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Taylor & Emmet - Managing Absence Masterclass
- 1. Managing Absence Masterclass Speakers:David Poddington, Partner Jenny Arrowsmith, Partner Tom Draper, Associate Annie Gray, Solicitor “ the material for this seminar has been prepared solely for the benefit of delegates on this seminar. It should not be relied upon for giving advice and Taylor&Emmet LLP accept no responsibility for loss or consequential losses incurred as a result of reliance on this material”.
- 2. Introduction The costof sickness absence is significant Cost is not the only consequence of sickness absence Management of sickness absence is key to prevent a culture of absenteeism and its consequences Duty to provide safe working environment Duty of care Duty not to breach trust and confidence
- 3. A few facts… On average, an employee has 6.5 days off work per year Top reasons for people calling in sick Top reason for long-term sickness absence Top 5 job sectors with the worst sickness rates
- 4. Successful sickness management To keep absence to a minimum To ensure all absence is properly and promptly recorded To have a sustained improvement in attendance and to maintain satisfactory levels ACTION IS REQUIRED Before During After
- 5. Successful sickness management Contracts of employment Sickness absence policy When to report absence What evidence is required Right to obtain medical evidence Expectation of being contacted Trigger points for unsatisfactory absence levels and how it will be managed Before
- 6. Successful sickness management Monitor Keep in contact Record keeping Consider need to follow formal procedure Consider need to obtain further medical evidence During
- 7. Successful sickness management Return to work interview Consider whether adjustments are required Consider whether disciplinary action is necessary Monitor and review After
- 8. Case study Jeanhas worked for a veterinary surgery for the past 5 years as a veterinary nurse At the beginning of the year, she had a week off work and was diagnosed with bronchial emphysema Over the past couple of months she has had 7 separate instances of sickness absence lasting between 1-2 days each. The reasons she has cited include chest infections, cold & flu like symptoms, migraines and back pain Your absence policy triggers action after 10 days which is now reached
- 9. Multiple reasons forabsence The importance of documentation Are all absences related? Is there an underlying cause? Are the reasons for absence genuine? Consider whether further action is required – investigation / medical evidence / disciplinary action
- 10. Case study Havinglooked at her self-certification forms, you note that Jean’s absences tend to be on a Friday and a Monday
- 11. Malingering illness Whatis it? What can you do if you suspect it? Do you need absolute proof? Beware of unreliable evidence Don’t make assumptions What if you have paid SSP and find that the employee has been dishonest?
- 12. Case study Morerecently, Jean has been off work for 2 weeks and is to remain off sick with stress and bronchial issues for another 2 weeks Jean has submitted a note from her GP for this recent period of absence
- 13.
- 14. Case study continued BeforeJean went off sick, you had invited her to attend a disciplinary hearing for a conduct matter which is due to take place this Friday. You are concerned that her sick note from her GP refers to Stress. You are concerned that requiring her to attend a disciplinary hearing may exacerbate her stress but at the same time, you suspect that she will keep getting sick notes so as to avoid the hearing and so she still gets paid. What should you do?
- 15. Getting the mostout of Occupational Health The role of Occupational Health Specialist (Do ccMed, AFOM, MFOM or FFOM) Who pays? Independence and responsibilities Making a referral Access to Medical Records Act
- 16. Access to MedicalRecords Act 1988 (AMRA) PROCEDURAL SAFEGUARDS The employer must give the employee a statement of their rights The employee must provide written consent to the examination and preparation of the report The employee must have the opportunity to see the report before it is sent to the employer The employee may request changes to the report but may not insist on them The employee may refuse to allow the report to be disclosed to the employer
- 17. Case study continued Yourequest that Jean be seen by an occupational health specialist. She refuses. What do you do now?
- 18. Case study continued Jeanagrees to see the occupational health consultant. The report identifies that she is fit to attend the disciplinary hearing if regular breaks are given. However, her bronchial emphysema is worsening and she is not capable of fulfilling her duties and it is unlikely that she will be for quite some time, if at all (bronchial emphysema is a degenerative illness and so it is likely that it will continue to get worse). She has had the condition for 3 years and it impacts significantly on her ability to cope with day to day tasks including walking, due to shortness of breath. According to the report, the majority of the causes of absence, with the exception of stress, may relate to this condition.
- 19. Disability related absence DUTYTO MAKE REASONABLE ADJUSTMENTS Examples: Making adjustments to premises Allocating some of a disabled person's duties to another person Transferring a disabled person to fill an existing vacancy Altering a disabled person's hours of working or training Assigning a disabled person to a different place of work or training Allowing a disabled person to be absent for rehabilitation, assessment or treatment Employing a support worker to assist a disabled employee Modifying disciplinary or grievance or other procedures
- 20. Case study continued Inan absence meeting, Jean’s union representative argues as follows: “You cannot discipline her because it is all genuine absence” “Disability related absence must be discounted when looking at an employees’ sickness absence record” “Your sickness absence procedure should not apply to disabled employees” “A variation (extension) to sick pay should be a reasonable adjustment”
- 21. Grounds for dismissal Normally you will have already held at least 2 meetings Write to employee (invitation) Meet with employee (remember their right to be accompanied) Give the employee an opportunity to present their case Consider up to date medical position Consider alternatives Right of appeal Permanent Health Insurance (PHI)
- 22. Case study continued Itis now March 2014, Jean continues to be off work after 28 weeks’ absence and she has little prospect of a return to work. She has exhausted entitlement to sick pay. She has holiday accrued but not taken and it is approaching the end of the holiday year. Company policy says she should not be allowed to carry it over. The holiday year is 1 January to 31 December. You have decided to dismiss her and want to know what you should do about her accrued and untaken holiday.
- 23. Sickness absence andholiday Does holiday accrue during sickness? If so, do they have to request to take it? Can it be carried over? If so, how much can be carried forward?
