Tag: Disability

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Disability Duty of Care Employment Law Equality Act 2010 Health and Safety HR Lousha Reynolds Mental Health Neurodiversity Reasonable Adjustments Risk Assessment Sick Pay Stress

Stress at Work: More than just a bad day

Woman with head in her hands leans over a desk with a laptop in front of her

As we mark Stress Awareness Week 2026, we’re looking at the legal framework that governs mental health in the UK workplace.

Stress isn’t just a HR issue. It’s a significant legal responsibility. Whether you’re managing a team or navigating your own workload, understanding the boundaries of the law is essential for a healthy, compliant work environment.

1. The legal duty of care

Under the Health and Safety at Work etc. Act 1974, employers have a statutory duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees. This isn’t limited to hard hats and trip hazards. It includes mental wellbeing, too.

  • Risk Assessments: Just as you’d assess the dangers of a faulty wire, you must assess the risk of work-related stress.
  • The Management Standards: The HSE (Health and Safety Executive) outlines six key areas that, if not managed, lead to poor health and reduced productivity: demands, control, support, relationships, role, and change.

2. When stress becomes a disability

While stress itself isn’t a disability, the effects of prolonged stress, such as clinical depression or anxiety disorders, often meet the criteria under the Equality Act 2010.

An employee is considered disabled if they have a physical or mental impairment that has a “substantial and long-term adverse effect” on their ability to carry out normal day-to-day activities.

What this means for employers:

  • If stress triggers a disability, you have a legal obligation to make reasonable adjustments. This might include:
    • Flexible working hours or “soft” start times.
    • Redistributing certain tasks to other team members.
    • Providing a quieter workspace or more frequent breaks.

3. Avoiding a personal injury claim

If an employer is aware (or ought to have been aware) that an employee is struggling and fails to act, they risk a claim for negligence. For a claim to succeed, the psychiatric injury must have been “reasonably foreseeable.”

The Red Flag Rule: If an employee tells you they’re struggling, or if their performance suddenly dips alongside signs of burnout, the clock starts ticking. Ignorance is rarely a valid legal defence once the signs are visible.

4. Practical steps for Stress Awareness Week

To stay on the right side of the law (and keep your team happy), consider these three actions:

ActionPurpose
Wellness Action Plans (WAPs)A proactive tool for employees to share what helps them stay well.
Training for ManagersEnsuring supervisors can spot signs of burnout before it becomes a grievance.
Open CommunicationReducing the stigma so employees feel safe raising issues early.

Work-related stress is often a symptom of systemic issues rather than individual weakness. By treating mental health with the same rigour as physical safety, UK businesses can avoid costly employment tribunals and, more importantly, foster a culture where people actually want to work. This year’s campaign, led by the Stress Management Society, focuses on the theme #BeTheChange, encouraging small, consistent, and positive actions. We think that’s a great place to start.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

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Disability Discrimination Law Diversity Employment Law Equality Act 2010 Lousha Reynolds Neurodiversity Recruitment

Thinking Differently: Why neurodiversity is a workplace superpower

Collaborative meeting in an office around a table

With it being Neurodiversity Celebration Week (16th–20th March), we felt that it was time to move beyond awareness and start talking more about action.

In the UK, it’s estimated that around 1 in 7 people are neurodivergent. This includes ADHD, Autism, Dyslexia, Dyspraxia, and Tourette’s, among others. For too long, recruitment processes and office environments have been designed around the “typical” brain. Often filtering out some of the most creative, analytical, and dedicated talent in the workforce.

From a British employment law perspective, supporting different ways of thinking is not only the right thing to do, but is also a legal requirement. To help business leaders and HR professionals, we’ve focused in on a few things to help better recognise and support neurodiversity at work.

Under the Equality Act 2010, many neurodivergent conditions meet the legal definition of a disability, where that condition has a substantial, adverse impact on the individual’s ability to carry out their normal daily activities. In such cases, this means that employees have a right to protection from discrimination, harassment, and victimisation.

Crucially, employers have a legal duty to make reasonable adjustments. This duty is “proactive,” meaning you shouldn’t wait for an employee to reach a breaking point before offering support. By fostering an environment where adjustments are normalised, you stay ahead of legal risks and, more importantly, help your team thrive.

