No, not England’s World Cup performance.
It’s often very difficult for employers to decide whether the medical condition that a member of staff raises is a disability as defined by the Disability Discrimination Act. The prudent approach is if in any doubt, consider whether ‘reasonable adjustments’ can be made to facilitate them in their role.
In the recent case of J v DLA Piper UK the EAT looked at whether a GP’s advice on whether J’s depression was a disability could be disregarded in favour of the advice of a specialist. J applied for a job with DLA Piper, but was rejected once she told them that she suffered from depression. The EAT said that a Tribunal (and therefore an employer) should place value on the diagnosis of the employee’s GP, and whether someone has suffered the condition in the past (because of the ‘likely to recur’ consideration).
There is no statutory definition of ‘mental impairment’ and in considering whether J’s condition had an impact on her ability to carry out normal day to day activities, and in particular her ability to concentrate, the Tribunal should have taken into account her GP’s evidence. A GP is fully qualified to express an opinion on whether a patient is suffering from depression, as depression is a condition very often encountered in general practice. Whilst the advice of a specialist may be more valuable, the advice of a GP should not be disregarded if the evidence of a specialist is not available or is inconclusive.
If someone informs you as part of the recruitment process that they suffer from depression, then beware. Of course you may not have offered them the job anyway, but do ensure that you can objectively justify such a decision. If you offer someone a job, and only then find out about their medical condition, it would be unwise to withdraw a job offer without first taking legal and medical advice. GP’s are often sympathetic towards their patients, and this may affect the opinion they express. If you think this might be the case, go directly to a suitably qualified specialist.
James Carmody
Tuesday, June 22, 2010
Monday, June 14, 2010
Fake Sick Certificates. Without Prejudice Communications
Fake Fit Notes:
As you know ‘Fit Notes’ replaced GP ‘Sick Notes’ in April 2010 under which a doctor may give a ‘may be fit for work’ statement if they think that their patient’s health condition could allow them to work if they got suitable support from their employer. GP’s can also give recommendations to enable this to occur.
The feedback I have received so far is that very little has changed; GP’s are still reluctant to make such recommendations in the majority of cases and furthermore the new fit notes apparently look like they could have been produced by anyone with a word processor. This is worrying because Personnel Today report that a website called Doctorsnotestore.com is selling fake fit notes, written on official doctors' notepaper, with an authentic-looking stamp. Faking a GP certificate would of course be fraudulent and could result in dismissal for gross misconduct. You might become suspicious if the GP surgery on the note paper is different to the employee’s normal surgery, but fake certificates could be difficult to spot.
Rewarding Long Term Staff:
I am grateful to Harris & Co accountants (www.harrisandco.uk.com) for informing me that non-cash rewards (free of tax) for long service can be paid. This is up to £50 per years service to a maximum of £1,000 for 20 years service. However there are apparently some complicated rules around this, so you should take advice before attempting to put such a scheme into effect. Though unlikely to be of interest to city bankers, this tax break could be worth looking into if you do have long-serving members of staff.
Without Prejudice’ communications:
Some employers think you can say anything to an employee as long as it you first say the conversation is ‘without prejudice’. That is not strictly speaking the case.
In Woodward v Santander, the EAT has recently held that the 'without prejudice' rule (meaning such communications cannot be referred to in open court) will not apply where there has been 'unambiguous impropriety' and even then only in the very clearest of cases, for example where without prejudice discussions were used to cover up perjury or blackmail.
Nonetheless employers would be wise to only say such things to an employee that they would be willing to justify if it came out in court. For example, if someone is charged with gross misconduct, don’t say ‘take this offer or we’ll sack you’. Do say ‘if you don’t accept this offer, we will pursue a fair disciplinary procedure against you which may result in your dismissal’.
As you know ‘Fit Notes’ replaced GP ‘Sick Notes’ in April 2010 under which a doctor may give a ‘may be fit for work’ statement if they think that their patient’s health condition could allow them to work if they got suitable support from their employer. GP’s can also give recommendations to enable this to occur.