- 24. Notice pay Terminationwith notice Pay in lieu of notice depends on terms of notice provisions Entitlement to full pay if notice entitlement is statutory minimum
- 25. Recent developments StateFunded Independent Assessment Service Fit note guidance Record keeping Job matching support Tax exemption for health related benefits paid by employer
- 26. Shameless Twitter Plug FollowT&E Employment team on twitter for regular top tips & employment law updates @TE_Employment
- 27.
- 28. Managing Absence Masterclass Thankyou for coming “ the material for this seminar has been prepared solely for the benefit of delegates on this seminar. It should not be relied upon for giving advice and Taylor&Emmet LLP accept no responsibility for loss or consequential losses incurred as a result of reliance on this material”.
Editor's Notes
- #2 DP: 8.30-8.40AN: 8.40-8.55JA 8.55-9.30TD: 9.30-9.50 Termination
- #3 DPSickness absence costs UK businesses approximately £29 billion a year (PwC) with a reported average cost of £600 per employee. Not just the cost of sickness pay, also need to look at temporary replacement costs, loss of productivity.Companies now realise more than ever, just how staff absence can affect a company’s bottom line if left unchecked.Having any member of staff off sick can result in extreme difficulties for any business, regardless of size, whether that be the organisational problems (e.g. reorganisation of work, lack of productivity) it creates or the negative effects on staff morale and company profits.Likely litigation – UD, PI, DDA claims. It therefore follows that the management of sickness absence is key to prevent a culture of high absence and in turn, increase your profit margins.
- #4 DPEmployees have an average of 6.5 days off per year (reported by Personnel Today in 2011) – reported that NHS staff have 9 days per yearTop reasons for people calling in sick: Minor illness such as colds and headaches, Stress, Musculoskeletal injuries such as neck strains, Back pain, recurring medical conditions such as asthma Top reason for long term sickness absence: StressTop 5 sectors with the worst sickness rates (reported by the telegraph) (worst first)Personal services (e.g. hairdressers, dental nurses, undertakers)Sales & Customer services (e.g. shop assistants, call centre workers)Professional Occupations (e.g. doctor, lawyer, banker)Process, Plant & Machine Operatives Administrative and Secretarial StaffToday we’re going through some common scenarios in managing absence. We assume you all have some experience of this area so we’re focusing on the more tricky areas. Handover to AG
- #5 AGFor effective management of sickness absence, action is required before the absence starts, during sickness absence and after the employee returns to work.
- #6 AGBefore: Contracts of employment: these should specify your sick pay provisions and sickness absence reporting procedures. S1 ERA requirement. No statutory right to full pay but SSP. Sickness absence policy – you need a robust policy which fully details what your expectations are of employees who are unable to come to work and what is expected on them whilst they are off work. Having an effective policy in place will assist employers to deal with absences consistently and effectively as well as putting employees on notice as to the standards of attendance and reporting that the employer expects from them. However, an employee will be unlikely to have the policy to hand when they are on sick leave, so their manager should take the opportunity to remind them of key points as and when necessary during discussions.Employers are in theory free to decide what medical evidence they require from employees and at what stage. However, for the purposes of administering statutory sick pay, they are not allowed to insist on a doctor's certificate for at least the first seven days. After that time, they may insist on a statutory fit note or other reasonable evidence. In practice, a fit note is usually all that is requested for SSP purposes, and HMRC advises that it should normally be accepted as evidence of incapacity unless the employer has strong grounds for believing otherwise. It will need to be renewed if it expires before the employee is fit to return to work. In cases of longer term absence employers often require employees to submit to more detailed medical examinations or discussions with occupational health specialists.
- #7 AGDuring:Monitor – trends in departments/certain managers/patterns for when absence occurs. We’ll talk about the reasons for absence soon. Keep in contact with absent employees & consult with them about their absence, diagnosis and prognosis. There is a common myth that you can’s contact employees who are off sick. This is not necessarily the case. As an employer you are entitled to know about the expected duration of the employee’s absence so you can plan your workforce and work load. You need to use your discretion: if the employee has already told you in hospital and recovery will be 4 weeks, likely to not be a compelling reason to contact but if going day by day, entitled to know what is happening. Just be cautious about regular, unnecessary contact as this can be the cause of harassment claims and is the main reason for making employer’s nervous. In long term absence cases this will mean contact to discuss medical evidence too. Record keeping - When following any procedure in relation to employee incapacity, it is essential to ensure that accurate and legible records are kept of all meetings and correspondence. If an employer dismisses an employee who has been on long-term sick leave for capability, one of the key issues to be determined if the employee subsequently brings a tribunal claim for unfair dismissal will be whether the employer acted reasonably in treating the capability of the employee as grounds for dismissal. Managers should retain file notes of telephone conversations with absent employees, as well as records of telephone messages left. Ideally, messages and telephone conversations should be followed up with letters summarising the steps taken to contact the employee and any action plans agreed, such as arranging to visit the employee at their house, or requesting that they provide copies of up-to-date sickness certificates. Such documentation will provide important contemporaneous evidence that an employer took reasonable steps to keep in touch with an employee on sick leave. This documentation should be written in a non-judgmental factual style as it is likely to be disclosable in any tribunal proceedings. Records should be stored confidentially and in accordance with any record-keeping policy and only used for the purposes for which they are collectedEmployers should not allow the situation to drift until it reaches the point where the employee has been off for so long that dismissal starts to look like the only viable option.
- #8 AGAfter:Meet with the employee to talk about their absence and to explore whether there is an underlying cause and/or whether reasonable adjustments are requiredMake a contemporaneous note of the absence and your discussions with the employee; documentation could prove crucialMonitor the situation – you have made a record for a purpose – revisit the records is there is regular absence, you may identify a recurring pattern which could be a disciplinary matterIf absence continues, address it. Follow your internal procedure. Consider whether expert medical evidence is required. Be proactive and keep lines of communication with the employee open, even if they are on long-term sick. They won’t go away so don’t ignore it.
