Tag: Sickness

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Anna Denton-Jones COVID-19 Duty of Care Employment Rights Act 1996 HR Return to Work

Refusal to work due to COVID-19

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A case involving an employee who refused to attend work due to COVID-19 – Rodgers v Leeds Laser Cutting Ltd caught my eye because it is one of the first decisions that I have heard about dealing with an automatically unfair dismissal claim under Section 100 of the Employment Rights Act. Section 100 (d) permits an employee who is dismissed, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, to claim automatically unfair dismissal.

In this particular case, the employee had a child with sickle cell anaemia and a 7 month old baby and was concerned that attending work would put his family at risk. The Employment Tribunal found that the employer had generally complied with all guidance as regards creating a COVID safe workplace: it was a large warehouse space, where it was possible to socially distance, face masks had been provided, guidance had been issued around hand washing and sanitiser had been provided and there were no criticisms made of the employers risk assessments or other measures put in place for COVID safety. In summary, the employee was more concerned about COVID-19 generally in the world at large as opposed to having any specific complaint about his actual workplace and how his employer had addressed those risks. In particular, the Tribunal noted that he had not made any complaint.

In those circumstances, whilst the wording used in the general Coronavirus Regulations (Public Health legislation) does use the same language and establishes that COVID-19 is a serious and imminent danger in general, the Tribunal felt that that could not be applied to this particular workplace because if you applied the logic that because COVID-19 is a general risk in the world, making every workplace dangerous, then every single employee across the country would be able to refuse to attend their workplace. For that reason and the fact that the employee had not made any specific complaints about his workplace, he failed in his complaint.

Of course, that does not mean that every employee will fail in such a claim: the TUC has reported in the week commencing Easter Monday, that their data shows that a third of all workplaces are not complying with the government guidance on COVID safe working. Clearly employees who work in those sorts of workplaces may have been successful in a similar argument.

This particular employee did not have 2 years’ service, so he was purely bringing his automatically unfair dismissal claim. However, if he had had 2 years’ service, he may well have brought an ordinary unfair dismissal claim – the Tribunal commented in this case that they would have had procedural concerns about the way in which the employer had handled the dismissal. As well as the procedural hurdle in an ordinary unfair dismissal claim, a Tribunal is also going to think about whether it would fall within the range of reasonable responses test to dismiss an employee who was worried about his family. I would suggest that the rush to dismissal in this case would probably make it unfair. An employer who issued the employee with warnings and had taken every step to work with the employee to allay his concerns, meet with him and get him back to work would be in a stronger position.

You could also see how in some cases an employee with their own disability could also have Equality Act claims if their own health was at the bottom of their refusal.

In any event, this is only a first instance decision and at some point the Employment Appeal Tribunal will have to rule on these sorts of issues and give guidance for employers but it is heartening essentially that the employee was not seen as being reasonable in this case and hopeful that the EAT will agree with the logic that general COVID risks in the world at large does not qualify as serious and imminent danger in the workplace, as every employee would be able to refuse to work.

Anna Denton-Jones
Refreshing Law

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Absence Anna Denton-Jones Burnout Disability Duty of Care Employment Law Health Conditions HR Mental Health Remote Working Return to Work Risk Assessment Video Working from Home

Video | Working from home and ill health

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing ‘working from home and ill health’ and the potential impact on individuals and businesses.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones COVID-19 Disability Duty of Care Employment Law Equality Act 2010 Health Conditions Maternity Pregnancy Reasonable Adjustments Remote Working Return to Work Working from Home

Déjà vu — Shielding

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If this feels familiar, we have been here before…

In Wales
The clinically extremely vulnerable have been advised to shield in Wales since the 22 December 2020. Shielding for the clinically extremely vulnerable will be paused on 31 March 2021. The fact that the word “pause” is being used indicates that this position may change again in the future so be prepared to be flexible.

Working from home should still be the position wherever that is possible. Where that is not possible, employers will have to take measures to make the workplace COVID secure which may involve changing the person’s duties etc.

In England
The clinically extremely vulnerable have been shielding since 5 January 2021. As of 1 April 2021, they will no longer be advised to do so and will not be eligible for statutory sick pay on the basis of being advised to shield.

The advice is still that they should continue to work from home wherever that is possible, so employers ought to be attempting to facilitate that. Where they cannot work from home, then they are advised to attend their workplace and employers will be under a duty to take measures which will reduce the risk of exposure to COVID-19 in the workplace. That may involve changing the person’s duties etc.

Both
Furlough is an option where the employer decides working from home isn’t possible. The employer would need to consider the discrimination risks associated with, for example, singling out a worker for furlough, when their category of colleague was not also being furloughed.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Menopause Mental Health Protected Characteristics

Guest Blog | The Menopause — Why should organisations bother?

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Katie Day is a Director at RDP International Ltd

Policies and guidelines around mental health are in place.

