of Appeal in Mencap v Tomlinson-Blake
The Court of Appeal disagreed.
Underhill LJ accepted that some workers, such as night watchmen, might at times sleep during a night shift as well as performing other expected duties, and might be entitled to NMW rates. In contrast, however, he held that the essence of a “sleep-in” contract is that the worker by arrangement sleeps at the workplace and is given suitable facilities for doing so. Under such a contract the worker is available for work, but is not actually working, and the sleep-in exception in regulations 15/32 and 16/27 applies.
In reaching this conclusion he drew on the recommendations in the first Low Pay Commission report, which the NMW Regulations were intended to implement. That report dealt explicitly with sleep-in workers:
“Certain workers, such as those who are required to be on-call and sleep on their employer’s premises (e.g. in residential homes or youth hostels), need special treatment. For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the national minimum wage for all times when they are awake and required to be available for work.” (See First Report of the Low Pay Commission (Cm 3976) (June 1998), paragraph 4.34, page 61.)
It has always been clear, then, that there is a line between working and being available for work. In a series of cases since Burrow Down Support Services Ltd v Rossiter  ICR 1172, the EAT had placed sleep-in care workers on the “working” side of the line rather than the “available for work” side. The Court of Appeal has now said Burrow Down and its successors were wrongly decided, and placed sleep-in workers firmly on the “available for work” side of the line. It remains to be seen whether the Supreme Court will take a different view.
As lawyers, we make it our business to advise our clients about the law and its implications for their rights, obligations and options. But do we reflect enough on the law’s application to us, in particular as providers of services?
The Equality Act 2010 (EqA 2010) provides protection from discrimination in respect of certain characteristics (for example, gender and race). Arguably among the more demanding aspects of the EqA 2010 are the provisions relating to disability, and nowhere more so than in relation to the provision of goods and services. While the anti-discrimination regime generally prohibits certain types of behaviour (treating protected individuals or groups worse than others), the disability provisions require, in addition, the taking of active steps. This recognises that a level playing field for disabled people necessitates not only an absence of negative treatment but also positive steps to reduce the barriers that disabled people may otherwise face. At its simplest, freedom from discrimination for a wheelchair user visiting a museum requires not only the same right of entry enjoyed by the public generally, but also step-free access to all the exhibits.
So how might this apply to legal practices and the way we provide our services? The starting point is section 29 of the EqA 2010, which says (as relevant to this blog):
s.29 Provision of services, etc.
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B):
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(7) A duty to make reasonable adjustments applies to:
(a) a service-provider … (emphasis added).
Firms and chambers may also be liable for failures by their staff or agents to comply with the above requirements, and individuals can be personally liable (sections 109–110,EqA 2010).
Section 29 must be read in the light of the interpretative provisions in sections 31 and 212 of the EqA 2010.
The duty to make reasonable adjustments is key to providing non-discriminatory services. Importantly, in relation to provision of services this duty is owed to disabled people generally, not just to actual disabled service-users. For legal practices this requires proactively anticipating the needs of potential disabled clients and enquirers (the definition or “service-user” includes those seeking to use a service) across the spectrum of mental and physical impairments. The EHRC’s Services, Public Functions and Associations Statutory Code of Practice makes clear that the duty does not require anticipating the needs of every possible disabled person who might seek to use the service, but that broad categories of needs must be considered. The needs of a visually impaired person, for example, will be very different from those of someone with severe depression, and again from a person with mobility difficulties.
The most obvious requirement is to ensure that the building, meeting rooms and toilet facilities are accessible. Beyond those basics, what sorts of barriers might we unwittingly erect in the way we provide our services that may need to be modified? The examples below follow the arc of the typical client journey (clearly each will only be problematic for people with certain conditions).
Is the practice’s website (and any other promotional material) in clear and accessible language?
Has thought been given to navigation and colour schemes?
Does it have an adjustable font size and is it compatible with text-to-speech software?
Making initial contact:
How are potential service users invited to get in touch (web form, telephone, email and so on)? The more choice, the more accessibility.
Are staff taking enquiries trained in how to deal with very distressed or anxious enquirers or individuals who find it hard to articulate what they need?
Are there provisions for deaf people?
Establishing the retainer:
Are the retainer and costs documents clear and user-friendly or are they lengthy and impenetrable?
Is there support for individuals who may struggle to understand them to ensure informed consent, and how are such individuals identified?
Is the client required to provide a written summary of their issues?
Are new clients asked if they have any disabilities or particular needs or preferences (for example as to how information is communicated)?
Do we ask if there is someone we can contact if the client later finds it difficult to give instructions (for example due to acute anxiety)?
The litigation process:
Where the client may need more time to do tasks or give instructions, do we plan ahead sufficiently to avoid pressurising the client once deadlines kick in?
Will the client need adjustments at the hearing (for example breaks when giving evidence, assistance reading documents on the stand and so on)?
If so, should this be flagged at case-management stage, or could this put the client at a tactical disadvantage?
A DBA may allow the lawyer to end the agreement if the client behaves “unreasonably”, but what if a client’s mental ill health affects their behaviour?
It is a term of a client’s legal expenses cover that costs are proportionate to quantum, but the client’s severe dyslexia means that the legal team have to spend longer taking instructions on documents and drafting witness evidence. Do we remind the insurer of their own obligation to make adjustments for disabled customers?
To charge or not to charge?
A final consideration is costs. The EqA 2010 prohibits passing on the cost of an adjustment to the disabled person (though cost may affect whether the adjustment has to be made in the first place). By way of example, if the lawyer spends twice as long relaying information to a client because the client’s disability means that they need to receive it verbally, but the lawyer wants a written record for the file of what has been said so repeats the material in an email, then that is a cost the practice probably has to absorb.
Remember that the duty to make reasonable adjustments relates to provision of the service specifically. Many of the barriers disabled people face lie with the justice system itself, not with the lawyers they hire to assist them in dealing with that system. Where the additional costs relate to work required by the client to manage the requirements of that system (for example extra support in reviewing disclosure documents) it is arguably permitted for the lawyer to charge for the extra time spent. However, these are not straightforward issues.