CAPABILITY SEMINAR SICKNESS ABSENCE AND CAPABILITY DISMISSALS LAW - - PowerPoint PPT Presentation

CAPABILITY SEMINAR

JAMIE JENKINS BARRISTER

SICKNESS ABSENCE AND CAPABILITY DISMISSALS

LAW PRACTICE AND HIDDEN TRAPS

Some figures from the CIPD 2016 Survey:

• 6.3 days sickness absence per employee
• £522 median cost of absence per employee
• Short term absence caused by minor illness, stress
• Long term absence caused by stress, acute medical

conditions and mental health

• 1/3 of respondents reported an increase in stress related
• absence. Only 1/9 noted a reduction
• 2/5 of respondents claimed an increase in reported mental

health problems

INTRODUCTION

• Terms relating to incapacity for work due to sickness or injury,

including sick pay, must be included in the contract of employment

• There is no presumption of a contractual right to sick pay, but

such a term may be implied on the facts and circumstances of a particular case (Mears v Safecar Security Limited)

• Where a contractual right to sick pay does not contain a

provision as to duration, the court will imply a reasonable term (Howman & Son v Blyth)

SICK PAY – CONTRACTUAL ENTITLEMENT

• To qualify must have four or more consecutive days of sickness,

must notify the employer of absence, and must supply evidence

• f incapacity.
• Entitlement limit to statutory sick pay is 28 weeks in a three year
• period. Current amount is £92.05 per week
• The vast majority of workers qualify for SSP. There are

exceptions.

SICK PAY – STATUTORY ENTITLEMENT

• Capability is a potential fair reason for dismissal under section

98(2) of the Employment Rights Act 1996

• Test is whether, in all the circumstances, the employer can be

expected to wait any longer before dismissing (Spencer v Paragon Wallpapers Ltd)

• Employers should in the first instance take steps to inform

themselves of the medical position. The requirement is to take reasonable steps (D B Schenker Rail (UK) Ltd v Doolan)

CAPABILITY DISMISSALS I

• Thereafter the employer should consider the requirements of

the business, the employee’s past sickness record, and whether the employee could be offered an alternative position (as per Spencer)

• It is an important distinct stage in the process that the employer

seeks to consult with the employee (East Lindsay District Council v Daubney)

• The employer must then decide what action to take, considering

all relevant factors

CAPABILITY DISMISSALS II

Relevant factors may be one or more of the following:

• The nature of the illness
• The likelihood of the illness recurring
• The length of absences and spaces of good health
• The need for the work to be done by a particular employee
• The impact of the absences on others who work with the employee
• The adoption and use of proper policies and procedures
• The emphasis on the personal assessment in the ultimate decision
• The extent to which the difficulty of the situation and the position of

the employer has been made clear to the employee

CAPABILITY DISMISSALS III

• No duty on the employee to provide information as to his

prospects of recovery (Mitchell v Arkwood Plastics (Engineering) Ltd)

• Cases where employers cause or contribute to the ill health

(McAdie v Royal Bank of Scotland)

• Persistent short term absence (International Sports Co Ltd v

Thomson)

CAPABILITY DISMISSALS IV

• Cases involving long term sickness absence will often also

contain allegations relating to disability discrimination. The starting point for any such claims is that an employee must be disabled within the meaning of s.6 Equality Act 2010.

• Helpful guidance was recently given by the EAT in the case of

Herry v Dudley MBC as to whether work related stress can amount to a disability.

DISABILITY DISCRIMINATION I

• The respective legal frameworks relating to unfair dismissal and

disability discrimination warrant separate consideration. The tests often give the same result but are separate (O’Brien v Bolton St Catherine’s Academy)

• It shouldn’t be assumed that the facts and arguments relating to

dismissal will be sufficient for discrimination claims. Some practice points:

• Allegations of discrimination should be streamlined
• Properly think through and identify each PCP
• Consider what reasonable adjustments could have been

made

• Be sure to properly identify the legitimate aim before

seeking to prove proportionate means

DISABILITY DISCRIMINATION II

• Requiring employees in robust health (Taylorplan Catering

(Scotland) v McInally)

• Specifying a period after which the employer can consider

dismissal (Leonard v Fergus and Haynes Civil Engineering Ltd)

• Frustration (Warner v Armfield Retail & Leisure Limited)

CONTRACTUAL ISSUES

• Implied duty of trust and confidence (Marlow v East Thames

Housing Group and Ear v Cantar Fitzgerald International)

• There is an implied duty not to dismiss (Aspden v Webbs Poultry

& Meat Group)

• There is not an implied duty not to dismiss (Lloyd v BCQ Ltd)
• Not a breach to dismiss for redundancy (Hill v General Accident

Fire and Life Assurance Corporation)

PERMANENT HEALTH INSURANCE

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