- #9 AGTo assist us with putting our advice into practice, when looking at these key issues, we are going to use the following case study which we will keep referring back to throughout the masterclass.So the next thing to do is: RTW.Absence meeting. Any procedure should be applied consistently in order to ensure that individual members of staff do not feel "singled out" or make allegations that they have been treated less favourably. However, such a procedure should not be applied inflexibly and if a manager wishes to dispense with the requirement for an interview because the reason for an employee's absence is obvious, was anticipated or unavoidable, is unlikely to recur or lead to any problems at work, then they should record this decision.
- #10 AGThe importance of documentationThis is where the importance of written records really comes into play. If you have written records of the reasons for absence, it will be easier to reflect upon why an individual is having so much time off and identify a pattern is one is developing. Employers are in theory free to decide what medical evidence they require from employees and at what stage. However, for the purposes of administering statutory sick pay, they are not allowed to insist on a doctor's certificate for at least the first seven days. After that time, they may insist on a statutory fit note or other reasonable evidence (section 14, Social Security Administration Act 1992 and regulation 2, Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604)). In practice, a fit note is usually all that is requested for SSP purposes, and HMRC advises that it should normally be accepted as evidence of incapacity unless the employer has strong grounds for believing otherwise. It will need to be renewed if it expires before the employee is fit to return to work. In cases of longer term absence employers often require employees to submit to more detailed medical examinations or discussions with occupational health specialists (see Obtain medical evidence, below).Are they related?If there are multiple reasons, are they all interlinked in some way? Look at Jean – cold and flu like symptoms and chest infections may on the face of it look like different reasons but they may all be interlined with her bronchial emphysema and the symptoms may all be the same. If they are not interlinked, do you have reason to doubt the truth of the reason for absence? If so, is there a pattern developing? Look at Jean, we know that she tends to take time off on a Monday and Friday – is this a coincidence? Are you aware of her going away those weekends?If you have suspicions, consider meeting with the employee concerned to discuss whether there is an underlying issue – such discussions may reveal crucial information (eg. is she being bullied at work and is fabricating illness so as to avoid coming in?).
- #11 JA
- #12 JAGenuine absence is not a form of dishonesty and can be managed differently. Suspicions can arisen from hearsay, social media and suspicious patterns of behaviour. Falsely claiming SSP = fraud. Absence which is not genuine is unauthorised and could withhold pay but need to be sure it is not genuine. Beware of making assumptions - sickness absence does not necessarily mean that an employee needs to be tucked up on bed all day, every day – holidays could be good for stress, light exercise could be good for physical ailments. There is no legal requirement that a worker who is signed off sick must stay at home. In many cases, particularly those involving stress-related illnesses and/or depression, medical advice might be for a worker to try to undertake activities that will promote their return to good health and work, which is likely to include sporting and other leisure activities, or holidays. In any case, the fact that an employee is able on occasion to go out and enjoy themselves should not, of itself, be seen as evidence that they are fit for work or have been acting dishonestly. Neither is there any rule of law that an employee cannot go away on holiday, even abroad, while on sick leave. Some employment contracts provide that employees cannot use paid sick leave to go abroad, and must therefore use their annual leave entitlement if they want to do so, although such requirements may now be legally questionable in the light of ECJ case law such as Pereda.SSP - Whilst a sick note may not be conclusive for disciplinary purposes, HMRC advises that a standard doctor’s certificate or “fit note” should be accepted as conclusive evidence proof of incapacity unless there is very strong evidence to the contrary. If there are concerns over whether an employee is genuinely ill, you have the option of asking the employee to attend a medical examination for you to get your own report/ask them (at your cost) to get medical certificate. You can even ask HMRC to arrange for them to be examined by their Medical Service team. Alternatively (and in our view, the best approach), you could explain to the employee that you are stopping their SSP and if they dispute this, they can apply to HMRC’s Statutory Payments Disputes Team for a determination.
- #13 JA
- #14 JA Audience participationWhat issues can they identify? – does not confirm whether not fit for work or may be fit for work. No indication of prognosis & whether chest infection is as a result of bronchial emphysema etc.What would they do in response? – consult with Jean. Consider whether a more detailed response from GP required and consider writing to them. What if suggestions are made – do you have to agree? Consider a referral to Occupational Health (which will be discussed in a few moments time).What if Jean presented herself back at work early, ahead of 4 week period and no “might be fit”. Do you have to accept her back? Even assuming the employer is able to make the adjustments suggested by the GP in the fit note, allowing an employee back into the workplace when they "may be fit" presents employers with a number of problems, not least of which is that they may be inadvertently putting the employee or other people at risk, or possibly invalidating their employer's compulsory liability insurance. DWP guidance on fit notes advises that return to work under these circumstances should not invalidate insurance, but that employers should contact their insurer if in any doubt. In any event, the guidance advises that "you should ensure that you take account of the advice in the fit note, perform any relevant safety procedures and consider whether a risk assessment is necessary".
- #15 JA A common problem with implementing sickness or disciplinary procedures is that the employee may fail to turn up for a meeting or seek to have it adjourned. It may be appropriate to obtain medical advice if there is any dispute as to whether the employee is fit enough to attend the meeting. The employer should consider whether to adjourn or proceed, taking into account the employee's reasons for non-attendance, any medical evidence and whether there have been previous frustrated attempts to meet with the employee. Where the non-attendance is itself due to illness or disability, employers should usually adjourn rather than proceed, unless the prognosis is such that further attempts to meet within a reasonable timescale are likely to be frustrated. Although a tribunal is likely to look more favourably on an employer if it has taken steps to accommodate the employee in these circumstances, tribunals also recognise that a time comes when the employer has to make its decision on the best available evidence; in some circumstances it will be reasonable for the employer to proceed without a face-to-face meeting with the employee. If the employer decides to proceed in the employee's absence, it should invite written submissions from the employee or their representative about the possible dismissal and make clear, in any decision, that it has taken these into account.
