MISCONDUCT CAUSED BY ILLNESS
It is entirely possible that this recent judgement may lead to an increase in referrals by employers to occupational health professionals. The case certainly emphasises that employers must properly address health issues that arise in the context of disciplinary proceedings for misconduct if they want to avoid liability for unfair dismissal and disability discrimination.
Mr Dickson had worked for Edinburgh City Council for 28 years. He has type one diabetes. In recent years, his condition has been poorly controlled and was exacerbated by an unnoticed mis-prescription of insulin of the wrong strength. He has had 3 of his toes amputated as a result of neuropathy.
Mr Dickson was found to have viewed pornographic images whilst at work. In responding to the allegations he said he had no recollection of the doing this. However, he accepted that the evidence his employer had gathered show that he had done so. He stated that his behaviour must have been a result of his condition. He argued that a diabetic undergoing, a hypoglycaemic episode can behave wholly out of character and subsequently have no recollection of what he has done. The employer referred Mr Dickson to an Occupational Health Specialist. In particular, it posed the question "inappropriate behaviour at work, could it be caused by a hypo – answer – "yes".
The dismissing manager had sight of the report before he made his decision but strangely he seemed to prefer a view expressed by his HR Manager's wife (a pharmacist) who told her husband the night before the disciplinary hearing that Mr Dickson's condition could not have caused his behaviour. The employer rejected Mr Dickson's explanation. It believed the conduct was conscious and deliberate. Mr Dickson was summarily dismissed for misconduct. His appeal against dismissal was unsuccessful.
The Employment Tribunal and subsequently the Employment Appeal Tribunal ("EAT") decided that he had been unfairly dismissed due to the fact that his employer had made no real attempt to investigate or understand his argument that his conduct was as a result of his medical condition. The employer simply discounted the argument without any medical basis for doing so.
Interestingly, the EAT (the upper court) commented that it could understand why the employer was sceptical about the explanation that had been given for the behaviour. That however, they said, did not excuse the employer's failure to engage in any meaningful way with the medical issues. Had they done so they may have discovered facts which would have lead them to refrain from dismissing Mr Dickson.
This case highlights the difficulties for employers in apparently clear cases of misconduct where the employee raises a medical defence. It may be that in light of this case, there will be more medical referrals to occupational health professionals in the context of disciplinary proceedings will become more common.
PRE-OFFER HEALTH QUESTIONS UNLAWFUL
Assuming that the Equality Act comes into force as planned in October 2010, employers will be prohibited from asking questions about the health of a job applicant prior to a job offer being made to that applicant. The move is clearly designed to prevent employer's refusing applications on the ground of health whilst maintaining that the real reason for the refusal is on the basis of qualifications, skills, experience etc.
Questions on health issues can be asked once an offer has been made however it will be risky for an employer to withdraw an offer of employment if it does not like the answers to the health questions unless the applicant's health is such that his or her ability to carry out the job is called into question
PROTECTION FOR THOSE CARING FOR A DISABLED PERSON
Protection under the Disability Discrimination Act ("DDA") has now been extended to employees who are not disabled but who instead care for others who are disabled.
The DDA in its current form provide specific protection for those who care for disabled individuals. The European courts have now ruled in a UK case (Coleman vs. Attridge) that the EU law, from which the DDA is derived, is capable of extending protection to those who care for the disabled even though the EU directive does not specifically say that.
Mrs Coleman has a disabled son. She made a flexible working request so that she had more time to care for her son. It was refused. She alleges that this sparked a catalogue of harassment at the hands of her employer which led her to resign. Undeterred by the absence of any form of protection under the DDA she raised a disability discrimination claim on the basis that she had been harassed because of her son's disability. The European court said that the EU law could extend to those caring for or associated with disabled person. When the case was referred back to the Employment Tribunal in South London, it felt bound to follow EU law and effectively re-wrote the DDA to allow Mrs Coleman's claims to proceed
One slightly unusual consequence of this development is that parties to Employment Tribunal proceedings involving claims of disability discrimination may well end up arguing over whether or not a relative of an employee has a qualifying disability for the purposes of the DDA. Medical professionals providing expert reports may well be asked to see and report on the health conditions of for example children and elderly relatives of employees rather than the employees themselves.
Ill HEALTH ABSENCE AND HOLIDAYS
It has now been established beyond doubt that ill health absence can serve to reduce or dilute a worker's right to accrue and take holidays. These developments may well lead employers to act sooner in relation to long term ill health absence. The following principles have been established
- Workers continue to accrue holidays during ill health absences irrespective of the length of the absence
- Workers who are off sick can ask to take holidays during the sick leave
- An employee who becomes sick immediately before or during a planned holiday is allowed to take the holidays ruined by ill health at a later point in the holiday year
- An employee who returns from ill health absence must be allowed to take accrued holiday before the end of the holiday year
- If it is not feasible for the holidays to be taken before the expiry of the holiday year the employee must be allowed to be carry those untaken holidays into the next holiday year
Probably the most controversial aspect of these developments is the carry-over of holidays into the following holiday year. The Working Time Regulations ("the WTR") do not permit the carrying over of holidays; instead, workers must take annual leave in the particular leave year. This has enabled employers to take a "use them or lose them" policy when it came to employee holidays untaken at the end of the holiday year. That no longer appears to be the case where the reason the holidays have not been taken is ill health absence.