The feedback I have received so far is that very little has changed; GP’s are still reluctant to make such recommendations in the majority of cases and furthermore the new fit notes apparently look like they could have been produced by anyone with a word processor. This is worrying because Personnel Today report that a website called Doctorsnotestore.com is selling fake fit notes, written on official doctors' notepaper, with an authentic-looking stamp. Faking a GP certificate would of course be fraudulent and could result in dismissal for gross misconduct. You might become suspicious if the GP surgery on the note paper is different to the employee’s normal surgery, but fake certificates could be difficult to spot.
Rewarding Long Term Staff:
I am grateful to Harris & Co accountants (www.harrisandco.uk.com) for informing me that non-cash rewards (free of tax) for long service can be paid. This is up to £50 per years service to a maximum of £1,000 for 20 years service. However there are apparently some complicated rules around this, so you should take advice before attempting to put such a scheme into effect. Though unlikely to be of interest to city bankers, this tax break could be worth looking into if you do have long-serving members of staff.
Without Prejudice’ communications:
Some employers think you can say anything to an employee as long as it you first say the conversation is ‘without prejudice’. That is not strictly speaking the case.
In Woodward v Santander, the EAT has recently held that the 'without prejudice' rule (meaning such communications cannot be referred to in open court) will not apply where there has been 'unambiguous impropriety' and even then only in the very clearest of cases, for example where without prejudice discussions were used to cover up perjury or blackmail.
Nonetheless employers would be wise to only say such things to an employee that they would be willing to justify if it came out in court. For example, if someone is charged with gross misconduct, don’t say ‘take this offer or we’ll sack you’. Do say ‘if you don’t accept this offer, we will pursue a fair disciplinary procedure against you which may result in your dismissal’.
Monday, June 7, 2010
World Cup Fever Grips The Nation
Every four years or so, members of staff mysteriously absent themselves from the office for the nearest pub with a big screen to watch the latest World Cup game. If England go all the way, the tension will be unbearable for those who are interested in the beautiful game, and unendurable for those who aren’t.
The first two England fixtures seem to have evening kick-offs, one on a Saturday and the next on a Friday, so the chances of staff phoning in sick with sore heads the next day are minimised, at first at least. England then plays Slovenia on Wednesday 23rd June at 3pm UK time. ACAS has published guidance for employers for this crucial period between the 11th June and 11th July, and their watchword is ‘use teamwork to get the best out of each other and, where possible, find compromises that will keep everyone happy’. Its advice to employers is to be:
- Flexible, where possible - for example, by altering start and finish times during the working day or allowing longer lunch breaks
- Clear about what you expect from employees - in terms of attendance and performance during the World Cup. Managing employees expectations of what might be possible is key to keeping them onside
- Communicative - start talking to each other now about the World Cup and how you hope to manage leave and working hours
- Honest - if you cannot accommodate any changes to your work practices then say so. Also, you may need to remind employees that any special arrangements for watching matches are only temporary
- Fair - you need to be seen to be fair about the way you respond to requests for time off and avoid favouritism.
It’s worth keeping an eye on any games which may clash with work, and to remind staff if necessary that throwing a sickie after games will be frowned upon. Remember, many members of staff may support other national sides, and should be treated equally with England supporters. Enjoy!
The first two England fixtures seem to have evening kick-offs, one on a Saturday and the next on a Friday, so the chances of staff phoning in sick with sore heads the next day are minimised, at first at least. England then plays Slovenia on Wednesday 23rd June at 3pm UK time. ACAS has published guidance for employers for this crucial period between the 11th June and 11th July, and their watchword is ‘use teamwork to get the best out of each other and, where possible, find compromises that will keep everyone happy’. Its advice to employers is to be:
- Flexible, where possible - for example, by altering start and finish times during the working day or allowing longer lunch breaks
- Clear about what you expect from employees - in terms of attendance and performance during the World Cup. Managing employees expectations of what might be possible is key to keeping them onside
- Communicative - start talking to each other now about the World Cup and how you hope to manage leave and working hours
- Honest - if you cannot accommodate any changes to your work practices then say so. Also, you may need to remind employees that any special arrangements for watching matches are only temporary
- Fair - you need to be seen to be fair about the way you respond to requests for time off and avoid favouritism.
It’s worth keeping an eye on any games which may clash with work, and to remind staff if necessary that throwing a sickie after games will be frowned upon. Remember, many members of staff may support other national sides, and should be treated equally with England supporters. Enjoy!
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