Welcome to your quarterly employment law bulletin from Roots HR.
This quarter we update you on…
Sickness absence – fit notes
Usually the work of a GP, from 1 July 2022, new rules allow other healthcare professionals, specifically registered nurses, occupational therapists, pharmacists and physiotherapists, to sign off fit notes for the purposes of statutory sick pay and social security claims. The aim of the change is to free up GP time so they can see more patients.
Unfair dismissal – Acas uplifts
An employer should follow the Acas Code of Practice on disciplinary and grievance procedures when dealing with grievances or dismissing an employee for disciplinary reasons such as misconduct or poor performance. If the employer unreasonably fails to follow the Acas Code, the employment tribunal can increase compensation by up to 25% if it is ‘just and equitable’ to do so.
The ACAS Code does not apply to redundancy dismissals. However, a recent Employment Appeal Tribunal (EAT) case (Rentplus v Coulson), looked at whether an uplift of 25% could apply to a discriminatory dismissal that the employer had said was a redundancy dismissal.
In March 2017, and without the employee’s knowledge, the employer decided to dismiss the employee and she was frozen out of her role. In 2018, a reorganisation took place which was described as a redundancy exercise. A consultation exercise took place. After this, the employee raised a grievance about the fact that her role was redundant and complained of poor treatment; her grievance and subsequent appeal were both not upheld. She was dismissed and brought claims for unfair dismissal and discrimination. The tribunal said her dismissal was unfair and discriminatory. The redundancy process was a total sham because the decision to dismiss had been taken months before. The tribunal awarded a 25% uplift in compensation due to breaches of the Acas Code. The employer appealed, saying the Acas Code could not apply to a redundancy dismissal.
The EAT said that the Acas Code applies to ‘disciplinary situations’, not just express capability and conduct processes. It could apply to a wider set of circumstances, including situations where a potential misconduct or poor performance issue is dressed up as a sham redundancy. This created the necessary disciplinary situation and the Acas Code applied. The 25% uplift was reasonable because the dismissal process was a total sham and made in bad faith.
This case highlights the risk of an employer inventing a redundancy (or other) situation to mask the real reason for dismissal. If an employer is unhappy with an employee, for whatever reason, that should be dealt with fairly, using the appropriate conduct or capability procedure.
Discrimination
Discrimination arising from disability happens when an employer treats an employee unfavourably because of ‘something’ arising from their disability and the employer cannot justify the treatment as a proportionate way of achieving a legitimate business aim. In DWP v Boyers, the EAT examined a case where the employer had legitimate business aims but the actions they took to achieve them were found to be disproportionate.
The employee was an administrator who was disabled due to recurrent migraines. She said colleagues were bullying her which exacerbated her migraines. She asked for them to be moved, or to move herself, but requests were refused. She broke down in tears after which she was moved to a different floor and a stress reduction plan put in place. Some months later, she went off sick with stress. She lodged a grievance which was not upheld. She undertook a six-week trial working at another office, but it was fraught with IT problems and a lack of training and feedback. The employer decided the trial hadn’t worked and instructed the employee back to her usual place of work. She remained off sick and was eventually dismissed for capability. She brought tribunal claims including one for discrimination arising from disability.
The tribunal found that the employer had not properly evaluated the trial at a different office which could have avoided the employee’s dismissal. Without properly considering the trial, and the things that went wrong there, the employer could not show that the dismissal was proportionate.
This case shows if an employer dismisses an employee in such circumstances, the decision makers will need to understand (and evidence) how the decision to dismiss is a proportionate way of achieving their stated, legitimate aims. This case is also a reminder that employers must consider whether there are other, less discriminatory ways of achieving their aims – here, that was the opportunity to work from a different location.
Constructive dismissal
A constructive dismissal arises where an employer fundamentally (seriously) breaches the employment contract and the employee resigns in response to the breach.
In a recent case (Singh v Metroline), the employee was due to attend a disciplinary hearing when he went off sick. The employer thought he was making it up, despite him attending occupational health and them giving no indication that he was feigning illness. They paid him statutory sick pay rather than enhanced, company sick pay with the aim of persuading him to return to work and attend a hearing. The employee resigned and claimed constructive dismissal.
The employment tribunal said the failure to pay company sick pay was a breach of contract but not a fundamental one. The employee appealed and the EAT agreed with the employee and sent the case back to the employment tribunal for them to apply the rest of the constructive dismissal test to the facts.
This case shows that an act such as deliberate failure to pay contractual sick pay can form the basis for a constructive dismissal claim even where the employer has every intention of the employment relationship continuing.
And finally…
The B word – banter – is a word employers should dread. Good teams will thrive on a joke or two between workplace friends. However, offensive and potentially discriminatory comments can be masked as ‘banter’, indicating to the recipient that taking offence is unreasonable. A culture where banter is acceptable is likely to affect productivity and staff retention. It will also expose the employer to the risk of tribunal claims, especially harassment. Harassment is unwanted conduct related to a protected characteristic which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile or offensive environment for the employee.
The incidence of ‘banter’ being cited in employment tribunal claims as a defence to discrimination claims has increased by 45 per cent in a year and hit a record high, the Telegraph has reported recently. Earlier this year, employment tribunals found name-calling such as ‘half-dead Dave’ (in Robson v Clarke’s Mechanical) discriminatory on the basis of age.
The solution is to create an appropriate workplace culture, whatever the working environment. Employers must ensure that they have robust equalities policies on which both staff and managers are trained and regularly refreshed. Day to day line management must call ‘banter’ out, however reciprocal it may seem. Employees must be assured that complaints will be taken seriously. Banter might seem funny, but it’s anything but if it lands the employer in the employment tribunal.
