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?

Contacts:

David Potter – Employment Partner

Direct Dial: 0845 274 6819

Email: david.potter@freethcartwright.co.uk