copyright joan lewis october 2014 trent occupational medicine symposium october 2014: joan lewis...
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Copyright Joan Lewis October 2014
Trent Occupational Medicine SymposiumOctober 2014: Joan Lewis
Chartered MCIPD, MA (Law & Employment Relations)
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Copyright Joan Lewis October 2014
Be Reasonable! Lessons from Case Law
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The Equality Act 2010
• Nine Protected Characteristics:(age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, sex, sexual orientation, race, and religion or belief)
• Direct discrimination• Indirect discrimination• Victimisation• Harassment
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Disability Discrimination
• In addition there are 2 other types of discrimination specific to disability legislation:
• Failure to make reasonable adjustments • Discrimination arising from disability so…• Essential to consider EqA provisions and
reasonable adjustments at the earliest stage• Being reasonable includes following policy.
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Shark Wrestling on Sick Leave
Copyright Joan Lewis October 2014
Off sick with stress, he was then dismissed for breach of trust and confidence . Paul Marshallsea was reportedly ‘disgusted’ - “ What am I going to do now? There’s not much call for shark wrestlers in Merthyr Tydfil”. Now settled after dismissal found to have been unfair.
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Amy McIntosh, signed off sick for several weeks with tonsillitis, made a brave effort at the Commonwealth Games. She faced a meeting with managers after her
appearance as a Tunnock’s Teacake.
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EqA and Pre employment health questionnaires
– Employers should generally not now ask about a job applicant’s health (including any disability) before offering a post.
– Limited exceptions are: • Assessing whether an applicant can carry out a
function • Diversity monitoring but info is confidential• Establishing whether an applicant requires
adjustments for interview/assessment
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Progressive Conditions & Deemed Disabilities
• EqA 2010, Sch 1, para 8 covers progressive conditions – even if the employee’s condition is not yet substantial, it is treated as so if the condition is likely to result in such impairment.
• EqA 2010, Sch 1, para 6 deems Cancer, HIV and MS to be disabilities.
• And para 7 gives power to prescribe that other conditions should also be deemed to be disabilities.
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Equality Act Provisions• People with cancer, multiple sclerosis or HIV/AIDS are
covered from the date of diagnosis regardless of the impact of the illness at a point in time.
• Disability provisions include physical or mental impairment (including anxiety, stress and depression)
• Mental health condition does not have to be a WHO recognised condition
• Disability = a substantial and long term effect ( a year) on ability to carry out normal day to day activities
• There is a legal duty then to ‘make reasonable adjustments’ to accommodate the disability
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What are reasonable adjustments?• Employer decides what is reasonable• Hours of work - Altered working hours (temp or perm) or phased
return• Scope of work• Training, mentoring, support• Special equipment, adaptations• Support and supervision• Risk assessment • Planned rehabilitation process – adapt • Workstation and special equipment assessment• Workload review• Review and revise– temporary? • Transfer to different post – retrain option
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What is a disability under the EqA
• A physical or mental impairment• Substantial adverse effect on day to day activities• Long term – generally likely to last 12 months + • Essential employers seek specialist advice asap and
keep it up to date: HR and OH• Don’t jump to conclusions• Tudor v Spen Corner Veterinary Centre ET/240211/05
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EqA Exclusions
• addiction/dependency on alcohol, nicotine or any other substance (other than in consequence of the substance being medically prescribed)
• Seasonal rhinitis – e.g. hayfever except where another condition is aggravated
• Tendency to set fires, steal, physical or sexual abuse
• Exhibitionism or voyeurism• Disfigurements such as tattoos, body piercing,
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IVF –the current employment protection rationale
• IVF begins before pregnancy – therefore section 3A of SDA does not offer against discrimination on pregnancy grounds;
• ECJ – Mayr v Backerei und Konditorei Gerhard Flockner [2008] – women treated as pregnant when IV eggs are transferred to her uterus.
• EAT Sahota v Home Office and Pipkin UKEAT/0342/09 similar – protection applies from implantation stage – if unsuccessful for 2 weeks after.
• No statutory right to time off for IVF treatment
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Case Law Gallop v Newport City Council [2013]
• Employers must not ‘rubber stamp’ an OH opinion that employee is not disabled.
• An employee is disabled if 3 tests are met:• They have a physical or mental impairment• The impairment has an adverse effect on
their ability to carry out normal day to day activities
• The effect is both substantial and long term
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Facts of the case
• G suffered from a stress related illness and was referred to OH in 2004
• OH advised stress likely to be work related but no signs of clinical depression – workload adjusted.
• Signed off sick with stress and referred again to OH. Similar advice.
• G raised health and safety related grievance in 2006 –GP diagnosed depression
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To Tribunal..