One particularly unfortunate consequence of that for employers is illustrated by the following example. An employee who is dismissed by reason of capability following an absence of 2 years effectively carries over all of the accrued but untaken holidays to the point of dismissal. As payment in lieu of all accrued but untaken holidays must be made at the termination of employment, that employee would be entitled to a payment in lieu of 56 days holiday (i.e. twice the minimum annual holiday entitlement under the WTR).
Employers who previously would have been content to allow a long term absentee to remain on the books because that absentee was not costing the business any money may well be more inclined to move towards an earlier ill health dismissal as a result of the ongoing accrual of holidays.
DISABLED STATUS – THE EFFECT OF MEDICATION OR TREATMENT
A recent case should make it easier for people whose conditions are well controlled by treatment or medication to claim disabled status under the DDA.
A key part of the test for whether or not a person is disabled is the does the medical condition have a substantial impact on the person's ability to carry out day to day activities. Where the condition is well controlled by medication or other treatment there may be no impact at all let alone one that is substantial. That would deny protection under the DDA to a great many people.
That is why disabled status under the DDA is extended to those whose condition would "be likely to have substantial adverse effect on the ability to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it". In cases where disabled status is disputed medical experts often have to give evidence on what the impact would be in the absence of medication or treatment. Often this requires an element of informed speculation. Lawyers are then left to argue whether the consequences of non treatment or medication outlined by the medical practioners are likely. In this particular case the argument was distilled down to the meaning of the word "likely".
At the heart of this case was a regime which relieved Ms Boyle from recurring hoarseness. She had had an operation for vocal cord nodules. She underwent speech therapy and was given advice to follow a strict regime on how she used her voice. This was designed to reduce stress on the throat and voice. She was advised to increase humidity and hydration levels. Ms Boyles' employer argued that whilst she did have a physical condition, there was little or no impact on her ability to carry out her day to day activities and therefore she was not disabled for the purposes of the DDA. Ms Boyle argued that but for her following a strict regime recommended by her speech therapist it was "likely" that there would be substantial effect on her ability to communicate. The case centred on an argument about whether or not "likely" meant, probable, or something less than probable.
In the past, the word "likely" had been interpreted as meaning more probable than not. Probability is a reasonably high test. The House of Lords ruled that the word "likely" is now to be interpreted as meaning "could well happen". On any plain reading of those words, that is a lower test.
ON CALL AND WORKING TIME
The vexed question of whether time spent on-call is regarded as working time for the purposes of the Working Time Regulations is as yet unresolved. It appears likely that certain types of "on call" periods will be regarded as working time. This is likely to have would have huge impact on the medical and social care sectors in respect of such matters as rest breaks, the 48 hour maximum working week and the National Minimum Wage.
In December 2008, MEPs voted that on-call time should count as working time. This view was supported by the European Commission in February 2009 however, this was subject to different types of on-call time being distinguished. The Commission wants there to be a distinction between "active" on-call time (a period during which a worker must be available at the work place in order to work when required by the employer) and "inactive" on-call time (a period when the worker is on-call but is not required by his employer to work).
Unfortunately, the categorisation of on-call time as working time is still unclear. The only decided case in the UK in an upper court was in the case of Mccartney v Oversley House Management. In that case it was decided that the time spent on-call by a carer was working time even though she was allowed to sleep during that on-call period. This case involved a Residential Manager in a care home for the elderly who lived in tied housing. It was key to the tribunal's thinking that she had to remain at or within a short distance (3 miles) from a place determined by her employer and that she was never effectively "off duty". She had an office in her tied accommodation. The outcome may have been very different had Mrs Mccartney been on call in her own home with no specific restrictions on her movements.
It is likely that future rules on the issue of on-call time as working time will attempt to draw distinctions between on-call times when an employee remains entirely at the beck and call of the employer as compared with on-call shifts where the employee is free to go about his or her business without interference from the employer.
MANAGING ILL HEALTH ABSENCE
The Equality Act which is due to come into force in October will extend the protection afforded to employees in connection with less favourable treatment for a reason related to disability. This is going to have a potentially significant impact on the way that employers manage absence.
Currently employers have an outright defence to such claims. In the context of the dismissal of a disabled employee on capability grounds as a result of a long term absence, in order to avoid liability the employer need only show that it would have dismissed other employees off on long term sick but who are not disabled. Most commentators agreed that this defence effectively neutered the rules on disability related discrimation.
Assuming the Equality Act comes into force in October as was planned before the general election, it will be unlawful discrimination if a person is treated unfavourably because of something arising in consequence of that person's disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. In practical terms, this means that employers will no longer be able to rely on their defence that they would have treated a non-disabled person in the same way. They will now have to satisfy tribunals that the treatment was justifiable from an objective point of view. In practice this is difficult to do.
This is best illustrated by reference to the dismissal of an employee as a result of a long term sickness absence. Currently the employer need only show that other employees off for the same length of time and with a poor or uncertain prognosis would be dismissed. As of October the same employer will have to justify the dismissal by reference to such factors as the disruption the absence is causing to the business and the cost of a temporary replacement. If there is no cost and no disruption it is difficult to see how a dismissal will be justified.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.