Partners Employment

Law SeminarEmployment Law update

Thursday 12th February 2015

Managing Sickness

Absence

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Putting procedures in place

Contract of Employment

Staff Handbook

Sickness absence policy

Monitoring sickness levels

When an employee calls in sick

Evidence of incapacity

A "self-certification" for absence of seven calendar days or less

A doctor's certificate for longer absences -"Statement of Fitness for Work" or "fit note"

Employers are in theory free to decide what medical evidence they require from employees and at what stage

But for SSP - not allowed to insist on a doctor's certificate for at least the first 7 days

While the employee is off sick

Keeping in contact

Updates on medical condition

Keeping a paper trail

Conduct during sick leave

Return to work

Return to work interviews

Return to work where employee ‘may be fit’

The guidance on fit notes issued by the DWP points out to employers that: "If you can’t agree on any changes, you should treat the fit note as if it says that your employee is not fit for work and use it as described above. Your employee does not need a new fit note from their doctor to confirm this.“

Rehabilitating an employee into work

Phased return to work.

Varied start and finish times.

Alteration or reallocation of duties

Relocating an employee's workstation.

Purchasing equipment or software which assists an employee to carry out their duties.

Problem area

Pregnancy-related illness

• Protected Period - from conception until the end of the statutory maternity leave period

• Dismissing an employee or subjecting her to any detriment as a result of a pregnancy or maternity-related illness occurring during her protected period is unlawful

• Levels of absence – disregard any absence related to pregnancy/maternity that falls within the protected period

• Sickness absence falling after the end of maternity leave (e.g. post-natal depression) may be taken into account

• Employers should exercise caution, as it is still open to a tribunal to make a finding of unfair dismissal on ordinary principles.

Problem area

Holidays and sickness absenceWorking Time Regulations 1998 provide workers with the right to take 5.6 weeks' paid holiday in each leave year.

Case Law:

• A worker accrues paid holiday entitlement during sick leave and other absences from work

• A worker who has not been able to take holiday due to a period of sick leave must be allowed to carry it over to the next leave year

• A worker who is on sick leave during a period of pre-arranged holiday has the right to take that holiday at a later date when they are not on sick leave, even if that means carrying the leave over

• A worker on long-term sick leave loses untaken holiday entitlement 15 months after the leave year to which it relates - cannot carry over unused holiday indefinitely

When absences become a problem

Meetings to determine:

The reasons for the absence.

When the employee is likely to return to work (in cases of long-term absence).

When the employee is likely to show improved attendance patterns (in the case of short-term absence).

Investigating the reason for the absence is likely to involve obtaining medical evidence and consulting with the employee.

Long-term absences

The likely date of return

Whether the employee perceives they can return to their previous job and what adjustments can be made.

What alternatives the employee may wish to explore

The mechanics of a return to work programme

Whether the person has a disability and, if so, whether there are any reasonable adjustments to be made.

Disability Discrimination

Disabled if:

• physical/mental impairment

• long term

• substantial & adverse effect on ability to do day to day activities

Discrimination arising from disability

Individual treated unfavourably (not less favourably) because of something

arising in consequence of their disability there will be discrimination unless:

The employer can show that it was a proportionate means of achieving a

legitimate aim – objective justification; or

Employer did not know or could not reasonably be expected to know of

disability

Duty to make reasonable adjustments

• If applicant/employee is disabled (looked at definition)

• duty to make reasonable adjustments

• to avoid physical feature or pcp (e.g. working practices) putting them at a

substantial disadvantage.

• Provide auxiliary aids (e.g. computer adapted equipment) to avoid

substantial disadvantage

Examples of Adjustments

Making adjustments to premises (e.g. wheelchair access);

Acquiring or modifying equipment (e.g. suitable computer packages);

Providing information in an accessible format;

Allocating some of the disabled person’s duties to another worker;

Transferring the disabled worker to fill an existing vacancy (e.g. if no

reasonable adjustments can be made to their current role);

Altering the disabled worker’s hours of work (e.g. later starts);

Assigning the disabled worker to a different place of work;

Allowing the disabled worker to be absent during working or training hours

for rehabilitation, assessment or treatment.

