Ill Health Dismissal

Dismissed pregnant woman loses European court case

Following a claim by a pregnant woman who was made redundant by Spain’s Bankia, the ECJ has ruled that the dismissal was lawful.

 

What do you need to know

Whilst the dismissal of a pregnant worker is prohibited under the EU Directive 92/85, and covers the time between conception and the end of maternity leave, there are some exceptions.

If a pregnant worker is dismissed, but the reason for the dismissal is not connected to pregnancy, then the move does not infringe upon EU law.

Under EU law, an employer must state in writing the reason for their decision to make a collective redundancy.

They must then inform the pregnant worker of the criteria used to decided who will lose their jobs.

In this case, the dismissed pregnant worker was informed that she had been given a low score in a company assessment.

 

Lessons learned

The case is not just a reminder of the rights of pregnant workers, but also the importance of documentation.

If you’ve got to make a group of employees redundant, then you need to be clear about the basis for which you are choosing who stays and who goes.

On top of this, you need to be clear with pregnant workers, by communicating with them personally and in writing, that the reason for their redundancy is not based upon their pregnancy. Any ambiguity could be potentially harmful in the long run, so document everything well.

For plain-English, expert advice on any of the above, you can contact Alison here.

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Does long-term sick leave mean termination of employment is unfair?

The UK Court of Appeal has considered if an employer was discriminating against its employee who had been on long term sick leave for more than 12 months by terminating her employment.

The background

In the case O’Brien v. Bolton St Catherine’s Academy, a teacher employed by the Respondent school was assaulted by a pupil in March 2011. Consequently, the teacher suffered serious stress and was on sick leave for over a year.

The teacher attempted to return to work in December 2011, but she was unsuccessful. Following this she had not returned to work, and in January 2013 the school terminated her employment.

The teacher lodged an internal appeal, which was heard in April 2013. The teacher produced a ‘fit for work’ note, as well as additional medical evidence, at this hearing. However, the panel upheld the dismissal on the grounds that the medical evidence was inconsistent, the prognosis was not good, and her return was uncertain. As a result, the teacher claimed against the school for disability discrimination.

The outcome

The UK Court of Appeal considered it unreasonable that the school had disregard the teacher’s  medical evidence at the internal appeal hearing. Because the school already had endured the teacher’s absence for 15 months, it was considered unreasonable for the school not to wait a few months longer, so that the school could obtain and assess its own medical evidence.

The court felt that the school should consider and provide evidence of the impact of the teacher’s prolonged absence (which it had not done to this point). Therefore, the court felt, the school’s dismissal of the teacher constituted disability discrimination. The court did acknowledge that this was a borderline ruling due to length of absence, and the nature of evidence of when the teacher would be fit to return to work.

What can we learn from this?

Although employers are not expected to wait forever for an employee to recover from illness, there are a number of steps they should take to prevent any action being considered as unfair.

  • Written records of any disruption caused to the business of the employers arising from the employee’s absence should be documented.
  • Employers should assess any medical evidence produced by the sick employee carefully, including any new evidence which may be available during the dismissal process (including any internal appeal hearing).
  • Additionally, employers should consider the nature of the illness, the likely length of continuing absence, and the need of the employers to have done the work which the employee was engaged to do.

For more expert employment advice, you can contact Alison here.

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Pensions update: Was a disabled employee treated unfavourably?

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another the Court of Appeal stated that a disabled employee was not treated unfavourably (and therefore discriminated against) when his enhanced pension on ill-health retirement was based on the salary he earned when working part time due to his disability, rather than his full time salary.

Background

Mr Williams, the employee, suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. Before eventually taking ill-health retirement (at 38) he reduced his hours with his employer, Swansea University, in order to better cope with his condition and his pay was reduced accordingly.

Mr Williams was allowed, by the University, to take his accrued pension benefits immediately and without any actuarial reduction for early receipt, rather than having to wait until his normal pension date nearly twenty-nine years later. This meant he was treated as though he had accrued nearly twenty nine years further pensionable service and his benefits were advanced.

Mr Williams brought a disability discrimination claim at the Tribunal under s 15 of the Equality Act 2010. Mr Williams argued that, by using his actual part time salary rather than a full time equivalent, the calculation of the enhancement to his benefits amounted to “unfavourable” treatment and therefore unlawful discrimination.

In the initial hearing the Tribunal upheld his claim. The University then successfully appealed to the EAT. Following this Mr Williams appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT because:

  • under the pension scheme rules the only employees entitled to retire early and to receive an enhanced pension were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010;
  • Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better;
  • that Mr Williams was working part-time hours because of his disability could not be enough to require the employer to justify the treatment; and
  • there is no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”.