2. Redefining “reasonable adjustments”

Support doesn’t always mean expensive equipment. Often, the most impactful changes cost nothing but a shift in mindset. Effective adjustments often include:

  • Environmental tweaks: Providing noise-cancelling headphones, adjustable lighting, or quiet zones for deep focus.
  • Communication shifts: Giving instructions in writing rather than just verbally or allowing for camera-off meetings to reduce sensory overload.
  • Flexibility: Allowing for flexible start and end times to avoid the sensory stress of peak-time commutes.

3. Rethinking recruitment

The traditional hour-long, face-to-face interview is often a test of social performance rather than job competency. To support different ways of thinking, we can look at:

  • Skills-based assessments: Letting candidates demonstrate what they can do rather than just what they can say.
  • Clear job descriptions: Removing jargon and fluff (like “must be a great multitasker”) if it isn’t essential to the role.

4. Moving from “culture fit” to “culture enhancement”

In corporate culture, we often talk about culture fit. However, this can inadvertently lead to mini-me hiring, where everyone thinks and acts the same way. 

To truly celebrate neurodiversity, we should look to add to our work culture. A neurodivergent employee might approach a problem from an angle no one else has considered. They might spot patterns others miss or bring a level of hyper-focus that drives a project to completion. Different ways of thinking are a competitive advantage.

How to get involved this Neurodiversity Celebration Week

This week is a fantastic opportunity to kickstart the conversation. You can:

  • Educate: Host a lunch-and-learn or share resources from the Neurodiversity Celebration Week website.
  • Listen: Create a safe space for employees to share their experiences (if they wish) and what support looks like for them.
  • Audit: Review your internal policies, from HR handbooks to your physical office layout, to see if they are inclusive of all brain types.

Neurodiversity isn’t something to be fixed or managed. It’s something to be celebrated. When we design a world that works for neurodivergent people, we inadvertently create a better, more flexible, and more productive workplace for everyone.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

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Anna Denton-Jones Disability Discrimination Law Employment Law Reasonable Adjustments

Knowledge November 2024

Woman reads a book in a library

Around this time each year, we focus on an in-depth employment law topic. This year in Knowledge November, we’re deep diving into reasonable adjustments for those with a disability. Click below to view the latest editions:

Knowledge November 2024 – week 1

Knowledge November 2024 – week 2

Knowledge November 2024 – week 3

Knowledge November 2024 – week 4

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Reasonable Adjustments Right to Work

Reasonable adjustments for a disability

View of the City of London at sunset

I have had a handful of recent cases where Occupational Health have advised employers in relation to employees with anxiety problems that the employee’s duties exacerbate their condition.

In all of these cases a recommendation has been reducing telephone duties so that the employee is taking less calls during the day or completely stopping telephone duties altogether so the employee is, for example, focusing on emails rather than telephone calls. In these cases, the employer has done entirely the right thing in trying to follow the Occupational Health advice, adjusting the duties accordingly, but there has been no plan for the long term. What is accommodatable initially and what is planned for when, after a few months, the employee has got into the habit of not dealing with telephone calls either at all or dealing with only a few? If you aren’t careful you end up in a situation where the employee is not performing large parts of their role and everyone is stuck.

Rather than agreeing outright to the adjustments, it may be sensible to agree to a temporary adjustment with a discussed plan for how you get from that place of a reduced requirement to carry out a particular activity and back to the contractual duties being performed.

To put it another way, given the cost it takes to support somebody’s mental health to make adjustments, it is misleading to alter things that are not going to be able to be accommodated in the long run. That just creates false expectations and could be achieving more harm than good over time.

Alternatives to reducing the duties completely might be:

  • Less calls, so allowing more time between calls in order to take breaks;

  • If there have been difficult calls, having a strategy for what steps will be taken around managing the feelings that arise from those difficult calls; maybe discussing it with the manager or taking a time out;

  • Other steps that might be agreed as part of a work related action plan.

Remember Occupational Health are just providing you with suggestions – it is up to you to decide, as an employer, whether or not you can accommodate those suggestions. It is possible that you will have roles within your organisation that cannot actually be adjusted to prevent some core duty of that role taking place. In that scenario you might actually be saying no you can’t make a particular adjustment because it is not reasonable to do so.If we aren’t making an adjustment then we need to be able to justify why not to a Judge, if that ever became necessary, so having evidence to back up that decision will be useful. Is there  evidence of how many phone calls a day are taken in that role?  What is the proportion of the day spent doing other activities? Are the phone calls critical to generating the work that the person then does?

