Employment Law Update
Freeth Cartwright LLP
25 June 2012
David Potter
Agenda
Difficult employment issues
Short and long term sickness absence Disability Discrimination
Case Update
Future Legislation / Changes
Short term sickness management
Problem:
An employee with a history of repeated short-term sickness absence for minor illnesses is off again.
You are considering dismissal.
What factors should you bear in mind?
Length / frequency of the absences Effect on the business Underlying medical condition? Likelihood of improvement? Length of service Size and resource of organisation
Short term sickness management
Short term sickness management
Problem:
Monday morning: David has called in sick.
Tuesday: David’s colleague informs you that David had put a comment on Facebook abouthis long weekend away.
Is this a genuine absence? Is it a disciplinary issue? Can we obtain any evidence? David’s past disciplinary/sickness
record?
Short term sickness management
Short term sickness management
Problem:An employee with a history of ‘stress and depression’ has been off sick with the same condition for the past two months. The absence is covered by a fit note. You do not know they will return and this is having a huge impact on the team.
Maintain contact, consider home visits, keep notes of meetings
Consider adjustments, alternative employment
Medical investigation regarding nature of illness, effect on work, ability to do other work, prognosis, timescale for recovery
Short term sickness management
Problem:
An employee has a poor
sickness record, is often late
and spends a lot of time away
from his desk.
His sick notes says he had
Irritable Bowel Syndrome’.
Stress aggravates his condition.
Disability Discrimination
Is this a disability? Meet with the employee Support/reasonable adjustments Confidentiality issues
Disability Discrimination
Problem:
Your sick pay policy provides for a reduction in pay after a certain number of months’ leave.
Is a disabled employee still entitled to receive full pay?
Disability Discrimination
Full pay difficult to claim - unless absence caused by failing to make reasonable adjustments
Nottinghamshire CC v Meikle [2004] O’Hanlon v Commissioners of HM Revenue
and Customs
Disability Discrimination
Problem:A disabled employee has applied for a transfer.
Do you need to give preferential treatment compared with other candidates?
Disability Discrimination
Consider waiving competitive interviews - Archibald v Fife [2004]
Redeployment where no vacancy exists? Creating a new role - Southampton City College v Randall
[2006] Swapping with another employee - Chief Constable of
South Yorkshire Police v Jelic UKEAT/0491/09
Disability Discrimination
Case law updateReasonable adjustments –
not a general duty to support
Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley
EAT - duty to make reasonable adjustments is not a general duty by employers to "assist a disabled person".
A duty, where a PCP places the disabled person at a substantial disadvantage compared to non-disabled people, to take reasonable steps to stop the PCP placing them at that disadvantage.
Misconduct via social media
Teggart v TeleTech UK Limited - Northern Ireland Industrial Tribunal
Derogatory comments about an employee on Facebook breached the employer’s harassment policy and therefore the dismissal was fair.
Article 8 and 10 ECHR – Right to Privacy and Right of Freedom of Expression – considered and rejected.
Case law update
Justifying a fixed retirement age
Seldon v Clarkson Wright and Jakes (A Partnership) Supreme Court: identified two kinds of legitimate
social policy objective that have been identified by the EAT
Inter-generational fairness and dignity Aims of the Partnership’s compulsory retirement age
were legitimate Case remitted to Tribunal on issue of proportionality
Case law update
Misconduct which could affect future career
Crawford and another v Suffolk Mental Health Partnership NHS Trust
CoA: investigation, disciplinary process and appeal carried out by the employer must be particularly fair and thorough where the dismissal affects the employee’s future career
Guidance on issues for employers to consider before suspending an employee or reporting allegations of employee misconduct to the Police
Case law update
Legislation update - 2012
Unfair dismissal
Employees whose employment commenced on or after 6 April 2012 will need two years service before accruing the right to claim unfair dismissal or becoming entitled to written reasons for dismissal
The qualifying period will continue to be one year for employees whose employment commenced before 6 April 2012
Legislation update - 2012
Employment Tribunals
Judges may sit alone no unfair dismissal cases Judges have the power to order:
deposit orders of up to £1,000 (increased from £500)
and costs of up to £20,000 (increased from £10,000)
Queen’s speech – May 2012
Enterprise and Regulatory Reform Bill Requirement for Claimants to lodge claim with
ACAS Renaming compromise agreements as
“settlement agreements” Settlement offers
Children and Families Bill Flexible parental leave Flexible working Follows proposals from Modern Workplaces
consultation
Forthcoming / future legislation
Legislation update
Compensated no-fault dismissals
Compulsory pay audits
Collective redundancy consultation – 30 or 45 days not 90
Consultation on discrimination law reform
Abolishing discrimination questionnaires
Removing Tribunal’s power to make “wider” recommendations
Removal of third party harassment from the Equality Act 2012
Consultation will close in August 2012
Legislation update
Thank you for attending
Any questions?