Employment Law Update Freeth Cartwright LLP

1. Employment Law Update Freeth Cartwright LLP David Potter 25 June 2012

2. Agenda Difficult employment issues • Short and long term sickness absence • Disability Discrimination Case Update Future Legislation / Changes

3. Short term sickness management Problem: An employee with a history of repeated short-term sickness absence for minor illnesses is off again. You are considering dismissal. What factors should you bear in mind?

4. Short term sickness management • Length / frequency of the absences • Effect on the business • Underlying medical condition? • Likelihood of improvement? • Length of service • Size and resource of organisation

5. Short term sickness management Problem: Monday morning: David has called in sick. Tuesday: David’s colleague informs you that David had put a comment on Facebook about his long weekend away.

6. Short term sickness management • Is this a genuine absence? • Is it a disciplinary issue? • Can we obtain any evidence? • David’s past disciplinary/sickness record?

7. Short term sickness management Problem: An employee with a history of ‘stress and depression’ has been off sick with the same condition for the past two months. The absence is covered by a fit note. You do not know they will return and this is having a huge impact on the team.

8. Short term sickness management • Maintain contact, consider home visits, keep notes of meetings • Consider adjustments, alternative employment • Medical investigation regarding nature of illness, effect on work, ability to do other work, prognosis, timescale for recovery

9. Disability Discrimination Problem: An employee has a poor sickness record, is often late and spends a lot of time away from his desk. His sick notes says he had Irritable Bowel Syndrome’. Stress aggravates his condition.

10. Disability Discrimination • Is this a disability? • Meet with the employee • Support/reasonable adjustments • Confidentiality issues

11. Disability Discrimination Problem: Your sick pay policy provides for a reduction in pay after a certain number of months’ leave. Is a disabled employee still entitled to receive full pay?

12. Disability Discrimination • Full pay difficult to claim - unless absence caused by failing to make reasonable adjustments • Nottinghamshire CC v Meikle [2004] • O’Hanlon v Commissioners of HM Revenue and Customs

13. Disability Discrimination Problem: A disabled employee has applied for a transfer. Do you need to give preferential treatment compared with other candidates?

14. Disability Discrimination • Consider waiving competitive interviews - Archibald v Fife [2004] • Redeployment where no vacancy exists? • Creating a new role - Southampton City College v Randall [2006] • Swapping with another employee - Chief Constable of South Yorkshire Police v Jelic UKEAT/0491/09

15. Case law update Reasonable adjustments – not a general duty to support Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley • EAT - duty to make reasonable adjustments is not a general duty by employers to "assist a disabled person". • A duty, where a PCP places the disabled person at a substantial disadvantage compared to non-disabled people, to take reasonable steps to stop the PCP placing them at that disadvantage.

16. Case law update Misconduct via social media Teggart v TeleTech UK Limited - Northern Ireland Industrial Tribunal • Derogatory comments about an employee on Facebook breached the employer’s harassment policy and therefore the dismissal was fair. • Article 8 and 10 ECHR – Right to Privacy and Right of Freedom of Expression – considered and rejected.

17. Case law update Justifying a fixed retirement age Seldon v Clarkson Wright and Jakes (A Partnership) • Supreme Court: identified two kinds of legitimate social policy objective that have been identified by the EAT • Inter-generational fairness and dignity • Aims of the Partnership’s compulsory retirement age were legitimate • Case remitted to Tribunal on issue of proportionality

18. Case law update Misconduct which could affect future career Crawford and another v Suffolk Mental Health Partnership NHS Trust  • CoA: investigation, disciplinary process and appeal carried out by the employer must be particularly fair and thorough where the dismissal affects the employee’s future career • Guidance on issues for employers to consider before suspending an employee or reporting allegations of employee misconduct to the Police

19. Legislation update - 2012 Unfair dismissal Employees whose employment commenced on or after 6 April 2012 will need two years service before accruing the right to claim unfair dismissal or becoming entitled to written reasons for dismissal The qualifying period will continue to be one year for employees whose employment commenced before 6 April 2012

20. Legislation update - 2012 Employment Tribunals Judges may sit alone no unfair dismissal cases Judges have the power to order: deposit orders of up to £1,000 (increased from £500) and costs of up to £20,000 (increased from £10,000)

21. Forthcoming / future legislation Queen’s speech – May 2012 Enterprise and Regulatory Reform Bill • Requirement for Claimants to lodge claim with ACAS • Renaming compromise agreements as “settlement agreements” • Settlement offers Children and Families Bill • Flexible parental leave • Flexible working • Follows proposals from Modern Workplaces consultation

22. Legislation update • Compensated no-fault dismissals • Compulsory pay audits • Collective redundancy consultation • 30 or 45 days not 90

23. Legislation update Consultation on discrimination law reform • Abolishing discrimination questionnaires • Removing Tribunal’s power to make “wider” recommendations • Removal of third party harassment from the Equality Act 2012 • Consultation will close in August 2012

24. Thank you for attending Any questions?

25. Contacts: David Potter – Employment Partner Direct Dial: 0845 274 6819 Email: david.potter@freethcartwright.co.uk