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Protected Characteristics Reasonable Adjustments

Disability and reasonable adjustments

View of the City of London at sunset

If as a result of somebody’s disability they become unable to do the current role that they are employed in and the employer is looking to exit the employee from that position, they are obligated to look at alternative employment. This is the case in unfair dismissal law, before you even think about the disability angle.

In a recent case (Miller v Rentokil 2024 EAT 37), the particular employee concerned had multiple sclerosis, which is a deemed disability under the Equality Act 2010, a bit like cancer, ie. the employee does not have to jump through hoops to show that there is a substantial disadvantage, has a long term effect and has difficulty with normal day to day activities. They are deemed as disabled, so we move directly to consider how they have been treated.

Once the employee has a disability, then the duty to make reasonable adjustments kicks in. In this case, the employee was a field based pest controller and the role involved him working at heights for 40% of the time. He could no longer do this and could only work very slowly. This particular employer looked at other jobs within the organisation and put him forward for an administrator role but decided not to recruit him and dismissed him.

He claims that failing to place him in the administrator role on a trial basis amounted to a failure to make a reasonable adjustment. The Tribunal upheld his claim, as did the Employment Appeal Tribunal. The burden was on the employer to show that it was not reasonable to have put that person into the role on a trial basis. They clearly couldn’t convince a Tribunal of this. On an objective assessment clearly they believed that he met the essential requirements of the job and a trial could have been successful.

The way I look at it, the employer is going to have to convince the Tribunal why it couldn’t do this, and why the employee couldn’t be trained into the role, particularly when it is a large employer. For example, somebody who isn’t used to using computers on a day to day basis might be trained and adapted into doing so.

In this particular case, the employer had actually set tests in verbal usage and maths in relation to their standard interview process. These tests were ones that the employer applied to everybody applying for roles and the Claimant scored 16 out of 30 in the verbal usage test and 7 out of 30 in the maths test. It was clear that the employee didn’t have experience using Excel, the spreadsheet programme, which perhaps explains why the decision maker in the case, a recruitment manager, decided not to slot the employee into the vacancy. It did not however consider any retraining or any trial.

In the case, they went back to Archibald v Fife Council from 2004 and Lady Justice Hale’s summation that making reasonable adjustments requires the employer to treat the disabled person more favourably than others. This too was the case of a manual worker no longer able to carry out her duties for mobility reasons. Lady Justice Hale pointed out that there is no law against discriminating against people with a background in manual work but it might be reasonable for an employer to have to take the difficulty that that person would face into account when considering the transfer of a disabled worker who could no longer do that type of work. Essentially I think that means being more patient and accommodating with someone making a transition.

In this particular case, the administrator role was a more junior one than the technical role the employee had taken on previously. They took into account the fact that his technical knowledge and experience in doing the manual job would actually assist him in being able to be an administrative support worker to those other colleagues doing that role.

They weren’t unsympathetic to the employer having concerns about whether or not he could do the role, but the key to assessing that would have been the trial period.

The other flaw in the employer’s process was not just slotting the employer into that trial. Instead they seemed to have just treated him as any other applicant for the role and possibly even put him up against other people in a recruitment process. The duty to make reasonable adjustments is about prioritising the employee.

The length of the trial period that the courts were talking about in this case was a 4 week trial. Given that is actually quite a short period, it would be wise to pay an extra month’s salary whilst assessing somebody’s suitability in an alternative position rather than dismiss.

Anna Denton-Jones
Refreshing Law

Categories
Disability Employment Law Employment Rights Act 1996 Health Conditions Mental Health Reasonable Adjustments Return to Work Sick Pay

Changes and guidance on fit notes for employers and line managers

View of the City of London at sunset

The government has just published changes to its fit note guidance for employers and line managers. It even included a handy checklist so that employers can avoid painfully drudging through the lengthy (4,462-word) document. The checklist includes the necessary steps and information that employers should have at their disposal when an employee has been issued a fit note.

Firstly though, what is a fit note? It’s a note from a certified healthcare professional who has determined after consultation with an employee, whether or not they ‘may be fit for work’ or are ‘not fit for work’. A fit note allows employers to discuss with their employees any health conditions that may prevent them from undertaking their work as usual. It also gives employers the chance to have an interactive discussion with their employees to establish tailored measures suited to both parties going forward.

