A round up of the latest HR and Employment Law updates and related stories.
EMPLOYERS MUST CARRY OUT A “BALANCING EXERCISE” TO DEAL WITH LONG-TERM ABSENCE
Dealing with long term absence remains a concern for employers as the recent case of Monmouthshire County Council -V- Harris [2015] UKEAT/0332/14/DA, illustrates. The Claimant (C), had been employed by Monmouthshire County Council since 1992, and her employers were aware that she suffered from four conditions (depression, sinusitis, asthma and under active thyroid), and so was “disabled for the purposes of the Equality Act 2010” (EqA).
Prior to autumn 2010 C’s working pattern allowed her to work from home during early mornings, late afternoons and each Friday. Issues then occurred with a change of management and matters escalated in January 2013 when C’s manager asked her to attend a meeting at short notice on her first day back from leave, and at a time when she usually worked from home. C made a complaint that her manager was “not supporting her home working,” went off work due to ill-health and did not return.
Communications then took place between C and the employer’s Human Resources Officer and at a second meeting C was advised that the employers were “unable to support her ongoing absence “indefinitely.” However, the risk of dismissal was not spelt out.”
In June 2013 C was dismissed and appealed, but at the same time, supported by her GP, she applied for ill health retirement on the basis that there was “a very remote chance of a return to work.” The appeal made no reference to the retirement application and the original decisions were upheld. C’s claim for ill health retirement was also refused.
An Occupational Health report agreed that C was “likely to meet the definition of disability for the purposes of the Equality Act” and was “unfit for work in any role at that time.” However, the report was “guarded as to whether C would be able to render regular and efficient service in future and was unable to provide any clear indication as to when she might be able to return to work.”
Following dismissal C submitted a claim to the Employment Tribunal for unfair dismissal and discrimination arising from disability. Her claim was successful and she was awarded £238,216.37.
The employers appealed and the EAT upheld the appeal because the original ET:
- did not consider the question as to whether the employer should have been expected to wait longer before dismissing the employee when considering whether the dismissal was unfair and
- failed to properly consider the discrimination and the question of proportionality
So what must practice managers do?
Bear in mind that decisions require a “balancing act” and must be reasonable, which means the employer must:
- avoid unlawful discrimination arising from disability (s15 EqA) and make any reasonable adjustments (s21 EqA) to facilitate a return to work
- have a genuine consultation with the employee
- give the employee sufficient warning of potential dismissal
- wait sufficient time to see if the employee can return to work, particularly taking into account whether the employee’s absence may have been caused in any way by the employer
Practice Managers should also retain detailed records of their decisions making process.
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