This decision confirms that, even if it could have been more advantageous, treatment that is advantageous does not amount to unfavourable treatment.

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The Supreme Court has ruled that employment tribunal fees are unlawful

The government suffered a heavy defeat on 26th July after the Supreme Court ruled that employment tribunal fees are unlawful and the government will now have to repay up to £32m to claimants, relating to claims dating back to April 2013.

Brought forward by the Unison union Lord Reed, the judgment said that the fees were unlawful because of their effects on access to justice. Introduced in 2013 and costing between £390 and £1200, the fees have been said to prevent access to justice for workers unable to fund their case.

“The making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.”

While the fees were brought in by the government to reduce the number of malicious and weak cases, after 3 years there had been a 79% reduction in cases brought forward.

Discrimination cases cost more for claimants because of the complexity and time hearings took. The Supreme Court found this was indirectly discriminatory because a higher proportion of women would bring discrimination cases.

Unison general secretary Dave Prentis has said: “This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”

So what now?

In order to deal with this massive backlog of repayment and claims the Presidents of the Employment Tribunals have issued Case Management Orders.

The Order states that all cases and applications arising from the Unison case, or applications for reimbursement of fees, shall be made in accordance with administrative arrangements to be announced by the Ministry of Justice and HMCTS shortly… We wait to see what happens next!

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Do employees need to know about all of the factors being considered for their sanction?

An employer had initially decided to issue a final written warning to an employer for misconduct in October 2012. The employer, however, only decided to dismiss the employee after the manager concerned discovered that the employee had, in fact, been issued with a ‘first’ written warning for an earlier misconduct in a letter that was given after October 2012.

The employee was then told that when the manager had to make a decision regarding the October 2012 allegations, they would only be informed of the first warning letter. However, he wasn’t told how significant the warning would be in deciding his sanction and he was not given the opportunity to argue his case.

The Employment Appeal Tribunal found that the employee should have been told that the warning would be taken into account in deciding his sanction and given a chance to argue his case. They argued that the employer had misled the employee, the employer had failed to accord him natural justice and therefore he had been unfairly dismissed.

So what information should employers give?

It’s important to tell any employees facing disciplinary proceedings about all of the factors that are being taken into account when you are deciding on their sanction. Failure to do so could lead to the dismissal as being rendered unfair. This may result in a necessity to reconvene the hearing at a later date in order to give the employee to have a say on any developments in the case.

For more information about this or other human resource matters please contact Alison.

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Does failure to follow the Acas Code make a dismissal necessarily unfair?

For a disciplinary decision to be considered fair it must follow the Acas code, which sets out the procedure that should be followed and the basic principles of fairness in a disciplinary situation.

Recently the EAT became involved with a case that involved an employee who had been dismissed. They felt that the dismissal was unfair and failed to follow proper procedure, including failing to follow the Acas code.

The employee, A, was employed as a prison pharmacist and received disciplinary action when she was accused of resisting and obstructing a project she was charged with. Alleged inappropriate and unprofessional behaviour led to her ultimate dismissal. But A stated that there were a number of procedural failings during this process. Initially, the manager at the hearing based their decision, in part, on information which had not been put to A. The decision was appealed by A and a full re-hearing by a panel of three took place. On this panel was a director, who was a mentor to an alleged victim of misconduct, and also a subordinate of the manager. It was this subordinate who made the initial decision to dismiss, which was upheld by the appeal panel. Various tribunal claims were brought by A, including race discrimination and unfair dismissal, and she also claimed that the make-up of the panel was not in line with the Acas code – which states that the decision should be made by more senior and impartial managers who were not involved in the original decision.

The tribunal dismissed these claims. They found that any flaws in the initial stage (for example using matters not put to A) had been remedied during appeal stage, and thus did not have any bearing on the final decision’s fairness.

A appealed to the EAT, but they similarly found that any flaws during the disciplinary stage had, in fact, been remedied and the make-up of the panel did not impact the fairness of the decision. Particularly, the EAT commented that it was impractical in most companies for senior managers and directors to be expected to have no dealings with witnesses prior to a disciplinary procedure. After all, senior employees often mentor subordinate members of staff and it would be unrealistic to not allow senior employees to use their experience during a disciplinary process. Without any other suggestion of bias, a hearing could not be classed as unfair on this basis alone. In this case the director in question only had links to one of the witnesses, and was not sitting in judgment on her own prior decision or involvement in the case. Additionally, the panel’s consultation of a senior pharmacy professional, and the fact that panel included two members senior to the original decision maker, meant that the issue of a junior member of staff sitting on the appeal panel was not a problem.

In the end the EAT found that the tribunal had given proper consideration to the make-up of the appeal panel when looking at fairness as a whole, and the appeal of A was dismissed on all grounds.