- #16 JA The role of occupational healthPrimary role is to assess an employee’s ability to fulfill their role having regard to their physical and mental health. They have had specialist occupational health training, if don’t have qualifications above, likely minimum. Who pays?Ultimately the employer is the one who wants the report and so they pay. If the employee is not happy with the results, they can of course instruct their own occupational health adviser but this is unlikely. IndependentSupposed to be. They are there to make an objective assessment about an employee’s ability to fulfill their role. Ultimately however, they will have ongoing relationships with employers and there is the concern (mainly from employees) that there will be an element of them not wanting to jeapordise the potential for referrals. That said, they are professionals at the end of the day and have their own ethical and moral obligations to comply with.So, whilst employer pays, OH still have obligation to employee too under General Medical Council guidelines e.g. need to ensure consent and maintain confidentiality so can advise employer of fitness to work and ill health effects but cannot give full details of medical condition without consent. Making a referral How to maximize the benefit of making a referral: Provide details about your business: what you do and what the employee does on a day-to-day basis. Be specific about their actual duties. Merely providing their job title is unlikely to be sufficient. Refer to case study of Jean – what can be listed? Audience participation: State she is a veterinary nurse State that she often works on call and may attend work alone State that she is responsible for administering drugs State that she may do heavy lifting from time to time State that he work does not require her to be outside State that she does not work with chemicals and works in a well ventilated areaAsk specific questions that you want to be answered: What duties can she/can’t she do When is it likely that she will be able to do all or some of her duties. Ask for estimated dates when can do specific duties.Access to Medical Records ActWhat does it say? What rights does the employee have?What do you as employer’s need to do?How can you protect your position? – make it a contractual obligation for the employee to give their consent to you seeing the report at the same time as them. Make it a contractual obligation for them to attend occupational health (as chosen by you) if so requested – whilst you simply cannot force them to go along, their failure to attend could amount to misconduct. Changes – October/November, centralised government referral system for telephone advice for employees who have been out of work for 4 weeks.
- #17 JA The Access to Medical Reports Act 1988 (AMRA) provides individuals in some circumstances with a right to see a copy of a medical report produced in connection with employment or insurance purposes, and a right to prevent its disclosure to the employer or insurer.AMRA covers employees and workers. It covers a report. "relating to the physical or mental health of [an] individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual" The key requirement here is that the medical practitioner must be (or have been) responsible for the clinical care of the individual. "Care" includes "examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment" (section 2(1), AMRA). This will therefore cover reports by an individual's general practitioner (GP) or a consultant who has previously treated them. However, almost any previous clinical involvement between the doctor and the individual will trigger the application of AMRA. A on-off medical report prepared by a company doctor, occupational health physician or independent specialist will not, in most cases, be covered, because that person will not be (or have been) responsible for the individual's clinical care. However, there is no rule that this will always be the case, and so there may be examples of cases in which AMRA does apply to the activities of the company's doctor:When the doctor has previously seen an individual, whether in connection with the same ongoing condition or an entirely different illness or injury, that doctor could be deemed to have been responsible for the individual's "care" for the purposes of AMRA. The Faculty of Occupational Medicine advises that "it is up to the occupational physician to determine, on each occasion, whether previous activities amount to provision of care" (Guidance on ethics for occupational physicians (2006)).Where the doctor wishes, as part of his assessment, to obtain a medical report from an employee's GP or consultant, AMRA should be followed in seeking the GP's or consultant's report. For this reason, OH commonly seek AMRA consent.
- #18 JA If an individual's contract contains an express right for their employer to require them to undergo a medical examination (with it being made clear that any subsequent report will be disclosed to the employer), they will be in breach of contract if they refuse to do so.However, any contractual provision will not alter the effect of the statutory scheme set out under AMRA. A clause in an employment contract whereby the employee agrees to undergo medical examinations at the employer's request, or "consents" to such examinations and the disclosure of the resulting report, will not get around AMRA's procedural requirements. Neither is such a clause likely to satisfy the doctor in any event. Assuming that the employer's request is reasonable and proportionate in the circumstances, the refusal may amount to misconduct (refusal to follow a lawful and reasonable instruction) and may therefore form grounds for disciplinary action. However, there is no case law in this area to suggest that this a safe course of action in this scenario and it is likely to be a risky stance for the employer to adopt. It may be better for the employer to make a decision based on the underlying health issues, and rely on incapacity as the reason. If an employer has done all it reasonably can to obtain available medical information and if the individual continues to withhold consent for either an examination or information to be provided to the employer, a decision to dismiss may be within the range of reasonable responses open to it (Elmbridge Housing Trust v O'Donoghue [2004] EWCA Civ 939). In Elmbridge, the Court of Appeal held that the employer, which had repeatedly extended deadlines set for the employee to provide her consent for a medical report over a number of months, had acted reasonably when it concluded, on the strength of the evidence available, that the employee was not capable and could therefore be dismissed for incapacity.Factors relevant to fairness. If an employer has dismissed an employee who refused to provide medical evidence or to consent to a medical report, the following can help the employer argue that the dismissal was fair: The wording of any express contractual term requiring consent to an examination and disclosure of the report.Provision of a full explanation of the need for a medical report and the way in which any report supplied would be used.Warning the employee of the likely consequences of failing to consent, either in a sickness policy (provided this is drawn sufficiently to the employee's attention) or in correspondence relating to a specific request.The nature of the employee's job, particularly if the employer was under a legal obligation to monitor the employee's health, either because they are exposed to health risks (for example, handling chemicals) or because they are responsible for operating machinery which could endanger others. An obligation on the part of the employer to report any incidents, injury or illnesses caused by a workplace accident or conditions under health and safety legislation.The reason for the employee's refusal to provide consent.