What is reasonable?

• Consider:

• whether taking any particular steps would be effective in preventing the substantial disadvantage

• the practicability of the step

• the financial and other costs of making the adjustment and the extent of any disruption caused

• the extent of the employer’s financial or other resources

• the type and size of the employer

Short-term absences

The effect of the pattern of absences on the business.

The likelihood of continuing absences and the impact they are likely to have.

Whether there are changes to the employee's job or redeployment opportunities that would assist

Whether the employee has a disability and, if so, whether there are any reasonable adjustments to be made.

Whether it is appropriate to give the employee a formal warning

Investigate the cause and likely length of absence

Obtain medical evidence

Meeting and consulting with employee regarding medical evidence

Employee may have a statutory right to be accompanied by a trade union representative or a colleague at the meeting where it could result in either:

A formal warning being issued to a worker by the employer.

The taking of some other action in respect of a worker by the employer.

The confirmation of a warning or some other action.

Consider reasonable adjustments or alternative employment

Dismissal and alternatives

Capability dismissal

Writing

Meeting

Appeal

Permanent Health Insurance

Disclosure of pre-existing conditions.

Exclusion of certain categories of illness.

Waiting period.

Provision of benefits for a limited period.

Examination by the insurer's medical adviser

Subtracting any income received from other sources

Requiring employees to continue to be employed in order to receive benefits under the policy.

Ill-health retirement

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Stress at Work

With an average of 40 days'

unpaid overtime a year, Britons

work the longest hours in

Europe.

According to a recent report by

the Royal College of

Psychiatrists, “almost one in

four British adults… experience

a diagnosable mental health

problem at any given time”.

What is stress?

The Health and Safety Executive (HSE) define stress as "the adverse

reaction people have to excessive pressures or other types of demand

placed on them".

Why do people talk about stress so much today?

There is a growing awareness of the importance of health and safety

and recognition that healthy employees make a greater contribution to

a business.

Main causes of stress

Demands

Control

Support

Relationships

Role

Change

Why do we need to tackle stress?

Health & Safety executive state over 105 million days are

lost to stress each year – costing UK employers £1.24 billion.

About one in five people in a stress study said that they

found their work either very stressful or extremely stressful.

What form does stress take?

Work-related stress is not an illness but it can contribute to

problems with ill health.

As well as anxiety and depression, stress has been associated

with heart disease, back pain and gastrointestinal illnesses.

Legal framework

The rights and duties of employers and employees in relation to stress derive from a

combination of sources:

Health and safety legislation.

Common law tort. The main source of cases on stress is the law of negligence (a

breach of the employer's common law duty of care)

Restrictions on working hours.

Disability discrimination

Other forms of discrimination or harassment

Contract.

Unfair dismissal under the Employment Rights Act 1996

Negligence Employer’s duty of care

Employers are under a common

law duty to take reasonable

care for the health and safety of

employees in the workplace.

This duty arises under the tort

of negligence, on which

personal injury claims are

usually based.

Causation & Foreseeability

Was injury foreseeable?Should there be the same approach to -

(1) the issue of liability where the employee has become ill over a period

of time due to their inability to cope with the ongoing pressures of the

job, as opposed to

(2) the situation where illness arises suddenly as a result of a one-off act

of unfairness, such as the imposition of an unfair disciplinary sanction.

In November 2014, the Court of Appeal handed down its judgment

in Yapp v FCO

It was decided that the same approach should now apply to both of

these situations. It will not usually be foreseeable unless there are

indications, of which the employer was or should have been aware, of

some problem or psychological vulnerability on the part of the

employee.

Risk of illness arising from disciplinary

proceedings

The Court of Appeal in Yapp v FCO pointed out - a stress-related injury claim could succeed where the employer’s conduct was so devastating in its unfairness that even a person of ordinary robustness, with no prior vulnerability, may develop a depressive illness as a result.