For more advice on this or other HR matters please contact Alison.

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Floodgates opened to historic claims?

The Employment Appeal Tribunal has ruled that an employee who has submitted a claim six years late is allowed to proceed with their case. Does this mean you need to worry about other historic claims that you thought were safe?

Tribunal claims are restricted to tight time limits, partly to prevent employers from the constant fear of legal action forever. For example, if an employee wishes to contest an unfair dismissal it must be done within three months of their employment’s termination. But, since the Employment Appeal Tribunal’s (EAT) ruling in the Higgins v Home Office 2015 case, it’s been suggested that previously time-barred claims should be allowed to proceed. Is this really the case, and should you be panicking?

But before we decide this, let’s first take a look at the details of the actual case. Miss Higgins was employed by the Home Office from 2003 to December 2007, and during this period it is known that she had suffered with acute psychosis. Miss Higgins had decided to resign at one point but, having done this under the influence of her mental illness, the Home Office had allowed her to withdraw her resignation. However Miss Higgins later repeated her resignation in November 2007, and this time the Home Office stuck to it. This is where it all kicked off.

Miss Higgins considered her employer’s decision to be constructive dismissal and found solicitors to pursue a tribunal claim on her behalf. But as this commenced her mental health worsened and she was unable to make her case by February 2008 – the deadline for lodging a tribunal claim. Finally, in January 2014, she decided to file a constructive dismissal claim. Her application, however, was somewhat vague and it was hard to distinguish was Miss Higgins actually wanted.

The tribunal found this application “an abuse of process” due to how late the claim had been made, but Miss Higgins made another application to be reconsidered. This time she provided details of her mental health condition and a letter from a psychiatrist, which stated she had not been mentally fit enough to pursue a legal case since her dismissal 6 years ago. However this was refused again, and Miss Higgins appealed to the EAT – which ruled that her case was able to proceed.

The amount of evidence provided meant the tribunal “appreciated the potential severity and impact” of Miss Higgin’s mental illness and why it had meant she was unable to go through with her case within the normal time limit. All of this means that you don’t need to panic about a floodgate of historic claims opening. The circumstances of this case are highly unusual, and the EAT felt that it was possible that Miss Higgins had lacked capacity under the Mental Capacity Act 2005 between her resignation and 2014. As this would prevent her from legally issuing a claim or instructing lawyers during this period, she has been allowed to pursue it now.

While the EAT’s ruling means Miss Higgins can now commence with her case, it’s important to remember that this does not mean she was constructively dismissed. All the ruling means is that she is allowed to pursue her case and may, ultimately, fail.

For advice on this or any other HR issue please contact Alison.

 

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Can you dismiss an employee for smelling of alcohol?

Your employee has turned up to work smelling like a brewery. Is this a good enough reason to show them the door or would sacking them on the spot only be asking for more trouble?

Imagine the scene: one of your workers turns up in the morning, albeit on time, with some pretty obvious signs of a rough night behind them. In fact, the smell is so bad that you worry about getting drunk from the fumes yourself. Does the fact they’ve shown up like this (possibly even still under the influence) give you good grounds for dismissal? Surprisingly, perhaps not.

All the facts we need can be found in the McElroy v Cambridge Community Services NHS Trust 2014 case. Mr McElroy, a healthcare assistant for the Trust, turned up to work smelling of alcohol and was subsequently reported by one of his colleagues. Despite maintaining that he had “only had a few drinks the previous night” the Trust still launched an investigation into the case. While the Trust accepted Mr McElroy’s explanation, and it was decided that his ability to work had not been affected, Mr McElroy was dismissed.

But why did they decide this? Apparently, the Trust felt that he had breached their policy on alcohol misuse and Mr McElroy was therefore liable for gross misconduct. But Mr McElroy claimed that this was an unfair dismissal and the tribunal agreed.

Turning up for work only smelling of alcohol is, in fact, not a good enough reason to dismiss an employee. Rather, the employer must be able to prove that alcohol has made the employee unfit to work or caused problems for the employer. Anything less is unfair.

In short, if an employee has been drinking in their own private time, and it hasn’t affected their ability to work, it’s none of your business. It’s as simple as that. If, however, Mr McElroy had turned up to work late, still inebriated and fallen asleep, or been unable to care for the service users properly, then the employer would have every right to take disciplinary measures in relation to misconduct issues.

Having a good alcohol and drugs policy is of real importance here. It should include things like the prohibition of using alcohol or drugs in the work place or during work time, the sanctions of alcohol and drug related misconduct, as well as where to seek advice and counselling if dealing with alcohol or drug dependency.

