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Sick Pay whilst working in additional employment

by | Sep 12, 2019 | Newsletter

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. 

Agoreyo v London Borough of Lambeth

by | May 16, 2019 | Newsletter

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.

Why businesses shouldn’t ignore data requests

by | May 10, 2019 | Newsletter

The data protection laws allow individuals certain rights in relation to their personal data. One such right is to access their personal information – this is also known as a subject access request (SAR).
In a recent case a housing developer has been prosecution for a failure to respond to a subject access request as required by the legislation. This is after they ignored an enforcement notice from the data watchdog in the UK, the Information Commissioner Office (ICO), which ordered them to comply with the law.
The company pleaded guilty and to a charge of failing to comply with an enforcement notice. It was fined £300, with a £30 victim surcharge, and was ordered to pay £1,133.75 towards prosecution costs.
As you may be aware, the GDPR and the Data Protection Act 2018 came into force on 25 May 2018. The new law changed some of the rules around SAR’s. 
Main points include:
  • A SAR does not require a specific format, it can be in a letter, email or verbal;
  • Organisations must act on the request without undue delay and at the latest within one month of receipt;
  • In most cases organisations cannot charge a fee to deal with a request;
  • Organisations must provide specified information to the person making the request;
  • There are clear rules around calculating the one month time limit.

For further information, or if you have a SAR enquiry, please contact me.

Age Discrimination Case

by | May 3, 2019 | Newsletter

In a recent case, the Claimant suffered from a heart condition and arthritis which was classed as a disability for the purposes of employment law legislation. Due to a process change, the Claimant was informed her role had changed, however, it was never made clear what this new role meant.  The Claimant was required to attend a short training session on a new electronic system. However, this training session ultimately did not take place. 
The Claimant received a letter from her employer which said it was “concerned” about her “capabilities” within her role and were investigating this as part of a disciplinary. 
The Claimant raised a grievance complaining of age discrimination, which the employer failed to deal with.  Following the Claimant’s dismissal for gross misconduct, the Claimant brought a claim for unfair dismissal and age and disability discrimination. 
As part of the disciplinary investigation, the employer had collected and used feedback on the Claimant obtained from her colleagues, including about her age and mobility, which the employment tribunal found to be “inappropriate” and “discriminatory” as they were based on perceptions of age and mobility, rather than having any factual basis. No disciplinary investigation meeting took place with the Claimant and the report into the disciplinary investigation was concluded without any evidence taken from the Claimant.  This was because when the Claimant stated that she could not attend the disciplinary investigation because she had a medical appointment and her representative was not available. The employer, however, refused a postponement and insisted that the investigation meeting would go ahead without her.  The employment tribunal found that the disciplinary investigation was inadequate and that there were serious procedural failings in the disciplinary process.
The tribunal found that the Claimant had a fundamental misunderstanding of her role and the tasks that she should have been doing, yet the Claimant was not offered training to address this. The employer had stated that the Claimant was stuck in “old secretarial ways” and the tribunal found that the employer believed that because of her age, the Claimant was not going to be helped by training.  The tribunal further concluded that instead of the Respondent addressing the requirements of her role directly with her and either training her and then requiring her to do the role as directed, the Claimant was dismissed. The dismissal was discriminatory on the grounds of age and disability. 
ACAS has published new guidance on age discrimination in the workplace. This includes guidance on the risk of age stereotyping and when discrimination on the grounds of age may be lawful. 

Where an employee’s ill-health is impacting their ability to carry out their job the employer should investigate the issue. A reasonable investigation is required to establish the facts (including obtaining medical advice) in order to put in place measures or reasonable adjustments to address any capability issue. This is likely to be a fairer process than addressing the concerns under a disciplinary procedure, which in most cases is likely to be inappropriate.   

When do you issue terms and conditions to new employees?

by | Apr 18, 2019 | Newsletter

As part of the Good Work Plan, from 6th April 2020 employers must issue written statement of particulars from DAY 1. There will no longer be the two month grace period. This will apply to both employees and workers.

We at ECHR Ltd have always recommended issuing documentation to employees and workers prior to their start date and hopefully most of you already do this as best practice. For everyone else, you have a year to put procedures in place to ensure that you comply with this new legislation. 

Please contact ECHR if you need assistance in writing terms and conditions of employment or need any advice on changes to them.