The changes to this guidance as of 2022 state that where these fit notes had previously been required to have a signature of ink, they are now moving forward (as we all are) to accepting just the name and profession of the issuer. This enables the fit notes to be received and sent digitally. The DWP also expanded their accepted list of healthcare professionals who can certify the notes to include nurses, occupational therapists, pharmacists, and physiotherapists. It should be noted that although digital notes are embedded in primary care settings (GP), they are not yet in secondary care settings (hospitals), and so a pre-printed note may still be used by employees recently discharged from hospital.

There are a number of general rules that surround fit notes, so I’ll just outline the important ones to familiarise yourself.

In the first 7 days of sickness, employees can self-certify. If your organisation requires medical evidence within this time, any costs incurred by the employee for accessing a healthcare professional will be yours to cover eg:- where there has been a pattern of absence say on a Monday and Friday and you tell the employee that any further absence on these days will require a fit note.

The length of a fit note can cover a maximum of 3 months at a time during the first 6 months of sickness. Any specific time decided will be determined by the clinical judgement of the healthcare professional.

Private (non-NHS) healthcare professionals can produce reports like a fit note which can be considered. Private medical certificates or the Allied Healthcare Professionals Work Report can be accepted with no further need to obtain a further note.

Fit notes can come in a variety of ways, whether that be computer-generated and printed out, or sent digitally to your employee. Digital fit notes will include a barcode so that they can be scanned by employers and added to sickness records.

Now onto the fitness for work assessment and what that means for employers. The healthcare professional will state whether the employee is fit for work or not, and the length of time that any adaptions are required/the amount of time the employee is unable to work for. If they ‘may be fit to work’, the healthcare professional will give general recommendations on adjustments to be made for the employee to work safely or return to work entirely. These recommendations are not binding and if the recommendations cannot be implemented given the nature of work, the fit note can then be used as evidence for sick procedures.

General adaptions you may choose to explore as an employer include:

  • Phased return to work

  • Altered hours

  • Amended duties

  • Workplace adaptions

While at first glance these fit notes may appear to be potentially obstructive, by supporting your employee to stay or return to work you may actually avoid absence costs and minimise disruption for your organisation. Having an open discussion with your employee about adjustments will serve to create a more trusting work relationship that can only benefit both parties!

Martha Regan
Refreshing Law

 

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010

Disability cases — Being able to defend them

Royal Courts of Justice, London

A recent case involving HMRC illustrated some key messages for me about defending a disability case.

In McAllister v Revenue and Customs Commissioners, the employee worked for HMRC for 7 years. He suffered from anxiety and depression and was off work for long periods of time, although some of these absences were not related to his mental health issues. In the last 24 months of employment he had been off for 245 days over 23 different occasions. At the time of dismissal, he had been off for 7 months straight. Often employers want to know “are we in safe territory to dismiss?”. With numbers like that, I’d be saying “why are you still employing?”.

The employer concluded that that level and regularity of absence impacted on productivity and staff morale (all reasonable adjustments had been exhausted). It therefore decided to dismiss. The employee would ordinarily have been entitled to a payment under the Civil Service Compensation Scheme, but the amount paid to him was reduced by 50% because they were penalising certain behaviour. That behaviour included failure to answer calls, delaying returning relevant forms, displaying disruptive behaviour and turning up late during a phased return to work.

Unsurprisingly, the employee appealed the penalty and his award was increased to 80%. He also claimed discrimination arising from disability under S.15 of the Equality Act 2010 in relation to his dismissal and the reduction of the payment.

The employer agreed the employee was disabled – this is not worth challenging unless there is real doubt over the employee qualifying as disabled. The employer is better off focussing on the lack of discrimination.

In such a case the narrative the employer is looking to tell the Tribunal is basically that “yes the person is disabled, look at all the things we did to look after him and level the playing field (reasonable adjustments). Unfortunately, the level of absence got so bad it followed this pattern – look how much time the employee was taking off and how frequently (see the figures above). We tried to manage it, and this is the advice we got from occupational health and this is what we did but it made no difference”.

Where you can evidence that for the Tribunal, it is then likely to find, as here, that the dismissal was a proportionate means of achieving the employer’s aim of ensuring that staff were capable of demonstrating satisfactory attendance and a good standard of attendance, which also comprised the aims of the maintenance of a fair, effective and transparent sickness management regime, and the efficient use of resources. The Tribunal had found that M’s absence had a very real impact on HMRC’s use of resources, in particular, on time management and staff morale.