Established and clear policies have been in existence for pregnant women and parental leave for many years.

Ways of recording reasons for absence and supporting staff (via Employee Assistance Programmes for example) are well used.

The menopause.

Ah.

Not so good there then!

I find this puzzling. Not every woman will experience pregnancy, yet every woman, if she lives long enough, will experience the menopause. As we make up around 52% of the population, and around 57% of that number are of key menopausal age (between 40 and 65). That’s a lot of women who will go through this life transition!

It is estimated that absence due to menopause (where woman are not supported at work) represents a cost to the UK economy of around £7.3 million per year1.  According to the Government Report on Menopause, women at menopausal life phase are the fastest growing workforce demographic, and according to the Faculty of Occupational Medicine nearly 8 out of 10 peri- and post-menopausal women are in work.

Women are lying. Around 75% of women say they do not feel confident to cite the menopause as the reason for their absence at work, so are reporting ‘other reasons’ for their absence. They feel really bad about doing this, which further exacerbates their feelings of vulnerability. Ensuring there is a supportive workplace culture is the responsibility of the organisation, not the responsibility of the women who work there.

One in four women consider leaving their job during this life phase.

Combine the above statistics with the legal requirements of employers to support and protect staff, this is a topic that cannot be ignored within the business community.

When asked, women in the UK report the following menopausal experiences as just some that have a negative impact for them at work, there are others2:

  • Irritability: 56%
  • Poor concentration: 51%
  • Tiredness: 51%
  • Poor memory: 50%

Women want to talk with other women going through this life phase, to have more information. They want management awareness of the topic, combined with information and advice from their employer. They want access to support via training sessions and networks.

Not all the responsibility lies with the employer of course. It is shared with the woman herself. We can all take ownership of our health and find out how we can best support ourselves, navigate this transition with the maximum ease and minimum stress and emerge stronger and even more resilient.

First and foremost we need to ‘normalise’ the conversation. What do I mean by this? Well, we all need to feel comfortable talking about ‘the M word’. If, as women, we are uncomfortable verbalising our experience(s), then it is pretty much guaranteed that people around us will also feel uncomfortable. The menopause is a natural part of life, and once we accept and embrace this life transition and see it for what it is – a temporary rite of passage, we are able to recognise that we can, to some degree, sail through rather than stumble through.

Honest and open conversations are the key. We all need to acknowledge the important and valuable contribution women of menopausal age make to the business world. By ‘all’ I mean women themselves and their employers. To lose all that experience and expertise is simply bad business and poor workplace practice.

With two employee tribunals (2012 and 2018),3 both of which went in favour of the claimant (menopausal woman), organisations ignore this issue at their peril. It is increasingly crucial that employers ensure they become, and remain, employers of choice – for everyone. ‘Everyone’ must not exclude women of menopausal age.

We work with some truly wonderful organisations who have the courage to tackle this issue head on, brave enough to make the changes necessary and savvy enough to ensure they retain some of their best talent. Do you work for, or run, one of these organisations? Or is there room for improvement?

Many of our clients are considering making our Supporting people during the menopause session mandatory for every manager they employ.

More and more men within our client organisations are putting themselves forward to be a champion and a ‘point of contact’ for women. They encourage other men to learn, change and support. They are the benchmarks all people need to follow.

Let us all embrace the strength and value of this time in a woman’s life, promote the wisdom, experience and expertise of women and collaborate to create an even more resilient and successful workplace.

Katie Day

Director

RDP International Ltd

katie@rdp-int.com

RDP International works with organisations on: leadership / communication / all matters ‘midlife’

www.rdp-int.com

Join the conversation:

LinkedIn:        Midlife Matters Group

Twitter:           @Midlife_Matters

Facebook:        Midlife Matters

  1. Kleinman NL, et al. (2013)

Direct and indirect costs of women diagnosed with menopause symptoms

Journal of Occupational and Environmental Medicine 2013 Apr;55(4): 465-70

  1. Griffiths A, et al. (2013)

Menopause and work: An electronic survey of employees’ attitudes in the UK

Maturitas 76 (2013): 155– 159

  1. Merchant v BT plc (ET/1401305/11, 27 February 2012)

Reported in below:

Okill A (2017)

Time to tackle the myths and taboos of the menopause in the workplace

HR News (October 2017): http://hrnews.co.uk/time-tackle-myths-taboos-menopause-workplace/ 

Katie Day highlights the need for workplace support for menopausal women, emphasising the importance of normalising discussions and providing resources.

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Anna Denton-Jones Articles Disability Discrimination Law Employment Law Employment Rights Act 1996 Health and Safety Health Conditions Pay Return to Work Sick Pay

Can you withhold sick pay for staff with sporting injuries?

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You may have come across clauses in a sickness policy or in contracts of employment where the employer reserves the right to review the payment of contractual sick pay (and not pay) if the employee had been injured participating in a sport or leisure activity.

The London Marathon this week got me thinking about this.