• 2007 several periods of sickness ‘reactive depression’
• Throughout Council wrote to OH for updates and to ask whether OH considered him to be disabled under the DDA
• OH said they did not believe him to be disabled but did not explain their opinion
• G was dismissed in 2008 – claimed unfair dismissal, direct discrimination and failure to make reasonable adjustments
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Court of Appeal
• No reason provided for OH opinion, so it was no more than an assertion
• Council should have formed own judgment• OH should have focused on the 3 elements of
the legal test from a medical perspective• As these had not been mentioned the OH
opinion was ‘worthless’• Employers should pose specific practical
questions to cliniciansCopyright Joan Lewis October 2014 17
Practical Implications
• It should have been clear that the employee had a long term problem
• Employers cannot rely on an unreasoned opinion• Break questions down to legal definitions; focus also
on impact of the condition and its likely duration• Make sure OH report is well reasoned – seek
clarification if it is not• Employer must form a considered view as to
employee being disabled or not
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Cox v Essex County Fire and Rescue Service
• Dismissal of an unconfirmed bipolar disorder sufferer was not unfair
• C disclosed during recruitment that he suffered from a mild depression – nothing to impact on normal day to day activities
• In 2008 he fell at work and began PI proceedings against the employer.
• A year on he told employer he was seeing a counsellor as a result of severe depression and effects of concussion after the accident
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Dismissal
• 2009 –suspension pending investigation into behaviour
• C informed employer he had suffered bipolar disorder for 3 months. Psychiatrist suggested a ‘hypomanic episode’. ? the bipolar diagnosis
• C withdrew his OH consent for his GP and consultant to disclose his medical condition to OH
• Employer dismissed CoxCopyright Joan Lewis October 2014 20
The Tribunals
• Claims for disability discrimination, failure to make reasonable adjustments, unfair and wrongful dismissal
• Because there was no definitive diagnosis at the point of dismissal the employer was entitled to conclude he was not disabled
• No duty to make adjustments if they do not know, or reasonably be expected to know employee is disabled
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The Top Causes of Absencecipd.co.uk
• Minor illness: colds, flu, stomach bugs, headaches
• Back pain and musculo skeletal injury• Stress – on the rise• Mental ill health – also increasing• Recurring medical conditions – eg asthma,
angina• Home and family responsibilities
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What is Stress Related Illness?• HSE definition: “the adverse reaction people have to
excessive pressures or other types of demand placed on them.”
• Emphasis on distinction between pressure which can motivate, and stress that occurs when pressure becomes too great.
• Stress can contribute to mental ill health manifesting as anxiety or depression, and also to physical ill health – pain, headaches, IBS, ME, psoriasis etc.
• Less obvious signs: absence, performance, relationships at work….
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How common is it?
• stress is now the most common cause of long term sickness (4weeks+) for manual and non manual workers across all sectors of industry
• Non-manual- risen now to 33%• Manual -now 21%, level with acute medical
conditions and has overtaken musculo- skeletal problems to become top cause of LTS
• Now a link between job security and mental health problems rising with risk of redundancy
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Warning of possible stress alerts signs• Previous sickness record – Walker v Northumberland County Council
£175k• Frequent short term absence• Poor timekeeping• Decreased productivity/performance• Change in behaviour or attitude• Poor interpersonal relations• Workload and working hours• External appearance signs – tired, untidy, disinterested?• X v Staffordshire University settled for £110k• Sports reporter NoW awarded £792,736 for unfair dismissal,
disability discrimination, bullying
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Case Law – reasonable adjustments• Reasonable adjustments - paying for medical
treatment: Croft Vets Limited & ors v Butcher• no review of reduced hours: DWP (Job Centre Plus) v
Higgins • Allocated parking space can be a reasonable
adjustment: Environment Agency v Donnelly• Duty to make reasonable adjustments, discrimination
arising from disability: Horler v Chief Constable of South Wales Police ET/1600591/2012
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Not so reasonable..• Sick Pay extensions – see O’Hanlon v HMRC and RBS
v Ashton• Costs too great – see Cordell v Foreign &
Commonwealth Office• Employer not aware of disability – see DWP v Alam• Supporting an ill-health retirement application is not
a reasonable adjustment- Tameside Hospital NHS Foundation Trust v Mylott
• Employee does not accept reasonable adjustments offered- see DWP v Wilson; Garrett v Lidl Ltd;
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Other Case Law Decisions• Dismissal for sickness absence: BS v Dundee City
Council• Special Absence Policies not needed for disability:
Griffiths v Dept. of Work and Pensions• Chronic Fatigue Syndrome: Salford NHS Primary Care
Trust v Smith• Is obesity a disability?: Walker v SITA Information
Networking Computing Ltd• Karsten Kaltoft: European test case on obesity 25
stone child minder with slim prospect of success?
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Getting More Information
• HSE ACAS• CIPD Absence Management Survey • The SME’s Guide to Sickness Absence Management –
free from www. unum.co.uk • Guidance and Code of Practice: odi.gov.uk/
equalityact• EqA 2010 – Statutory Code of Practice Employment
www.equalityhumanrights.com
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