June, 2019

Are managers adequately equipped to deal with absence?

With an average business cost of £522 per employee per year, according to the Chartered Institute of Personnel and Development (CIPD), the business case for tackling absence at work is clear.

Policies that help managers understand how to deal with employees who are absent, guide them through the process of establishing when they will return and dealing with return to work meetings are essential. Although sickness absence policies that address the return-to-work process are not a legal obligation, they can help establish expectations, roles and responsibilities.

The responsibilities of both managers and employees should be clearly set out, including processes for seeking medical advice when relevant. Absence policies should also outline the circumstances under which an employer may consider dismissing an employee who is on long-term sick leave, along with how cases that relate to disability are managed.

According to research, a third of workers who had a four-week or longer absence in the past five years said they had failed to receive regular communication or support from their employers while off work.

Phased return to work can also help returners cope better with their job demands as well as considering short-term redeployment.

In cases where there’s been a significant change to an employee’s ability to conduct their role due to illness, injury or disability, there’s a legal requirement under the Equality Act 2010 to review workplace risk assessments and, if necessary, amend them to identify new hazards. Having sound processes in place and training managers to communicate regularly with absent workers will reduce the extent of absence in the workplace which will inevitably reduce its cost.

  • Posted on June 2nd, 2019

Employer obligations following suspension?

Suspension is where an employee continues to be employed but does not have to attend work or do any work and usually occurs when:

a serious allegation of misconduct has arisen
there are medical grounds to suspend
there is a workplace risk to an employee who is a new or expectant mother

Suspension should not be used as a disciplinary sanction and should not be automatic when dealing with a potential disciplinary matter as normally an employee will be able to continue doing their normal role while the matter is investigated.

Suspension should be considered if there is a serious allegation of misconduct and:

the working relationships have severely broken down
there is a risk that the employee might tamper with evidence, influence witnesses and/or sway the investigation into the allegation
there is a risk to other employees, property or customers
the employee is the subject of criminal proceedings which may affect whether they can do their job.

In certain circumstances, a health professional may recommend that an individual worker is unfit to work with a particular hazard. If the hazard cannot be immediately removed, the employer should consider:

temporarily adjusting working conditions
offering suitable alternative work (at the same rate of pay and on terms no less favourable than the original role).

If it is not feasible to make such adjustments, the employer may have to suspend until it is safe to return to work.

  • Posted on June 2nd, 2019

Employee with autism discriminated against

A senior analyst on the autism spectrum has won a claim for indirect disability discrimination after his employer failed to make reasonable adjustments for his condition. The employment judge said that the employer failed to take reasonable steps to understand the employee’s disability and failed to implement two sets of reasonable adjustments, one of which was recommended by its own in-house occupational health provider.

The employee’s manager stated in tribunal that she felt compelled to hold an informal discussion with the employee about his “disruptive and loud behaviour” on his second day. After a further meeting during which the manager warned the employee about his disruptive behaviour she stated that she would hold weekly catch up meetings with the employee but these did not happen.

The employee reported that he “felt subject to distraction”, and the “noise and smells” at work caused him distress. Hefelt he was not getting support from his colleagues so he tried to cope alone and he was not given sufficient work to keep him “occupied”.

The employee went off sick and was diagnosed by his GP with an anxiety disorder.  He underwent an autism assessment and was referred to occupational health on 11 April which made recommendations for his return to the workplace, confirming his autism and detailing that he would be regarded as disabled under the auspices of the Equality Act.

A welfare meeting was held to discuss the employee’s ability to attend work and followed it up with a letter stating that his absence “fell short” of the employer’s attendance requirements and mentioned of the possibility of offering him a lower-grade role.

After a difficult return to work in which the employee felt unsupported and ignored in terms of the recommendations to support his return, he brought complaints to the employment tribunal of indirect discrimination on the grounds of his disability and failure to make reasonable adjustments for his autism.

The Judge ruled in favour of the employee saying the employer failed to implement reasonable adjustments, inappropriately used its capability procedure and used “dismissal as a tool to rid themselves of a disabled employee”.

This demonstrates the need to follow professional advice from occupational health, to make reasonable adjustments to support employees with a disability and to ensure that absence is not used in a disciplinary setting when it is directly linked to a disability.

  • Posted on June 2nd, 2019

Are employers entitled to make pay cuts?

An employer cannot usually impose a pay cut unilaterally on employees. Generally, it is unlikely an employer will be able to lawfully impose a pay cut without consulting with employees first. An employer would also need to ensure that any reduction in pay did not fall below the national minimum wage requirements for the hours worked. 

Sometimes it is necessary to ask employees to take a pay cut to make the business viable, if it is loss-making for example. If more than 20 employees are affected by the proposals to cut their pay, an employer is legally obliged to consult with employee representatives about the changes. If an employer does not do so, the affected employees can bring claims for a failure to properly consult while still employed and claim up to 90 days’ pay as a protected award. 

If employers want to reduce pay for another reason – such as the employee underperforming, not meeting targets or earning more than the organisation can afford – they need to consult with employees. If they have more than two years’ service, the employee acquires rights not to be unfairly dismissed and can bring a constructive unfair dismissal claim. 

However, with less than two years’ service, if an employer simply reduces pay without consulting with the employee, they may try and argue they been subjected to unauthorised deductions under the Employment Rights Act 1996. Consulting with employees and reaching an agreement is best to avoid these claims.

During the consultation process, employers should explain the business case for the reduction and send this in writing to the employees if required to obtain their agreement. Ultimately, if they do not agree, their employment could be terminated by giving them notice and offering a new contract of employment with the new salary dated from the expiry of the notice period.

  • Posted on June 2nd, 2019

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