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Just
because an employee is sick does not mean that you have the right to
dismiss them. Equally, however, if that person’s absence becomes
damaging to your business, a court may decide that you were reasonable
to dismiss, after going through all the appropriate procedures.
Not
surprisingly, there is a difference in the way that you should deal
with short-term, intermittent absences (which are likely to be dealt
with as a conduct issue), as opposed to a long-term absence (which is
likely to be dealt with as a capability issue).
What information do you have to provide?
Under
section one of the Employment Rights Act 1996, every employee is
entitled to receive details of any contractual terms and conditions
about incapacity for work due to illness or injury. You must give these
in writing within two months of the person starting work with you.
How should you deal with short-term absences?
If
someone is taking off a series of individual days from work, you may
want to look at their sickness pattern. You may even use a system
whereby an investigation is automatically triggered after a certain
number of days.
Even
if you have this system, you should not dismiss someone without giving
them the chance to improve. You should also give the employee a time
scale in which to improve and explain the consequences if they do not.
Although
warnings may seem inappropriate in cases of absence due to illness, you
may well be justified in giving one, particularly if the employee’s
absences are for no more than a day or two at a time.
However,
the warnings should be sympathetically worded if it is clear that they
are suffering from an underlying medical problem, although you also
need to make clear what will happen if the absences continue.
There
are no hard and fast rules about disciplining staff while they are off
sick. So it’s a good idea to negotiate a sickness policy which sets out
the circumstances in which you will proceed with disciplinary issues.
In
general, you don’t have to obtain medical evidence in cases of
intermittent illness. But if in the course of an investigation, an
underlying medical condition becomes evident then you should seek a
proper medical opinion.
If
it turns out that the person's condition is unlikely to improve, then
you should treat it as a long-term illness. If the condition is not
long-term but is genuine, then you should still treat the matter
sympathetically.
What about long term sickness absence?
If
someone is suffering from a long-term illness, the Disability
Discrimination Act 1995 (DDA) may apply. If not, and you dismiss the
person, the dismissal may be fair, as long as you:
-
discover the true medical condition
-
consider alternative employment
-
consult with the individual
First
of all, you must ask for your employee’s consent to consult either
their GP or the company doctor about their medical condition. These
records are confidential and a doctor cannot disclose them without the
individual employee’s consent.
The
Access to Medical Reports Act 1988 gives further protection to
employees, in that they are entitled to see the report before you do
and to withhold consent if they want. They can also correct any errors
in it.
The
Act only applies, however, if the report is by a practitioner who is or
has been responsible for the clinical care of that individual. Reports
obtained from your company doctor are, therefore, unlikely to be
covered by the legislation.
If
an employee refuses to comply with a request for a report from their
doctor (or any other doctor, for that matter), there is little more
that you can do to investigate their long-term illness. It may then be
fair to dismiss them either for "capability" on the basis of whatever
limited medical evidence is available, or "conduct" for refusing to
obey a lawful or reasonable instruction.
If
an employee cannot go back to their old job after a period of sickness
or is unable to carry on with the same job because of a medical
condition, you must at least try to find some alternative employment
for them.
That
obligation is even greater if they are protected by the DDA and you
have to make reasonable adjustments for them. However there are limits
to the obligations on you to find other work and needless to say, you
do not have to create a vacancy for an employee.
If
someone is off on long-term sick leave backed up with sickness
certificates, giving them a warning about their state of health is
clearly inappropriate. Instead, you should consult with your employee
regularly throughout the period of sickness absence.
If
you refuse to let someone return to work until the occupational health
doctor certifies them fit, although their GP has given the all-clear,
your employee is entitled to be paid at their normal rate (as opposed
to sick pay). And remember that if you dismiss someone when they are
still on sick leave and receiving sickness pay, they are still entitled
to receive pay in lieu of notice, but only at that rate.
It
is not clear, however, whether employees are entitled to paid,
statutory holidays under the Working Time Regulations when normal sick
pay has run out. The issue is to be decided by the European Court of
Justice when it considers the case of HM Revenue and Customs v Stringer.
Contact during sick leave
There
are no hard and fast rules about this, but you need to use tact and
common sense if someone is off sick. Ideally, you should have a
sickness policy governing when and how often you will make contact with
them.