However, while there may be a temptation to bypass a formal disciplinary process in order to avoid exacerbating an illness, this should be avoided.

In order to minimise the risk of claims in this situation, an employer should:

obtain occupational health input;

provide more advance notice of an investigation meeting and of the substance of matters to be discussed with the employee;

conduct some preliminary investigation of allegations, avoiding “knee-jerk” reactions and taking into account, where possible, the employee’s critique of them before making a decision to withdraw or suspend an employee; and

provide an employee with the option of being accompanied to meetings throughout the disciplinary process.

15 steps for employers to take

Employer’s should…

1. familiarise managers with, and implement, the Health

and Safety Executive’s Management Standards for work-

related stress;

2. provide particular stress awareness and management

training;

3. have clear procedures for handling misconduct and poor

performance and for raising grievances;

4. monitor working hours;

…

Cont…

5. engage with the Fit for Work scheme or occupational

health;

6. offer a confidential counselling service, if one is

available, but should not assume that their duty of care

is discharged by doing so;

7. obtain independent medical advice;

8. consider whether working flexible hours would help

employees to manage demands;

9. meet training needs; and

10. make sure employees understand what they have to do

and how to do it

Cont…

11.use return to work interviews after sickness absence,

performance appraisals and employee surveys;

12.have in place an anti-stress policy;

13.consult employees, employee representatives or unions

on organisational changes;

14.avoid placing unreasonable demands on employees;

15.provide support.

Court of Appeal guidance

2002 CA gave a landmark judgment in four joined stress cases, Sutherland v Hatton; Somerset County Council v Barber; Sandwell Metropolitan Borough Council v Jones; Baker Refractories Ltd v Bishop

House of Lords later acknowledged that these guidelines were "useful practical guidance“

Some key points :

One of the crucial questions is whether this kind of harm (stress-related injury) was reasonably foreseeable in the individual.

No occupation is to be regarded as intrinsically more dangerous than another to an individual's mental health.

Warning signs from employees will play a fundamental role in establishing liability because once the employer is on notice of the adverse effects of stress, the consequences are more foreseeable.

Employer which offers confidential help (for example in the form of counselling) to employees suffering stress is unlikely to be found in breach of its duty:

Caution - not panacea

Sutherland v Hatton (CA 2002) – guideline about

counselling

The court said that an employer which offers confidential

help (for example in the form of counselling) to

employees suffering stress is unlikely to be found in

breach of its duty. However it is difficult to see how this

step alone will exonerate an employer placing unrealistic

demands on a vulnerable employee.

Croft Vets Ltd and others v Butcher

UKEAT/0430/12

Held that it would be a reasonable

adjustment for an employer to pay

for a depressed employee's private

counselling

Anti-stress policies are important

Employment Law Update 2015

A snapshot of 5 changes to look out for

1. Changes to statutory adoption leave

and pay The Paternity and Adoption Leave (Amendment) Regs 2014

make significant changes to adoption leave. The 26-weekqualifying period to be eligible to take adoption leave will beremoved, bringing it into line with the eligibility requirementsfor maternity leave.

The Children and Families Act 2014 brings statutory adoptionpay into line with SMP by setting it at 90% of average weeklyearnings for the first six weeks.

Surrogate parents will also become eligible for adoption leave.The leave will be available to employees who are, or expect tobe, the parents of a child under a parental order, where thechild’s expected week of birth begins on or after 5 April 2015.

Implementation date: 5 April 2015

2. New right to take time off to attend

adoption appointments

The Children and Families Act 2013 introduces a new right

to attend adoption appointments. The main adopter will

be able to take time off to attend up to five, while the

secondary adopter will be entitled to take time off for up

to two such appointments.

Implementation date: 5 April 2015

3. Child’s age limit for parental leave

raises to 18

Shared parental leave is unrelated to parental leave, the

statutory right to a period of unpaid leave that may be

taken by a parent during the first five years of the child’s

life.

From 5 April 2015, the age limit for the child will

increase from five to 18 years. Parents with sufficient

qualifying service will have the right to 18 weeks’ unpaid

parental leave up to the child’s 18th birthday.