- #19 JA Disability – long term.Leads on to next slide. Equality Act applies. Duty to make reasonable adjustment. Reminder of the Equality Act 2010 Unlawful to treat someone less favorably on the grounds of a protected characteristic. Disability is a protected characteristic. Types:Direct / IndirectDiscrimination arising from disabilityDuty to make reasonable adjustmentsHarassment / Victimisation In practice then, disability discrimination can arise in circumstances where an employee who has been off sick, is disadvantaged as a result of their disabilityDuty to make reasonable adjustments.
- #20 JA Duty to make reasonable adjustmentsIn consultation with the individual, the employer should consider whether there are any reasonable adjustments open to the employer to enable the individual to return to work in some capacity in the foreseeable future. The employee should be asked for their suggestions, but it is not enough for an employer simply to rely on these (Cosgrove v Caesar & Howie [2001] IRLR 653). It is safest to take medical advice if there is doubt about the prognosis of an employee or the scope of any adjustments that could be made and whether or not they would enable an individual to return to work at some stage. Employers should consider if there is another job within the business that might be more suitable for the employee (Spencer v Paragon Wallpapers Ltd [1977] ICR 301). Any discussion of redeployment should be approached sensitively, as an employee may see it as a criticism of their abilities, or a demotion. If the job is in another office the employer will need to consider any relocation arrangements. Reasonable adjustments may also need to be made to the procedure itself. For example, meetings could take place at the employee's home or other convenient location, the employee might require more notice of meetings than provided for by the employer's policy or more time to read material and prepare for meetings. However, provided an employer is reasonably flexible it will not be expected to hold off from taking decisions indefinitelyWhen does duty arise for EA purposes? An employer's duty to make reasonable adjustments can arise in any of the following situations (the third of which was not contained in the DDA 1995):Where a provision, criterion or practice applied by the employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Here, the employer must take such steps as it is reasonable to take to avoid the disadvantage (section 20(3)).Where a physical feature of the employer's premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Again, the employer must take such steps as are reasonable to avoid the disadvantage (section 20(4)).Where a disabled person would, but for the employer's provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled. Here, the employer must take such steps as are reasonable to provide the auxiliary aid (section 20(5)). All of this is subject to Paragraph 20 of Schedule 8 to the EqA 2010, which provides that the duty to make reasonable adjustments will not arise unless the employer knows or ought reasonably to know of the disabled person's disability and that the disabled person is likely to be placed at a substantial disadvantage The EHRC Code, at paragraph 6.33, highlights a number of adjustments that might be reasonable for an employer to make:Making adjustments to premises. For example, widening a doorway, providing a ramp or moving furniture for a wheelchair user.Providing information in accessible formats. This could include producing instructions and manuals in Braille or on audio tape.Allocating some of a disabled person's duties to another person. For example, a job involves occasionally going onto the open roof of a building, but the employer transfers this work away from an employee whose disability involves severe vertigo.Transferring a disabled person to fill an existing vacancy. An employer should consider whether a suitable alternative post is available for an employee who becomes disabled (or whose disability worsens) where no reasonable adjustment would enable the employee to continue doing their current job.Altering a disabled person's hours of working or training. This could include allowing a disabled person to work flexible hours to enable him to have additional breaks to overcome fatigue arising from his disability, or permitting part-time working or different working hours to avoid the need to travel in the rush hour.Assigning a disabled person to a different place of work or training. For example, relocating an employee's work station to an accessible place.Allowing a disabled person to be absent for rehabilitation, assessment or treatment. An employer might consider allowing a person who has become disabled more time off work than would be allowed to non-disabled employees to enable him to have rehabilitation training.Giving, or arranging for, training or mentoring. For example, all workers are trained in the use of a particular machine, but an employer provides slightly different or longer training for a worker with restricted hand or arm movements.Acquiring or modifying equipment. An employer might have to provide special equipment (such as an adapted keyboard for someone with arthritis or a large screen for a visually impaired person). Modifying procedures for testing or assessment. A person with restricted manual dexterity would be disadvantaged by a written test, so the employer might give that person an oral test instead. Providing a reader or interpreter. For example, a colleague reads mail to a person with a visual impairment at particular times during the working day. Alternatively, the employer might hire a reader. Providing supervision or other support. This could include providing a support worker, or arranging help from a colleague, for someone whose disability leads to uncertainty or lack of confidence. Allowing a disabled employee to take a period of disability leave. For example, an employee who has cancer needs to undergo treatment and rehabilitation, and his employer allows a period of disability leave and permits him to return to his job at the end of this period. Participating in supported employment schemes. For example, a disabled employee has been participating in a supported employment scheme where he saw the post advertised. As a reasonable adjustment he asks the employer to let him make private phone calls during the working day to a support worker at the scheme.Employing a support worker to assist a disabled employee. For example, an adviser with a visual impairment is sometimes required to make home visits. The employer employs a support worker to assist her on these visits. Modifying disciplinary or grievance procedures. For example, a woman with a learning disability is allowed to take a friend (who does not work with her) to act as an advocate at a meeting with her employer about a grievance so that the woman is not patronised or disadvantaged.Adjusting redundancy selection criteria. When an employer is taking absences into account as a criterion for selecting people for redundancy, it might consider discounting periods of disability-related absence.Modifying performance-related pay arrangements. For example, a disabled woman who is paid purely on her output needs frequent short additional breaks during her working day – something her employer agrees to as a reasonable adjustment. It is likely to be a reasonable adjustment for her employer to pay her at an agreed rate (for example, her average hourly rate) for these breaks.
