CAPABILITY SEMINAR
SICKNESS ABSENCE AND CAPABILITY DISMISSALS LAW PRACTICE AND HIDDEN TRAPS JAMIE JENKINS BARRISTER
INTRODUCTION Some figures from the CIPD 2016 Survey: • 6.3 days sickness absence per employee • £522 median cost of absence per employee • Short term absence caused by minor illness, stress • Long term absence caused by stress, acute medical conditions and mental health • 1/3 of respondents reported an increase in stress related absence. Only 1/9 noted a reduction • 2/5 of respondents claimed an increase in reported mental health problems
SICK PAY – CONTRACTUAL ENTITLEMENT • Terms relating to incapacity for work due to sickness or injury, including sick pay, must be included in the contract of employment • There is no presumption of a contractual right to sick pay, but such a term may be implied on the facts and circumstances of a particular case (Mears v Safecar Security Limited) • Where a contractual right to sick pay does not contain a provision as to duration, the court will imply a reasonable term (Howman & Son v Blyth)
SICK PAY – STATUTORY ENTITLEMENT • To qualify must have four or more consecutive days of sickness, must notify the employer of absence, and must supply evidence of incapacity. • Entitlement limit to statutory sick pay is 28 weeks in a three year period. Current amount is £92.05 per week • The vast majority of workers qualify for SSP. There are exceptions.
CAPABILITY DISMISSALS I • Capability is a potential fair reason for dismissal under section 98(2) of the Employment Rights Act 1996 • Test is whether, in all the circumstances, the employer can be expected to wait any longer before dismissing (Spencer v Paragon Wallpapers Ltd) • Employers should in the first instance take steps to inform themselves of the medical position. The requirement is to take reasonable steps (D B Schenker Rail (UK) Ltd v Doolan)
CAPABILITY DISMISSALS II • Thereafter the employer should consider the requirements of the business, the employee’s past sickness record, and whether the employee could be offered an alternative position (as per Spencer) • It is an important distinct stage in the process that the employer seeks to consult with the employee (East Lindsay District Council v Daubney) • The employer must then decide what action to take, considering all relevant factors
CAPABILITY DISMISSALS III Relevant factors may be one or more of the following: • The nature of the illness • The likelihood of the illness recurring • The length of absences and spaces of good health • The need for the work to be done by a particular employee • The impact of the absences on others who work with the employee • The adoption and use of proper policies and procedures • The emphasis on the personal assessment in the ultimate decision • The extent to which the difficulty of the situation and the position of the employer has been made clear to the employee
CAPABILITY DISMISSALS IV • No duty on the employee to provide information as to his prospects of recovery (Mitchell v Arkwood Plastics (Engineering) Ltd) • Cases where employers cause or contribute to the ill health (McAdie v Royal Bank of Scotland) • Persistent short term absence (International Sports Co Ltd v Thomson)
DISABILITY DISCRIMINATION I • Cases involving long term sickness absence will often also contain allegations relating to disability discrimination. The starting point for any such claims is that an employee must be disabled within the meaning of s.6 Equality Act 2010. • Helpful guidance was recently given by the EAT in the case of Herry v Dudley MBC as to whether work related stress can amount to a disability.
DISABILITY DISCRIMINATION II • The respective legal frameworks relating to unfair dismissal and disability discrimination warrant separate consideration. The tests often give the same result but are separate (O’Brien v Bolton St Catherine’s Academy) • It shouldn’t be assumed that the facts and arguments relating to dismissal will be sufficient for discrimination claims. Some practice points: • Allegations of discrimination should be streamlined • Properly think through and identify each PCP • Consider what reasonable adjustments could have been made • Be sure to properly identify the legitimate aim before seeking to prove proportionate means
CONTRACTUAL ISSUES • Requiring employees in robust health (Taylorplan Catering (Scotland) v McInally) • Specifying a period after which the employer can consider dismissal (Leonard v Fergus and Haynes Civil Engineering Ltd) • Frustration (Warner v Armfield Retail & Leisure Limited)
PERMANENT HEALTH INSURANCE • Implied duty of trust and confidence (Marlow v East Thames Housing Group and Ear v Cantar Fitzgerald International) • There is an implied duty not to dismiss (Aspden v Webbs Poultry & Meat Group) • There is not an implied duty not to dismiss (Lloyd v BCQ Ltd) • Not a breach to dismiss for redundancy (Hill v General Accident Fire and Life Assurance Corporation)
Manchester Sheffield 0161 214 1500 0114 273 8951 @SJBNews Chester Liverpool stjohnsbuildings.com 01244 323070 0151 243 6000
Recommend
More recommend