I’ve previously always used the example (when explaining the clause to clients) of a keen rugby player. If they get injured on a fairly regular basis why should the employer keep coughing up when this is hardly accidental and is going to keep costing them? There are even City firms who won’t allow you to (for example) play rugby because they don’t want you coming into work on a Monday morning covered in bruises and looking like you’ve been fighting because it creates the wrong impression, but that’s another matter…

None of us go out aiming to get injured, but to what extent can an employer withhold sick pay from someone who (say) breaks a leg running in a marathon, riding a horse or riding a bike?

There is no obligation to pay sick pay over and above SSP in general. If employers choose to pay contractual sick pay they can choose how long they want to pay it for, how it is to be calculated, and any conditions attached to payment. Thus it is permitted for an employer to reserve the right not to make payment in certain circumstances as in the case of the clause we are discussing or when they say nothing will be paid until the employee has passed their probationary period.

As with so many things in employment law, firstly care has to be taken to ensure that any provision by the employer is clear so that entitlement at any given time can be calculated.

Secondly, where the matter is reserved for ‘management discretion’ care needs to be taken to treat similar cases in a similar way to prevent unfairness. When does a ‘leisure activity’ (riding a bike with a friend round the park to go for a coffee) become a sport? Maybe it’s when the activity becomes competitive? Or is it more about the level of risk involved, so high risk pursuits like skiing, white water rafting and taking your horse cross country (which are more likely to result in injury) could result in sick pay being withdrawn but not general sports?

The third consideration the employer will need to make is what signal withdrawal of sick pay will give staff. Will the invoking of the clause to withhold pay come across as harsh? Will it put people off wanting to work in the organisation because it comes across as too uncaring? Most employers are quite sensible about this for this very reason and only use it in the tiny percentage of cases where a staff member is regularly injured – like the semi-professional rugby player.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Health Conditions HR Return to Work Sick Pay Stress

An employee won’t attend Occupational Health

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Often employees will refuse to attend Occupational Health or to provide consent for the employer to write to their GP.  Sometimes they believe that this is a delaying tactic, sometimes they probably know that they won’t like the outcome or the information that will be provided, but where does this leave the employer?

If you’re writing to a GP or consultant who is responsible for the care of their patient, in the absence of the employee’s consent in relation to the Access To Medical Reports Act 1988, then the employer is stuck and unable to obtain information from that physician.  Sometimes employees don’t realise that in the absence of their co-operation, you will still be entitled to make decisions, for example about whether or not they are capable of performing the duties you engaged them to do.  In such a scenario sometimes by explaining to an employee that you will have to make decisions about them in a vacuum, given that they won’t consent, they change their mind and agree to your request.  An alternative for the employer in this scenario is to actually require the employee to attend an Occupational Health physician as, strictly speaking, the Access To Medical Reports Act won’t apply where the employer is asking for a one-off report because that medic will not have been (or be) responsible for the individual’s clinical care.  If the employee attends an appointment with such a doctor then they will have implicitly consented to disclosure to the employer of any report resulting from that examination.  (Kapadia -v- London Borough of Lambeth [2000])

In order to protect themselves, employers will often include a clause in their contract of employment that requires an employee to co-operate and attend a medic where the employer wishes for a report to be written.  Technically, an employee’s failure to comply with a reasonable instruction in this regard would be a disciplinary matter.  Unfortunately for the employer, failing to follow this reasonable instruction is unlikely to form grounds for dismissal as opposed to other disciplinary action such as a warning.  Even if there had been prior warnings in this regard, an employer is going to have to show that dismissal for failure to co-operate is within the band of reasonable responses as well as following a fair procedure in respect of the disciplinary in order to avoid any unfair dismissal claims.  Thus it would become central to such a case to know why the individual was refusing to co-operate and whether or not that was reasonable.

It is probably going to be safer for an employer, instead of going down the disciplinary route, to consider dismissal for incapacity.  If the employer has done all it reasonably can to obtain medical evidence and the individual continues to withhold consent, a decision to dismiss may well be within the range of reasonable responses (Elmbridge Housing Trust -v- O’Donoghue [2004])

When it comes to looking at fairness in such cases, the fact that the employer had an express contractual term will be useful.  It will also have been useful to have warned the employee what the consequences of failing to co-operate may be.

In obtaining an employee’s co-operation it may also be useful to explain to them that, if they are concerned about the contents of a report, they can provide limited consent.  For example, an employee might be worried about revealing information about past illnesses that are not relevant to their current condition.  The employer might, in these sorts of cases, agree to limit information to a certain time period or to confine reporting to the extent to which the employee is able to do their job.

Whilst it might be frustrating to have employees who won’t co-operate, being patient, making a number of attempts to obtain information and persuade the employee before making decisions in the absence of medical advice, and generally acting in a reasonable manner, is likely to put you in a favourable light.

Anna Denton-Jones
Refreshing Law