The casual viewer of hit television programme Downton Abbey may not have picked up on the employment issues it contains. Nevertheless, events from the series raise interesting employment law questions, which might give employment solicitors and HR professionals cause to think. If you delve a little deeper, you find that the subjects it addresses are surprisingly current and affect employers today. This article looks at events that have occurred in Downton Abbey that have been dealt with in recent case law.
Disability discrimination
At the end of series one, we see the cook, Mrs Patmore, struggling to carry out her role because of very poor eyesight. On learning of this, her employer Lord Grantham pays for her to have cataract surgery in London. This raises the question of whether Mrs Patmore would have had a claim if Lord Grantham had refused to fund treatment.
Reasonable adjustments
In the recent case of Croft Vets Ltd & Others v Butcher [2013], the Employment Appeal Tribunal upheld the Tribunal’s decision that it was a reasonable adjustment for an employer to pay for an employee to have medical treatment.
In the above case, Ms Butcher was suffering from work-related stress and depression. A consultant psychiatrist recommended that the employer pay for private psychiatric counselling and cognitive behavioural therapy. The consultant felt that, although there was only a 50 per cent chance of the treatment succeeding, it would certainly lead to a significant improvement in Ms Butcher’s mental health.
Equality Act 2010
Section 20 of the Equality Act 2010 places an employer under a duty to make reasonable adjustments where it applies a provision, criterion or practice (PCP) that puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The PCP in this case was the requirement for Mrs Butcher to attend work and be able to carry out her duties.
The adjustments, which were recommended by a consultant psychiatrist, were sufficiently ‘job-related’ to fall within the scheme of the legislation. They would have involved payment for a specific form of support to help the employee return to work and cope with her work-related difficulties. On that basis, the EAT held that such adjustments were reasonable because they would mitigate the effect of the PCP.
Advice to employers
Although at first glance a decision that an employer was obliged to fund a disabled employee’s private medical treatment might seem surprising, the EAT emphasised that this was not a case about employers generally being obliged to pay for private health care. However, based on the facts of this particular case, the Tribunal had been entitled to find a breach of the duty to make reasonable adjustments.
It was key in Croft Vets that the employee’s health problems were to a large extent caused by her work. The extent to which an employer must be to blame for an employee’s mental health problems before it is obliged to pay for treatment is likely to be a relevant issue. However, in general terms, paying for an employee’s private medical treatment is something that might well assist the employee in returning to and coping at work, which is what reasonable adjustments are designed to do.
At this stage, employers should carefully consider any requests or recommendations for funding of medical treatment on a case-by-case basis. If an employer is in any doubt as to whether it might be reasonable in the circumstances for them to fund treatment, they should take legal advice.
How would this apply in Downton Abbey?
Although Mrs Patmore would not have been able to bring a claim against Lord Grantham, as the Equality Act (or its predecessor Disability Discrimination Act 1995) does not apply retrospectively, his decision to pay for treatment seems sensible today. If Lord Grantham had not paid for the operation, he would have been under a duty to make reasonable adjustments in relation to Mrs Patmore’s role.
However, if the effect of the operation is that Mrs Patmore no longer suffers with vision problems, it is unlikely that she would continue to meet the definition of ‘disabled’ under the Equality Act and the duty to make reasonable adjustments would fall away.
Vicarious liability
In the current series, ladies’ maid Anna is violently assaulted by the valet of a visitor, Lord Gillingham. There is concern that Anna’s husband, who is also an employee of Lord and Lady Grantham, will fight the valet in retaliation. This raises some interesting questions about what exactly Lord and Lady Grantham or the visiting Lord could be vicariously liable for. For instance, could Anna bring a claim against Lord Gillingham? Could Lord and Lady Grantham be liable for her husband’s actions in retaliation?
Many employers are unaware that they can be liable for actions committed by their employees in certain circumstances. An employer is vicariously liable for the wrongdoings of its employees where they occur in the course of employment. The phrase ‘in the course of employment’ is interpreted widely and the key question is whether the employee’s conduct is so closely connected with their employment that it would be fair and just to hold the employer liable.
The key question in any case of vicarious liability is whether the employee was acting in a personal capacity or in the course of their employment. This can often be difficult to determine. An act might appear unconnected with an employee’s work but, when the context and circumstances in which it occurred are taken into account, it may be seen as incidental to – and within the scope of – employment.
Workplace violence
Most recently, the Court of Appeal considered whether employers were vicariously liable for employees’ violent actions in the cases of Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd [2012]. In the first case, Mr Weddall was the deputy manager of a care home. One night, Mr Weddall telephoned Mr Marsh, a senior health assistant, to ask if he was willing to cover a vacant shift. Mr Marsh was free to accept or refuse the shift but was drunk and upset when he received the call. Following the conversation, Mr Marsh cycled to the care home and violently attacked Mr Weddall. The Court of Appeal held that the employers were not vicariously liable for the actions of Mr Marsh. Although the assault happened at the workplace, it was otherwise unconnected with his employment. Mr Marsh was not carrying out his employment duties but had acted personally, for his own reasons.
However, the Court of Appeal reached a different conclusion in Wallbank v Wallbank Fox Designs Ltd. Mr Wallbank was managing director of Wallbank Fox Designs Ltd, a small manufacturing company. There was evidence that it was sometimes difficult to communicate instructions to one of the employees, Mr Brown. Mr Wallbank asked Mr Brown to fix an error but Mr Brown did not reply, so Mr Wallbank made a further comment indicating a willingness to help Mr Brown. Mr Brown then put his hand on Mr Wallbank’s face and threw him onto a table, causing Mr Wallbank a serious injury. The Court of Appeal found that the employer was vicariously liable. They considered that the possibility of friction was inherent in the factory environment and that the employee’s attack was instantaneous and had a close relationship with the employment in both time and space.
Advice to employers
What practical steps can employers take to avoid vicarious liability for the acts of their employees in these circumstances? Employers should take all reasonable steps to prevent such violent acts from occurring. For example, they should ensure that they:
- Have up to date anti-harassment, equal opportunities and discrimination policies;
- Provide training to all staff on these policies;
- Train managers to recognise early signs of tensions within working relationships and how to deal with them;
- Ensure that any grievances are properly investigated to ensure that no employee feels that they have to take matters into their own hands;
- Deal with any violence or other unacceptable behaviour that does occur in line with the company’s disciplinary policy.
How would this apply in Downton Abbey?
In Downton, Anna would probably have been unable to pursue a claim against Lord Gillingham and the Granthams would be unlikely to be held liable for her husband’s retaliatory actions, as there would have been good arguments from the employers that his actions were not ‘in the course of employment’. This would leave Anna with the prospect of pursuing a claim against the valet, which may leave her with little chance of receiving compensation.
For more information on this article, to discuss how these issues might affect your business or to discuss employment law matters in general, please contact us our Employment Law team by calling 0117 904 6000.