4. New Fit for Work service available for

employees with sickness absence of four weeks or

more

The Fit for Work service (FFW) was set up following therecommendations of Dame Carol Black. It is being delivered inEngland and Wales by Health Management Ltd and in Scotland bythe Scottish government via NHS Scotland. There are two aspectsto the service:

Free health and work advice through its website and telephoneadvice line to help with absence prevention.

Free referral for an occupational health assessment foremployees who have reached, or whose GP expects them toreach, four weeks of sickness absence.

FFW cont…

FFW is intended to assist employees return to work, using a

return-to-work plan where appropriate.

The service can also be used to provide more generalised open-

access occupational health advice to employees, employers and

general practitioners, regardless of the duration of any

sickness.

Employers will be able to claim up to £500 tax relief on

payments for medical treatment for their employees where the

treatment has been recommended under the new scheme.

Implementation date: May 2015

5. Holiday Pay Ruling

Bear Scotland v Fulton

Counsel Andrew Smith

of

Matrix Chambers

5. Holiday Pay Ruling

Bear Scotland v Fulton

The landmark ruling in Bear v Fulton ruled that non-guaranteed overtime

should be included in holiday pay calculations.

Following the EAT's decision in Bear Scotland,

statutory holiday pay derived from the Working Time Directive must be

calculated in accordance with the tests laid down in the ECJ case law,

whereby holiday pay is based on pay that is normally received and must

include:

Payments linked intrinsically to the performance of the tasks which

the worker is required to carry out under their contract of

employment.

Payments which relate to the worker's professional and personal

status.

Commission?

Yes. The ECJ ruled that commission must be

included as it was intrinsically linked to the

performance of tasks under the worker's contract.

Overtime pay?

Three categories of overtime:

Guaranteed (compulsory) overtime, where even if the employee is not called on to work it, the employer is liable to pay them for it.

Voluntary overtime, where an employee cannot be required to work it, and the employer does not have to provide it.

A "halfway house" (sometimes called "non-guaranteed" overtime), where the employee is obliged to work overtime if required, but the employer is not obliged to provide overtime or pay in lieu.

Following the EAT's decision in Bear Scotland Ltd v

Fulton and another, it is clear that "non-

guaranteed" overtime should also be included in leave taken

under the Working Time Directive, as it is required by the

employer and therefore intrinsically or directly linked to a

worker's work

What about voluntary overtime?

Voluntary overtime (where there is no obligation on either side) wasnot dealt with definitively by the EAT in Bear Scotland, and so theposition is less clear.

However, it is possible that tribunals will interpretvoluntary overtime as forming part of normal remuneration if asettled pattern has developed over a sufficient period of time tojustify the label of "normal" pay.

In the light of Bear Scotland, therefore, employers should not assumethat all voluntary overtime will be excluded from the calculation ofstatutory holiday pay under regulation 13 of the WTR 1998. Theuncertainty left by the Bear Scotland decision means that future caseson the inclusion of voluntary overtime in holiday pay are virtuallyinevitable, especially as voluntary overtime is much more common inmany sectors than compulsory or non-guaranteed overtime.

Deduction from Wages (Limitation)

Regulations 2014

The Government set-up a taskforce to review the impact of large backdated

holiday pay claims on UK businesses and, on 8th January 2015, the Deduction

from Wages (Limitation) Regulations 2014 came into force.

These Regulations amend the Employment Rights Act 1996 to limit back-dated

claims for underpayment of holiday pay to two years.

Whilst the Government’s intervention goes some way to

mitigate the effects of the decision in Bear, there remain

unanswered and complex questions surrounding holiday

pay that still need to be resolved by the courts and

tribunals.

For example, should truly voluntary overtime and/or

bonuses be incorporated into holiday pay and is the 12 week

reference period correct for the purposes of determining a

week’s pay? We expect to see many more holiday pay cases

launched in the coming months.

THANK YOU

Partners Employment Lawyers

02073746546 www.partnerslaw.co.uk

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