As the tribunal shows, smelling of alcohol is not in itself misconduct and dismissal for this reason is unfair. But if an employee is clearly affected by alcohol consumption and is unfit for work or they breach health and safety laws then you have every right to take disciplinary action – or even, where appropriate, dismiss them.

For advice on this or any HR matters, please contact Alison.

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Can you really be too sick to resign?

An employee who had spent 18 months on sick leave before resigning was found by the Employment Appeal Tribunal to have delayed too long, in resigning, to bring a claim of constructive dismissal.

In this case the employee was a systems support analyst for Reuters. She resigned after being off sick with stress, anxiety and depression for 18 months. At this point she brought a constructive dismissal claim before the employment tribunal.

She justified this thorough objecting to treatment which took place before the commencement of sick leave. She stated that her delay in resigning and bringing a claim was justified because she was “too sick to properly consider [her] position” and had not properly “affirmed” her employment contract as she was off sick.

The tribunal rejected both these arguments. During the 18 months the claimant was off sick, she organised extensive travel plans and sought legal advice. She also accepted sick 39 weeks of sick pay. As a result the tribunal did not support a claim of constructive dismissal because of the length of the delay.

The Employment Appeal Tribunal agreed with the tribunal’s analysis. They ruled that she had, in fact, affirmed her contract by calling on her employee to perform its obligations under her contract (namely paying sick pay and providing PHI). As a result it was deemed that she had delayed too long and accepted the terms of her contract, during this period, and constructive dismissal could, therefore, not apply.

What do you need to do as employers?

This is good news, providing clarity for may employers managing employees on long term sick leave. Following this case it is important, for constructive dismissal to apply, for there to have been only a short period of sick leave and a short delay in resigning. Claiming sick pay can also be used to show that the employee has not ended the contract.

It is important that employers consider their processes and procedures for managing those on longer term sick leave. For advice and support with this please contact Alison.

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When is it reasonable to dismiss an employee who has been absent from work due to ill-health for an extended period of time?

For many small and medium sized businesses sickness in the workplace is a significant drain on resources and productivity.  This case looks at the point at which it is considered reasonable to dismiss an employee following ill-health.  In this case, would a reasonable employer have waited longer before dismissing the employee – perhaps considering whether the employee is likely to return to work in the foreseeable future?

Case background:  The employee in this case had worked for the same company for 25 years.  Most recently however, they had been absent from work due to depression and anxiety and this had already lasted for over a year.  The employer had requested a medical report, which had shown that although the employee was currently unfit to work, he was making progress. The report suggested that he would be fit to return to work within one to three months.  However, having received this report, his employer dismissed him.  They did this because they said that the employee himself had indicated that he did not think he was getting any better.

The employee took the matter to an Employment Tribunal.  They upheld his complaint that he had been unfairly dismissed, stating that, in their view, no reasonable employer would have dismissed the employee after receiving that report, and no reasonable employer would have disregarded the advice contained in it. 

The employer took the matter to the Employment Appeal Tribunal.  This court felt that the matter was more complicated and needed further consideration.  They stated that the Employment Tribunal had placed too much weight on the employer’s failure to obtain further medical advice before dismissing the employee.  As a result they sent it back to the Employment Tribunal for reconsideration.  The Employment Appeal Tribunal issued the following statement:

“First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer.  Secondly, there is a need to consult the employee and take his views into account.  We would emphasise, however, that this is a factor that can operate both for and against dismissal.  If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him.  Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered”

Conclusion – what this means for your business?

The pathway that this case went down stressed the importance of balancing out the various elements at play, when addressing whether to dismiss someone on the grounds of capability.  Whilst length of service is not in and of itself conclusive reason why an employee should experience ‘special treatment’, tribunals may take this into account when weighing up how likely someone is to want to return to work as soon as they are able.  Other considerations for employers may well include whether a reasonable employer would wait longer to dismiss someone, perhaps taking into account outstanding entitlement to sick pay, availability of other – or temporary – staff, as well as the size of the business and its ability to ‘cope’.  They might well include demonstration of a meaningful consultation process with the employee, the balance of medical evidence  and the demonstration that reasonable steps have been taken to understand the prognosis.  Whilst an employer may not be required to have obtained a detailed, specialist medical report, they should be able to demonstrate that they have asked the right questions and had them answered.

 

If you would like advice about how the issues in this note apply to your situation, please contact Alison Benney.

 

Tel: 01803 668518  

Mobile: 07967221595

 

alison@enlightenhr.com

 

 

Warning – this bulletin is for information only and does not claim to be comprehensive or to provide legal or other advice. You should take legal advice before taking or refraining to take any action. No liability is accepted for loss that may arise from placing reliance on this bulletin.

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