If you think about the compensation scheme, it is a benefit – to get a disability claim off the ground you have to be able to show an act of unfavourable treatment – here the employee failed to do so as follows: the relevant treatment was the payment to the employee, the object of which was to compensate the jobholder for loss of employment that is beyond his or her control. That was made because of dismissal due to disability-related absence and disability was behind that. However, being treated as entitled to a payment– was not unfavourable treatment; if anything, it was more favourable than it would have been if the employee had been dismissed for a reason other than his disability. This shows it is key to fighting cases to really drill down into the specific wording of the law – just because someone feels aggrieved about something doesn’t mean they will get themselves through that successfully.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Health Conditions Mental Health Return to Work Sick Pay

Revised — Fit notes

View of the City of London at sunset

You may be aware that the categories of people who are able to sign a Fit Note for the purposes of Statutory Sick Pay and other Social Security claims has been broadened with effect from 1 July 2022, so that pharmacists, physiotherapists, registered nurses and occupational therapists are now all able to sign Statements of Fitness for Work.

The old rules that such paperwork needed to be ‘wet’ signed by the GP have also been removed so it is now possible for the electronic generation of this paperwork in order to improve the way in which medical professionals are able to issue such documents. The Fit Note is still required to be signed and include the name of the healthcare professional who authorised it to be legally valid so a version that is blank isn’t genuine.

The Department for Work and Pensions has issued guidance for healthcare professionals which is called “Getting the most out of your Fit Note”.

It is interesting reading, in particular the instructions to medics to focus on fitness for work in general rather than fitness to attend a particular occupation, which suggests that it ought to be harder for somebody to achieve a state where they are unable to work at all, compared to being unable to perform aspects of their job.

The case studies are interesting as well. Particularly the fifth one called “relationship issues at work”. It gives the example of a patient complaining that she doesn’t get on with her manager, is feeling very stressed and wants to be signed off work. The medic determines in the consultation that although the situation is upsetting for the individual, they do not have a mental health condition and that they are fit for work. The medic then explains to the individual that they can see that she is being affected by work but is not in a situation where she should be issued with a Fit Note. The patient reacts badly and tells the medic that their manager has been really horrible to her and that she is finding it difficult to cope. The medic is directed to say that they appreciate that that may well be the case but to explain that the situation is not making the patient ill. If they were ill then they would be issued with a Fit Note and the medic would be acting with their health interests in mind. Instead, the medic is encouraged to explain that this is not a medical problem but a management issue and that going off on the sick will not resolve the problem or help her to find another job if that is what she decides to do. If that conversation happened, I think all employers would be relieved.

The medic is then encouraged to discuss with the individual whether they can talk to somebody at work to help resolve their problems such as speaking to HR, a Trade Union representative or speaking to ACAS. In the case study, the patient decides to approach another colleague for advice, to check the internet and to look at ACAS materials on managing conflicts at work.

Using that example, the situations we come across in HR where this is some kind of conflict or dispute in work, should not by this analysis result in somebody being signed off from work. It will be really interesting to see to what extent the medics toughen up their approach, as we all know that the stereotype is that Drs will provide a Fit Note “on demand”.

In the question and answer section of the document, it’s interesting to see that there is a question relating to “what if my patient fears job loss, stigma or discrimination if I reveal a health condition (or its effect on their work functioning) on their Fit Note?”. The answer is as follows: “if you feel that revealing a particular diagnosis or a limitation would harm your patient’s wellbeing, compromise their position with their employer, you can enter a less precise diagnosis on the Fit Note”. We have all come across examples where a Fit Note has said something like “unwell” or “stress” rather than an actual medical condition – this is why it is always worth referring somebody to occupational health to get the full picture. It reminds us that this scenario may be behind what a medic has written and that all may not be what it seems from the face of the paperwork: further exploration is necessary.

It is interesting to note that medics are encouraged to only issue bereavement related Fit Notes if somebody is genuinely so distressed by what happened to them that they are unfit for work – where they are not actually medically unwell then they should be having compassionate leave with their employer not time off sick. Again it will be interesting to see how many medics follow this guidance.

There is also further guidance for employers and line managers: Fit note: guidance for employers and line managers. Amongst other things, this repeats the position that has been the case for some while now but which I find employers are often confused by, in relation to return to work before the end of a Fit Note. The employee can come back to work at any time, even if this is before their Fit Note expires and they do not need to go back to their healthcare professional first. If somebody is coming back and you believe it is too soon or harmful in some way, then you would need to refer to occupational health for an assessment and further guidance. Where a healthcare professional assesses somebody is fit for work, they will not be issued with a Fit Note (there are some very narrow occupations where certification has to be given).

