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When you forget about an employee...

February 20, 2017 at 9:00 AM

Whilst Mr Garcia, a Spanish civil servant who failed to turn up for work for "at least" six years until he was caught after becoming eligible for a long service award is an extreme example, it can be a case of ‘out of sight out of mind’ when it comes to employees who are absent from work – especially on long-term sick leave. Budgets can be rearranged to accommodate cover and if there are changes in HR and management then the absent employee can easily be overlooked. It happens more often than you think.

Most employers appreciate best practice includes regular home visits, inclusion in social and news events and referral to the employer’s occupational health professionals and reasonable adjustments to help the employee back to work. But what should a business do if they discover someone who has been off for the last year without any contact?

Empty Desk

Many employers immediately think an easy way out is to say the employee left sometime in the past. The legal term is “frustration of contract”. For a contract to stand any chance be terminated through ‘frustration’ there can be no contact at all between the parties and it can nearly always be guaranteed there has been something: the annual P60, pension update, sick notes...all of which show that the contractual relationship is still alive.

The first step to take back control is to gather information. Is this employee still being paid? Is it Statutory Sick Pay or something enhanced/discretionary or perhaps they are receiving payments under a company funded permanent health insurance (PHI) scheme? It is not uncommon for someone to have forgotten to take them off payroll when their company sick pay was exhausted.

If the employee receives PHI and is being managed by the your insurance company, they are likely to be carrying out regular assessments and be in contact with the employee, then there is generally nothing further for you to do. Unless there is a specific provision to the contrary in their contract, there is an implied term that an employer will not dismiss an employee who is in receipt of permanent health insurance payments because once dismissed, the employee is no longer entitled to payments under the PHI scheme.

Difficult decisions will need to be taken in situations where PHI is paid but for a limited amount of time where the employee is unable to work despite reasonable adjustments.

Whatever an employee’s situation, it is important to understand exactly what their ailment and prognosis is. A referral to occupational health is a starting point. If the employee has been forgotten about then be honest and say so, quickly followed by an apology and an offer to do a home visit and to talk to them about how they are. If they have been overpaid sick pay, then their first question will be ‘do I have to pay it back?’ Legally the answer to this might be yes, practically the answer is usually no.

However, if the employee is still entitled to receive company sick pay, and it has not yet been exhausted, then dismissing them on ill-health grounds could be unfair dismissal. Tribunals often take the view that the whole idea of sick pay is to enable an employee to recover. There may be difficult cases when it is clear that an employee, very early on, is never going to recover and so not able to fulfil their part of the employment contract.

Another key consideration is the risk of disability discrimination. A ‘disability’ under the Equality Act 2010 is a mental or physical impairment which has a long term, substantial and adverse effect on their ability to carry out normal day to day activities. Long term means that it has lasted or is likely to last for at least 12 months. So, if the employee has already been away for 12 months then it is much more likely that they will be considered to have a disability. Whilst some conditions are automatically a disability such as cancer and other progressive illnesses. Other conditions which have been serious enough to keep an employee out of the workplace, is potentially going to be a disability.

Whilst the law does not require employers to continue to employ those who are unable to carry out the role they have been employed to do, if they have a disability then you will be expected to make reasonable adjustments to any part of their role which places them at a disadvantage compared to those without disabilities.

Finally, dismissing an employee on ill-health or capability grounds will likely be unfair (and potentially discriminatory) unless an employer has medical evidence to support their view the fact that the employee will be unable to return to work within a reasonable period, despite reasonable adjustments.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

As this week sees Valentine’s Day, what could be more sobering than a warning of the dangers of office affairs?

February 13, 2017 at 9:00 AM

Around one in five of married couples meet at work - if the evidence of divorce petitions are anything to go by, and with the increasing number of workplace affairs involving a colleague or client, the percentage of people who meet at work and have an affair is likely to be far greater than this.

An unexpected Valentine’s card from a colleague is bad enough but when workplace affairs go wrong, the fallout can be significant.

Cards and Letters for Valentine's Day

As pressure grows to spend more time at work, for some, the office becomes the focal point of their life and one of the main ways to meet people: working late in the office turning around documents; team drinks after work to celebrate the end of a deal; sending a flirty email...

Affairs at work are nothing new, yet they continue to cause headaches for HR. Those involving a senior and a junior member of staff can cause particular problems. The rumour-mill of truths and untruths around an affair can unsettle teams and departments, upset the dynamic, affect morale and productivity and leading to calls of favouritism and even discrimination.

Employers need to tread a fine line between protecting the business and interfering in an employee’s private life. Some businesses have policies and procedures to ban workplace relationships (the “anti-hanky-panky-policy”), though it is more common for employers to require relationships are declared to take appropriate action to avoid conflict or difficulties in line management from occurring. The danger with outright bans is that employees will often carry on in secret with the potential to do harm to the business.

A relationship that is out in the open is far easier to deal with - usually by ensuring the couple do not work together and minimising any risk of favouritism or discrimination.