- #21 JA Myth bustingThese are some of the common myths that we hear which cause some employers to think that if an employee is disabled and has time off work, they either can’t do anything in response and/or that a different kind of sickness absence procedure applies. This is not necessarily the case which is what we will look at now.“Disability related absence must be discounted when looking at an employees’ sickness absence record” – in Bray v London Borough of Camden UKEAT/1162/01 the EAT stated that:“the logical consequences of the argument that an employer should exclude from consideration the entire part of an employee’s sickness absence related to disability would be that an employee could be absent throughout the working year without the employer being in a position to take any action in relation to that absence. In our view, the tribunal was correct, as a matter of good sense, to take the point that if any such absences were to fall outside the sickness policy it would generate enormous ill-feeling and be a potential for unauthorised absenteeism”. However, whether it is reasonable for an employer to ignore such absences will always depend on the facts of the case. Recent case update – Commissioners for Her Majesty’s Revenue & Customs v Whiteley UKEAT/0581/12: This case involved an employee who had asthma. From January 2005 – September 2010 Mrs Whiteley had 54 says’ sickness absence, 41 of which were due to “acute upper respiratory tract infections”. From January to October 2010 she took 15 days’ sickness absence. 14 of these were because of viral infections and a chest infection. Owing to her absence record, HMRC applied its sickness absence policy, which was triggered when an employee took more than 10 days’ absence in a rolling 12-month period. HMRC made an allowance by reducing her the days’ absence that it took into account from 15 to 12 but this was still more than the “consideration point” of 10 days and HMRC issued her with a warning. She complained to an ET and alleged that HMRC failed to make reasonable adjustments. At the hearing she relied on expert medical evidence that provided that people with asthma find that common viral infections make their asthma worse and that people with aasthma commonly experience 6-8 viral infections per year. With reference to this evidence, the ET concluded that Mrs Whiteley was more susceptible to viral infections because of her asthma. ET found that HMRC should have found that all absences were “directly related” to her asthma and should have discounted them altogether when applying its sickness absence policy. HMRC Appealed. EAT upheld appeal and remitted to a fresh Tribunal. EAT stated that the ET’s reading of the expert evidence (that being that as asthma suffers were more susceptible to viral infections and so all of her absences were directly caused by her asthma and so should be discounted) not a permissible reading of the evidence – the expert was not saying that an asthma sufferer will suffer such infections more frequently than a person who does not have asthma. Rather, he was saying that the effects may exacerbate the effects of asthma which might lead to sickness absence. EAT went on to state that there are “at least two” possible approaches that employers might adopt when seeking to make allowances for sickness absence caused by the interaction between an employee’s disability and “other common ailments”:To consider the periods of absence in detail (and, if necessary, with expert evidence) to assess precisely the level of absence that is attributable to disability.Having considered the proper information, to consider what level of absence would someone with a particular disability reasonably be expected to have over the course of an average year due to that disability (an approach that would be of greater attraction to an employer). In the EAT’s view, if the tribunal had simply acknowledged the medical evidence that periods of absence of a few days three or four times a year were to be expected for an asthma sufferer, and applied this to the 15 days’ absence under consideration, this would have been a permissible approach. However, whether it will be reasonable to discount only the level of absence that someone with a particular disability might be expected to have in an average year will depend on the facts of each case and it all comes down to reasonableness. So whilst this case is useful guidance about the options available, it is not necessarily the only and correct approaches to be adopted going forward. Disabled employees on long-term sick leave might, at some point, exhaust their contractual sick pay entitlement. There have been a number of cases about whether discounting disability-related absence from the relevant calculation might be a reasonable adjustment to make. The disabled employee in Nottinghamshire County Council v Meikle [2004] IRLR 703 (CA) was absent from work because of the employer's failure to make reasonable adjustments. The Court of Appeal held that the employer's failure to extend the provision of sick pay to them (once contractual entitlement had been exhausted) amounted to unlawful discrimination under the DDA 1995 (see Bulletin, PLC Magazine, September 2004 (www.practicallaw.com/3-102-9280)). After Meikle, many took the view that, if a person is absent for a disability-related reason, the employer is obliged to make adjustments to its sick pay policy to keep the employee on full pay despite any contractual sick pay entitlement having been exhausted. However, there was a different outcome in O'Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 (CA). There, a disabled employee who had exhausted her sick pay entitlement claimed that she was substantially disadvantaged by her employer's sick pay rules. The Court of Appeal agreed with the EAT's statement that it would only rarely be a reasonable adjustment to give higher sick pay to a disabled employee than a non-disabled employee. The duty to make reasonable adjustments is designed to enable disabled people to play a full part in the world of work, not to treat them as "objects of charity" (which may act as a disincentive to return to work). The Court of Appeal upheld the tribunal's finding that the claimant had been disadvantaged as a disabled person (because she had exhausted her sick pay) but that her employer had made all the reasonable adjustments to alleviate her disadvantage and assist her back to work. Meikle was distinguished by the fact that, in that case, the absence from work (and hence the loss of pay) had itself been caused by the employer's failure to make reasonable adjustments at work. (See Legal update, Court of Appeal: employers do not have to extend company sick pay for disabled employees (www.practicallaw.com/8-259-4986).) In Royal Bank of Scotland v Ashton [2011] ICR 632, the EAT followed O'Hanlon and said that, while there may be cases where it would be a reasonable adjustment to disapply the employer's normal sick pay policy, such a case would have to be "exceptional".Whether or not a reasonable adjustment to sick pay rules is required, it is arguable that stopping or lowering a disabled person's pay owing to sickness absence now needs to be objectively justified under the EqA 2010's "discrimination arising from disability" and/or indirect discrimination provisions (for which, see Practice note, Disability discrimination (EqA 2010): Discrimination arising from disability (www.practicallaw.com/3-502-7601) and Indirect discrimination (www.practicallaw.com/3-502-7601)). The policy considerations in the O'Hanlon case might well aid the employer's justification argument in response to such claims.