Something else that strike me about this new guidance is the emphasis that people do not need to be 100% fit to return to work because they may well be returning to work with adjustments and need to do alternative duties. That would probably surprise employees.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones COVID-19 Disability Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Health and Safety Health Conditions Sick Pay

Long COVID was a disability

Royal Courts of Justice, London

The first Employment Tribunal case to determine that an employee with long COVID was disabled within the meaning of Section 6 of the Equality Act 2010 has taken place. The employee was a caretaker and he tested positive for COVID-19 in November 2020. Initially, he was experiencing mild symptoms. After isolating, he developed severe headaches and fatigue that were so severe that after simple acts like having a shower or getting dressed, he had to lie down and recover. He struggled to stand for long periods. He couldn’t undertake household activities like cooking, ironing or shopping. He experienced joint pain, loss of appetite, a reduced ability to concentrate and difficulty sleeping. This all led to him feeling unable to socialise. His symptoms were unpredictable: he would experience an improvement, only to suffer from fatigue and exhaustion again.

In January 2022, so after a few months, his health began to improve but the sleep disruption and fatigue continued to affect his day to day activities. His notes referred to long COVID Post Viral Fatigue Syndrome. The employer obtained occupational health reports which both indicated that he was fit to return to work with a view that the disability provisions of the Equality Act were unlikely to apply. However, due to his fatigue levels and the fact that he didn’t return to work, in August 2021 because of ill-health, his employer dismissed him when he had been absent from work for 9 months.

The Tribunal has had to determine the preliminary issue of whether he was disabled at the relevant time. It has concluded that he was and that he wasn’t exaggerating his symptoms and had a physical impairment (The Post-Viral Fatigue Syndrome caused by COVID-19). The Judge found it relevant that there was no incentive for him to remain off work when he had exhausted his sick pay. They found that his symptoms were consistent with the June 2021 TUC Report into long COVID and in particular, the fluctuating nature of those symptoms. The physical impairment had an adverse effect on his ability to carry out normal day to day activities and they found that the effect was more than minor or trivial and that it was long term because it could well last for a period of 12 months when viewed from the dismissal date. In particular, they noted that the employer themselves was of the view that there was no date in sight where a return to work seemed likely.

Clearly this case does not mean that the employee will be successful in his claims of disability discrimination – at this stage he has just got over the first hurdle of proving that he had a disability. The Tribunal will have to go onto consider whether or not the dismissal was justified in all the circumstances. In doing that, they are particularly likely to take into account to what extent reasonable adjustments were explored and the process that was followed around the dismissal. This might include considering alternative employment.

Indeed, in another case, the Employment Appeal Tribunal has considered Section 15 of the Equality Act which you will recall is ‘discrimination arising from a disability’ in connection with dismissal following a period of absence. When Section 15 is raised, the Tribunal is going to be considering whether dismissal was a ‘proportionate means of achieving a legitimate aim’ of the employer. That case reminds us not to act prematurely in dismissing a disabled employee – the employer had grudgingly adopted a trial in an alternative location but failed to implement the trial reasonably or properly evaluate its success before their decision to dismiss. Where there was such an opportunity of work from a different location, a Judge is likely to find that that alternative was a less discriminatory alternative to dismissal that the employer should have taken. Clearly that wouldn’t have helped the employee with long COVID as he wasn’t able to work at all at the stage he was dismissed.

Anna Denton-Jones
Refreshing Law

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Absence Anna Denton-Jones Disability Employment Law Health Conditions Return to Work Sick Pay

Extension of who can provide an employee with a Fit Note

View of the City of London at sunset

You will all be familiar with GPs providing employees with certification that they are insufficiently well to attend work on day 8 of their absence, enabling the employer to then process, for example, statutory sick pay.

Some new regulations, snappily titled “The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No. 2) Regulations 2022″ amend the position to expand the category of people who can sign Fit Notes for the purposes of Statutory Sick Pay and making Social Security claims.  From 1 July 2022, registered nurses, occupational therapists, pharmacists and physiotherapists will also be able to sign the Statements.  The idea behind this is to reduce workload on GPs and as you can envisage the GP practice may pass some routine work to the practice nurse, for example.

However, employees are still going to primarily be thinking of their GP when they are thinking about evidence for their employer of them not being fit to attend work.

You will need to update managers on this development so that they appreciate that any paperwork they see with the four new categories of signature are genuine and acceptable.

Anna Denton-Jones
Refreshing Law