The picture is more complex for ‘regulated’ professions, or where an individual has special responsibilities – like in the police, healthcare, education and banking. A dentist who had a long affair with a nurse was suspended by the General Dental Council for four months for conduct described as "unprofessional, inappropriate and not in the best interests of patients". The nurse was suspended for two months for selling her story to a magazine.

For many businesses the biggest threat is a harassment or discrimination claim. The best starting place is to cultivate an open atmosphere: where employees feel able to raise concerns and if the facts are known, the business will be better able to tackle any potential issue before it escalates.

Further, it is important not to forget that discrimination, harassment or victimisation might not just arise between the parties. There may be colleagues who disapprove of the relationship, whether through morals or jealousy and treat one or both of those involved differently as a result.

Relationships between colleagues are always going to happen and, unless permitted by law, outright bans are not usually the best way forward. A mature and consistent approach clearly communicated to all staff will be easier to negotiate and minimise the risk of a costly and time consuming tribunal claims when things go wrong.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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Can temporary incapacity be a disability?

January 23, 2017 at 9:00 AM

It is well established law that for someone to be considered as disabled under the Equality Act 2010 their physical or mental impairment must have lasted or be likely to last 12 months. However, it is not always possible to identify how long an impairment might last, even though it is clear it will only be temporary in nature.

In the Spanish case of Daouidi v Bootes Plus SL the Europena Court of Justice (ECJ) considered exactly this point. Mr Daouidi had been dismissed from his job as a kitchen assistant for poor performance following a fall at work that had resulted in a dislocated elbow.

Elbow X-Ray

He brought a claim, which included disability discrimination - his elbow was in plaster and prognosis uncertain. The Spanish Court accepted he was dismissed because of his incapacity but asked the ECJ for guidance on whether the temporary incapacity could amount to a disability.

Although the ECJ found that a temporary incapacity for an indeterminate time does not in itself mean it is long term, it may be possible to establish a potential disability where there is no clear short-term prognosis. Whether or not that was the case would turn on the evidence available at the time.

This means that what might appear to be a fairly straightforward injury such as broken or dislocated bone carries the risk of a finding of a disability if the recovery is significantly prolonged. Depending on the circumstances employers may want to consider seeking medical advice before dismissing.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Employers ‘unaware’ tribunal verdicts will be made public in 2017

January 19, 2017 at 9:00 AM

Few businesses are ready for a major change in the reporting of employment tribunal verdicts when members of the public will be able to search online for tribunal judgments.

At present, judgments are only available by request or in person from HM Courts and Tribunals Service. It is anticipated only new verdicts will be published. The service will be free to users.

Computer Keyboard

The new regime will increase transparency and highlighting malpractice. The senior president of tribunals has said the online access is part of the principle of “open justice”.

However, employers should be wary of the risk of reputational damage from verdicts being made available. There are no real advantages to employers – as there is little public interest when they win.

Over time, online judgments might give potential claimants the confidence to start proceedings should they spot patterns of previous litigation. Some employers might be tempted to search the tribunal database as part of the recruitment process, raising fears of unofficial “blacklisting” of previous litigants.

Claimants might feel rewarded when they see their day in court publicised, and the risk of publicity may encourage some employers to settle where cases are finely balanced.

Generally, employers shouldn’t be at the tribunal if they think they are going to lose. Nearly all hearings are public - so dirty washing has always been visible to a degree. This just makes it easier for more people to find information if they have the time to trawl through.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Double Jeopardy – punished twice for the same misconduct

January 17, 2017 at 9:00 AM

Can an employer re-investigate the same allegations against the same employee?

Common sense probably tells you that there is something inherently wrong with this idea. However, in some circumstances, a re-investigation and a second sanction can be fair. This happened to two social workers involved in the Baby P.

Employment Appeal Tribunal

The case of Christou and anor v London Borough of Haringey [2013] EWCA Civ 178 was brought by the two social workers involved in the Baby P case. They were investigated following his death, resulting in a written warning each. A new director was appointed and after a report and further investigation of their roles, they were both dismissed. They brought claims for unfair dismissal with part of their claim being that they had already been investigated, and it was unfair that a second investigation into the same allegations was undertaken.

The Tribunal dismissed their claims. Their appeal to the EAT was also dismissed – the disciplinary procedure did not constitute an adjudication between the parties.

And then the Court of Appeal...

The two main grounds of appeal were res judicata (double jeopardy) – the matter had already been dealt with at a disciplinary hearing which should bar the second disciplinary process and that it was an abuse of process to subject the social workers to a second set of procedures.

The Court of Appeal dismissed the appeals: the first investigation had been an informal one, and not conducted under the full disciplinary procedure. Further, the first investigation had been inadequate and more allegations had been brought to light after its conclusion, such that the two investigations focused on different matters.

The court also noted that there was no legal barrier to investigating the same issue twice and doing so didn’t necessarily make a dismissal unfair. The decision to re-investigate simply had to be a fair decision in light of all the circumstances.

It comes down to the same familiar principles: was the decision to re-investigate a fair one? If it was, then an employer can indeed re-investigate an employee.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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