- #22 TD Where an employer has reached the point where dismissal for ill-health is contemplated, it will usually have held at least two previous meetings with the employee. Employers should satisfy themselves that the reason for dismissal is ill-health and that they have adopted a fair procedure. The letter should set out details of the employee's absence and summarise or enclose any medical evidence relied on. Outline steps taken to manage absence so far and the effects/impact it has had on the business. Where appropriate, the employer should consider holding the meeting at the employee's home (with their agreement) or at a neutral location, as well as considering any other special arrangements to accommodate any illness or disability. It may be appropriate to obtain medical advice if there is any dispute as to whether the employee is fit enough to attend the meeting. The employer should ensure that those present at the meeting understand the background to and purpose of the meeting and the procedure to be followed. The parties should be given an opportunity to raise and address any objections to steps taken to date. The history of the employee's absence and its effect on the organisation, and any actions previously taken to address the situation should be outlined, referring to any relevant documentation. The employee should then have an opportunity to put their case and outline any mitigating circumstances. If a particularly significant new fact emerges, then it may be best to adjourn the meeting whilst the employer looks into it. For example, if an employee claims that their persistent absences are in fact all attributable to an underlying medical condition, then an employer should consider adjourning the meeting pending medical evidence or some other confirmation being obtained. The employer should sum up at the end of the meeting and endeavour to let the employee know when they can expect a decision.Opting for ill-health early retirement may be more beneficial to an employee than being dismissed for capability but employees should be advised to review the terms of any pension scheme rules carefully and consider taking independent advice. Employers should avoid making any guarantees regarding the level of benefits on offer which cannot be underwritten by confirmation from the pension scheme trustees. If employees do want to take advantage of an early retirement package then they should be asked to put their request in writing both to the employer and to the pension trustees. If an employee's request to take early retirement is accepted then the employer will not need to follow any procedure for dismissal, as termination will be by mutual consent. On the other hand, if there is a risk an employee might argue that they were effectively offered the options of ill-health early retirement or dismissal, then the employer should ensure a fair procedure is followed, in case a tribunal is asked to determine whether this was in fact a consensual termination or an dismissal (whether actual or constructive). Minutes should be taken of any meetings with the employee in case of a subsequent evidential dispute. Employers who have pension schemes that provide early ill-health retirement benefits should ensure that employees who are absent on long-term sick leave are considered for such pensions before a decision to dismiss is taken.Re: alternatives, consider PHI/retirement. A PHI policy can be taken out either by an employee or an employer to provide benefits in the event that the employee is unable to work by reason of illness or injury.Providers of PHI impose strict criteria. The scope of a PHI policy's definition of the term "incapacity" will be vital in determining whether an employee is able to recover any benefits under the policy. Some providers define incapacity as an inability to follow the employee's normal occupation, whereas others define it as inability to follow any occupation. Clearly the latter definition is extremely narrow and is likely to exclude those employees who are unable to carry out the job they are contracted to perform but who may be able to undertake alternative work. PHI policies commonly defer the payment of benefits until the employee has been unable to work for a specified period. This "deferment period" differs in length and is sometimes designated by the employer who holds the policy to tie in with the duration of their contractual sickness pay period, or for the maximum period for which SSP is payable, currently 28 weeks. This would mean that if an employee was accepted to be eligible for benefits under a PHI policy, they would begin to receive them on expiry of their contractual sickness pay, theoretically without a break.Employers considering the position of an employee on the expiry of their contractual entitlement to sick pay should review their PHI policy carefully and well in advance of contemplating dismissing the employee. Dismissing an employee before establishing whether they would be entitled to benefits under a PHI policy or whilst they are in receipt of benefits could entitle the employee to claim damages for breach of contract for being wrongfully deprived of benefits under the employer's PHI policy. Employers should consider the wording of the employee's contract, the rules of the policy and whether their actions could be construed as wrongfully depriving the individual of the possibility of cover under the scheme. In Aspden v Webbs Poultry & Meat Group (Holdings) Ltd [1996] IRLR 521, a PHI policy provided that employees who were wholly incapacitated from working by sickness or injury would receive three quarters of their salary until death or retirement, provided only that they remained in the company's employment. When the employer terminated the employment of MrAspden before he became eligible for PHI, he brought a claim for breach of contract. The High Court held that there was an implied contractual term to the effect that the employer would not terminate the contract while the employee was incapacitated for work and could qualify for benefits under the policy, except in the event of gross misconduct justifying summary dismissal (in other words the employee's fundamental breach of contract). This was despite an express contractual provision allowing dismissal for psrolonged incapacity; the facts were such that it was reasonable to assume that the parties could not have intended for the express right of dismissal to prevail in the event of long-term incapacity. In Aspden the PHI scheme was introduced after the employee's contract of employment had been entered into. The High Court implied a term on the basis of "what the parties would have inserted if they had not simply overlooked, as they clearly did, the existence of the insurance scheme, since the contract was not drafted with such a scheme in mind". The written terms did not, in the court's view, express the parties' true intention, and so could be overridden by an implied term. The court acknowledged this decision fell "towards the limits of the range of the canons of construction" (Bulletin, PLC Magazine, October 1996 (www.practicallaw.com/3-100-2431).)The case of Lloyd v BCQ Ltd UKEAT/0148/12; UKEAT/0239/12 affirmed the orthodox view, expressed in Reda and Another v Flag Limited [2002] UKPC 38, that terms will rarely be implied where there is an express term governing the situation. In Lloyd the EAT held that there was no implied term that the employer would not dismiss Mr Lloyd, notwithstanding his entitlement to PHI, and Aspden was distinguished as a rare case confined to its facts. The EAT found that Mr Lloyd did not have a contractual entitlement to PHI and secondly, it held that there was no scope for implying a term where there was an express term entitling the employer to dismiss An employer cannot dismiss an employee solely as a means of removing their entitlement to benefits under a PHI scheme (Briscoe v Lubrizol [2002] IRLR 607 (CA)). However, the Court of Appeal in Briscoe found that an employer acted lawfully where it dismissed an employee for good cause, namely his clear intention not to be bound by his contract of employment, demonstrated by his wilful disregard of instructions issued by his employer to contact them to discuss his absence. Options: Seek to override any implied term by reserving an express right to terminate employment even if this disentitles the employee from claiming under the scheme. This may seem perverse given that the whole purpose of PHI is to give protection to the employee who cannot work, and it is clear that such a term would have to be very explicit in order to be upheld by the court. Note that a contractual right to dismiss does not guarantee that a tribunal would find such a dismissal fair.Agree in the contract with the PHI insurer that, once an employee has become eligible for PHI benefits, they do not need to remain on the employer's books in order to continue to be entitled to receive PHI benefits. Refer to this in the employee's contract of employment.State that if the employee is refused cover by the PHI insurer and refused again on appeal, then the employer's implied duty is discharged and it is not obliged to retain the employee thereafter. Expressly exclude any duty to litigate on the employee's behalf.Ensure that the employee's contract of employment does not give any greater right to PHI benefits than those provided in the current insurance policy. Cover PHI in brief only – not fully. Within scope of today as complex issue.