And
if you think your employee is swinging the lead, you may be entitled to
carry out covert surveillance of them as long as it is proportionate to
the issue confronting you (McGowan v Scottish Water). Whether this would amount to a breach of human rights will depend on the facts, but it is an increasingly common practice.
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Section
1(1) of the Data Protection Act applies to personal data that is
processed "by means of equipment operating automatically in response to
instructions given for that purpose" or "is recorded as part of a
relevant filing system". In Johnson v Medical Defence Union
the Court of Appeal said that does not include information that is
processed manually before it is stored or recorded on a computer.
What happened?
As
a member of the Medical Defence Union (MDU), Mr Johnson was entitled to
professional indemnity cover. During his membership, no complaints of
professional negligence were made against him, but he sought advice on
numerous occasions about different incidents.
As
a result of his record, an MDU risk manager carried out a computerised
assessment review of him in May 2001. Most of the information retrieved
by the manager was held on computer, and the rest was paper-based. She
made a computerised summary of the allegations.
His
case was referred to a committee of senior practitioners who
recommended that his membership be terminated and his professional
indemnity cover ended.
Mr
Johnson brought a claim for compensation, arguing that his expulsion
had come about as the result of unfair processing of his personal data
by the risk manager.
The
union claimed that none of the data had been processed "automatically"
by the risk manager. With regard to the electronic files, it argued
that she had used her own judgment to make a summary of the files she
had read on the computer database. The manual files were irrelevant as
they did not form part of a "relevant filing system" and were therefore
exempt.
By
a majority, the Court of Appeal held that the selection of personal
data by the risk manager from different sources did not amount to
"processing" of data under the DPA.
It
said that data had to be processed automatically to fall within the
Act. Although some parts of the risk assessment had been carried out
electronically, the assessor had first reached her conclusions from
information that she had selected and analysed manually. Otherwise, the
Court concluded, anyone who made a decision based on information which
they then put on a computer would find themselves covered by the Act.
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There is sometimes a difference between the terms stipulated in a contract and what happens in reality. In Beattie v Age Concern,
the Employment Appeal Tribunal (EAT) came out in favour of an employee
whose contract guaranteed 15 hours of work, but who regularly worked in
excess of 30 hours per week.
Ms
Beattie had been working for Age Concern for ten years when she went
off on an extended period of sick leave in September 2005. Her contract
stated that her normal working week was 15 hours, "but could be
significantly more". Her employer said they would only pay sick pay for
the 15 hours she was contractually required to work. Ms Beattie said
that her sick pay should reflect the hours she actually worked - in
excess of 30 per week.
The
tribunal agreed that although the working week was set at 15 hours, her
normal working hours were those "as agreed" with her manager such as
working weekends and accepting other work allocated to her.
It
also agreed that Age Concern recognised that Ms Beattie was obliged to
work more than 15 hours each week. However, equally it was clear she
could choose whether to accept some of the hours allocated to her. It
concluded, therefore, that Age Concern was not contractually obliged to
offer more than 15 hours work, nor was Ms Beattie obliged to do more
than that every week.
The
EAT, however, disagreed. It said that the tribunal chair ignored the
fact that Ms Beattie had been working more than 15 hours per week in
reality, and that this could only have happened with the agreement of
her employer.
It
concluded that although Ms Beattie’s contract only guaranteed 15 hours
of paid work every week, both parties were expected to agree the actual
hours she would work and that is exactly what happened in reality. That
reality should therefore be reflected in her sick pay.
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Included
in the recent announcement about the Government's draft legislative
programme was a proposal for an Employment Simplification Bill. The
purpose of the bill, believe it or not, is to "simplify, clarify and
build a stronger enforcement regime for key aspects of employment law."
The bill includes the following:
-
Implementation
of the outcome of the Gibbons review of workplace dispute resolution,
including repeal of the statutory dispute resolution procedures
-
Clarification and strengthening of the enforcement framework for the National Minimum Wage
-
Strengthening the employment agency standards enforcement regime
-
An amendment to trade union membership law in light of the recent judgment by the European Court of Human Rights in ASLEF v UK allowing trade unions to expel members on the basis of their membership of a political party
To download the document, go to: www.cabinetoffice.gov.uk/publications/reports/governance/governance.pdf
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