- Posted Monday November 16, 2015
Case law often influences the way employees are managed, what is viewed as best practice and set a precedent for tribunals to consider.
The following is a brief round-up of a few notable cases that might help practices.
Sickness Management and Disability
Powell v Secretary of State for Work and Pensions
Organisations have been adjusting sickness management triggers for years to accommodate disabilities which could affect attendance levels however a recent case has highlighted the importance of avoiding over reliance on specific triggers.
The DWP have a sickness trigger of 8 days absence or 4 instances of absence in a 12 month rolling period. They adjusted this period to 12 days to manage an employee whose disability meant she was more prone to absence (a 50% increase in the trigger – which is a common practice for organisations managing such situations). At the end of the process, the employee had breached the final trigger by a few days and was subsequently dismissed.
The tribunal held that the claimant should have been given more time to improve her attendance and was awarded £30,388 for disability discrimination and unfair dismissal due to flaws in the appeal stage.
A more comprehensive approach should be considered when managing complex sickness conditions. In some situations there are more appropriate ways of managing attendance where, in collaboration with independent medical advice, adjustments and alterations can achieve a similar outcome as disciplinary action.
Occupational Health services can often receive a lot of criticism for the content of reports, however where Practices work in collaboration with them and provide detailed background information and specific questions, reports can help the employer to make safer, medically supported decisions. When considering dismissal for disability related absences, instead of relying on short term triggers, a more detailed assessment of the individual’s capability can often be more effective.
Norman and others V National Audit Office
A flexibility clause allowing the NAO to alter terms and conditions was challenged where it said terms were ‘subject to amendment’. The appeal tribunal ruled that the original terms should be reinstated and that any variation clauses must be clear and be written in unambiguous terms.
This case of an employer unilaterally forcing new terms following failed consultation shows that flexibility clauses do not always allow employers to change contracts without consent where the contract appears to allow. Tribunals often consider flexibility clauses only appropriate where reasonable or minor changes are being implemented (normally of a procedural or administrative nature) where the employees are not being disadvantaged.
Choice of Companion
Stevens v University of Birmingham
During disciplinary proceedings, a Professor who was also employed under a NHS contract and was not a member of a trade union, wished to be accompanied by someone from the professional defence organisation of the Medical Protection Society. As the MPS is not a trade union and the representative was not an employee of the University, the request was refused.
The high court ruled that this was a breach of the implied term of trust and confidence on the employer’s behalf. This case is particularly important where considering clinical employee requests to be accompanied. Where a union is not available, other representation from organisations such as defence societies may be reasonable (and in some cases Doctor’s can be accompanied by a solicitor where there is the possibility that they could lose their licence).
The court took into consideration:
- The severity of the allegations
- The fact that the investigating officer and witnesses could all be accompanied but there was no suitable person available to accompany the alleged
- MPS has a similar role to that of a trade union and had assisted the employee up until the formal stage
- The NHS trust would have allowed such representation where the University refused.
What about when legal proceedings begin?
Linwood v BBC
It has been revealed under a freedom of information request that the BBC spent nearly £500,000 in legal fees on a case involving unfair dismissal. The BBC was unsuccessful in its defence and had to pay damages of around £80,000 to the individual. The case highlights the importance of exploring whether a settlement out of court may be cheaper in the long run when factoring in legal fees.
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