- #23 TD
- #24 TDThe law relating to holiday rights for employees on sick leave has been in a state of considerable uncertainty and flux for some years in spite of various ECJ and domestic decisions that have tried to clarify the position. A worker accrues paid holiday entitlement under the Directive (4 weeks) during sick leave: Stringer A worker that has been unable to take leave due to sickness must be able to carry it over to the next year. A worker on sick leave during pre-arranged holiday has the right, at their request, to take that holiday at a later date when they are not on sick leave, even if that means carrying it over to the next leave year: Pereda v Madrid Movilidad SA The Directive does not preclude a national law whereby a worker on long-term sick leave loses untaken holiday entitlement 15 months after the leave year to which it relates. Recent case law: Sood Enterprises v Healy: In this case the EAT was required to determine whether the Directive requires the additional 1.6 weeks’ holiday to also be carried over when the worker is prevented from taking his leave due to long term sickness absence. EAT held that as there was no agreement between Mr Healey and his employer that holiday could be carried over, it didn’t have to be. Practical advice: check your contracts for such an agreement as if carry over of holiday is expressly permitted in the contract then employees will be entitled to carry over the full 5.6 weeks holiday if they are prevented from taking it due to sickness absence rather than just the 4 weeks provided for by the Directive.
- #25 TD As being absent on sick leave is not treated as a fundamental breach of contract, any dismissal will need to be with full notice, except in the very rare cases where the employment contract has been frustrated (in which case there is no dismissal. The general rule is that, unless the contract provides otherwise, the employee has the same rights during notice as they would have had if they were not under notice. If they are on sick leave during the notice period, they may have the right to SSP (subject to the normal qualifying criteria) and may have the right to contractual sick pay if they have not already exhausted their entitlements. The same would apply where the employee gives notice to resign.There are special rules under sections 86 to 91 of ERA 1996 which might apply so that an employee who is unable to attend work because of sickness or injury and who has exhausted their right to contractual sick pay and/or SSP is nevertheless entitled to receive full pay for their statutory notice period. However, these rules do not apply where "the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by section 86(1)" (see section 87(4), ERA 1996). Therefore, where an employee's contract reflects their statutory minimum notice entitlement under section 86(1) of ERA 1996 and they have exhausted their entitlement to pay, they will nevertheless be entitled to receive full pay for their notice period. However, if they have exhausted their entitlement to pay and their contract entitles them to at least one more week than their statutory minimum notice they will not be entitled to receive any pay for their notice period. The same rules apply to employees who are absent due to pregnancy, maternity leave, paternity leave, adoption leave, parental leave or annual leave, or where the employee is ready and willing to work but no work is provided by the employer.Where it is the employee who has given notice, they may be entitled to full pay during the statutory notice period (which in this case is always one week). Eligibility is still governed by whether the notice period that would have had to be given by the employer is at least a week more than the statutory notice period. Somewhat strangely, in such cases the employer can delay payment of the sums due to the employee under these provisions until after employment has ended (sections 88(3) and 89(5), ERA 1996). These obligations apply whether or not the employee on sick leave has exhausted their right to sick pay. However, any sums paid to the employee by way of sick pay (statutory or otherwise) will count towards their entitlement to full pay (sections 88(2) and 89(4), ERA 1996). It is hard to imagine what the policy behind these "windfall" payments is, except perhaps to encourage employers to give employees notice periods that are substantially longer than the statutory minimum.
- #26 TD In early 2011 the Government commissioned Dame Carol Black to carry out a review of sickness absence to explore ways in which the current sickness absence regime could be changed to end the "sick-note culture" and reduce associated costs. In January 2013, the Government published its response to the report, making clear that it would adopt most of its recommendations. Key recommendations to be adopted are as follows:A state-funded Independent Assessment Service will be set up. After an employee has been absent for four weeks, a GP will be required to refer them to an occupational health professional to assess the person's physical and mental condition, unless there are clear reasons for the GP not doing so. Where an employee has not been referred by the GP at the four-week point, an employer may refer the employee to the service themselves. The IAS will be able to provide advice to employees and employers about how an employee on sickness absence could be supported to return to work. Revised fit note guidance, emphasising the importance of assessing an individual's health condition in relation to work in general and not just their capacity to return only to their own job. The revised guidance was published in March 2013 and is available on the DWP website.After a 20-week absence, employees will be directed to a free internet job-matching service (the report had recommended the launch of a full job-brokering service, but the Government will not pursue this).The current record-keeping obligation in relation to statutory sick pay (employers to keep records of sickness absence and SSP payments for three years after the end of each tax year) will be abolished (date not specified).The 2013 Budget announced that the government will introduce a new tax exemption for health-related benefits paid for by employers (on the recommendations of the new Independent Assessment Service) to support an employee's return to work. The exemption will be capped at £500. The government will consult on the exemption later in 2013 and legislation will be included in the Finance Bill 2014.
- #27 DP to close