New Regulations |
| With effect from 1st July 2022 new regulations came into force, which will expand the category of people who can sign statements of fitness for work, or “fit notes”, for the purposes of statutory sick pay and social security claims. Registered nurses, occupational therapists, pharmacists and physiotherapists will be able to sign fit notes. It is hoped that this will reduce the workloads of GPs and free up more of their time to see patients. |
An employment tribunal has held that an employee with long Covid symptoms was disabled within the meaning of the Equality Act 2010.
Mr Burke was employed as a caretaker from April 2001. In November 2020 he caught Covid and, after initially mild symptoms, developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover. He struggled standing for long periods and could not undertake household activities like cooking and shopping. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. The symptoms were unpredictable and sometimes he would experience improvement only to suffer from fatigue and exhaustion again. From January 2022, his health began to improve, but sleep disruption and fatigue continued to affect his day-to-day activities.
He was dismissed in August 2021 because of ill health and brought disability discrimination claims.
The tribunal concluded that Mr Burke was disabled during the relevant period. It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities, and was more than minor or trivial. It was also the case that the impairment could well last for a period of 12 months (from the date of dismissal).
Following a claim, the tribunal have found that on balance the Claimant’s vegetarianism was not a philosophical belief capable of protection under the Equality Act 2010.
Watch this space, as a preliminary employment tribunal hearing to determine if veganism is a protected belief under the Equality Act 2010 is listed very soon.
The company called people over an 11 month period whose numbers were registered with the Telephone Preference Service (TPS) and who had not given their consent to receive them. The ICO had also issued them with an enforcement notice to warning them to stop making the calls.
If you need any assistance with GDPR, please contact us.
Don’t avoid confrontation is the lesson!
A photographer was made redundant and, believing that this was because of her race, brought a tribunal claim. According to her employer, the reason for her redundancy was “purely for financial/economic reasons”, but it later amended their reason. Items of clothing were found “concealed” in the photography room, implying that she was going to steal them. The manager lied to the claimant about the reason to “minimise potential confrontation”.
The decision above provides employers with a warning that a fair reason must be given for a dismissal, and a proper process followed. Rather than investigating the suspected theft, thereby avoiding any potential discrimination, the manager sought to make things less confrontational by giving a false reason for the dismissal.
For any investigation or disciplinary requirements, please contact us for advice.
The Employment Appeal Tribunal (EAT) has confirmed that, where the employee’s contract does not prevent this, the employee is permitted to take sick leave and claim statutory sick pay for a job which they have been declared medically unfit to carry out, while working in a different job which they are medically able to fulfil their duties in. In that case, the employee was employed part-time as a midwife for the NHS. Her contract of employment prohibited her from working elsewhere without her employer’s consent. She was also employed by another NHS trust on a part-time basis carrying out a desk-based job. When her chronic knee condition prevented her from working as a midwife, she continued working in her secondary part-time employment in her sedentary role, which was not affected by her ill-health condition. When her employer found out she was working elsewhere despite being signed off as sick, it proceeded to dismiss her on the basis that she had defrauded her employer of a “large sum of money” due to claiming sick pay whilst fit to work in her other employment. The EAT held that her dismissal was unfair as there was nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying out work for another job that they are fit to do. However, the EAT did find that the employee in that case had committed an act of misconduct by failing to obtain her employer’s consent to take on additional employment, in breach of her contract of employment. For this reason, it decided that the damages awarded to the employee for unfair dismissal should be reduced by 30%, as a result of her contributory fault. In contrast in another case, the EAT found that the employer was entitled to dismiss an employee who carried out private work of the same nature as the work they did for their employer during sick leave whilst in receipt of full contractual sick pay, where the employer’s policy prohibited this and the employee was made aware that doing so may amount to gross misconduct. Where the employer has evidence that proves the employee is working in a like-for-like role while claiming sick pay from them, this may indicate there is a disciplinary case for the employee to answer. This is because a dishonest claim for sick pay will constitute gross misconduct and amount to a breach of trust and confidence, which usually gives the employer the right to summarily dismiss their employee, subject to following a fair dismissal process and the consideration of any relevant mitigating factors. For further information please contact EC HR. |
| Following the decision in Agoreyo V London Borough of Lambeth, employers will be able to suspend individuals in order to investigate misconduct without worrying about automatically breaching the implied term of trust and confidence. It will still be wise to avoid suspending as a knee-jerk reaction unless it is a reasonable and proper course of action. |