south oxon hr network - employment law plus...employment law plus what chambers legal directory has...
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South Oxon HR Network
EMPLOYMENT LAW PLUS
- Practical and commercial solutions to HR
challenges
Employment Law Plus
Jill Kelly
• Graduated from Oxford University
• Trained and qualified in London
• Partner at Thomson Snell & Passmore in
Kent
• Partner at Clarkslegal, Reading
• 2005 Appointed Employment Judge
• 2006 Set up Employment Law Plus
Employment Law Plus
What Chambers Legal Directory has said
about Jill:
• a vastly experienced practitioner who is
"deserving of her status." She advises both
business and individuals and also sits as a
part-time employment judge
• received special praise for her
“straightforward” and “excellent” approach
Employment Law Plus
What Chambers Legal Directory has said
about Jill:
• singled out by interviewees for her skill at
“clearly communicating all the important
issues”.
• Client friendly
• Leading figure
South Oxon HR Network Sep 2015
ESSENTIAL LAW IN ABSENCE
MANAGEMENT
What are the issues?
• Unfair dismissal
• Disability discrimination
• Contractual issues
• Data protection
• Asking health questions on recruitment
• Government Fit for Work programme
Unfair dismissal
• Employee will need 2 years service to bring
claim
• Potentially fair reason for dismissal
• Relates to the capability of the employee for
performing work of the kind which he is employed by
the employer to do
• Relates to the conduct of the employee
• Is the problem conduct or performance?
Unfair dismissal
• Will dismissal for the potentially fair reason be
fair?
• In the circumstances (including the size and
administrative resources of the employer) did the
employer act reasonably in treating it as a sufficient
reason to dismiss the employee?
Fair dismissal for long term ill health
• Get a medical report
• Who from?
• What are you going to ask about?
• Getting consent
• What happens if employee won’t consent?
• Who sees the medical report?
• How long is it going to take?
• The battle of the medical reports
Fair dismissal for long term ill health
• When will it be fair to dismiss?
• How long are they going to be unable to perform
[satisfactorily]?
• What are your requirements for replacing?
• Can you make a change which will allow them to
continue working for you (link to reasonable
adjustments)
• Consultation
Disability discrimination
• No qualifying service required
• Anyone who is not self employed in business on
own account protected
• Including agency staff and job applicants
What is a disability?
• Long term condition
• Materially impacts ability to undertake day to day
activities (or would do were it not for the
treatment)
• Some conditions are automatically disabilities
eg cancer
• How do you know if the employee has a
disability?
Obligations to staff with a disability
• Not to treat less favourably because of the
medical condition itself
• Not to treat less favourably because of the
effects of the medical condition, unless this is
justified
• To make reasonable adjustments to reduce
impact of medical condition on employee in
workplace
Practicalities of avoiding DD
• The employer can dismiss if
• It has made all reasonable adjustments
• The reason for the dismissal is ongoing performance
issues
• It is justified in dismissal – see unfair dismissal!
Contractual issues
• What is the notice period?
• What are the contractual sick pay provisions?
• Is there permanent disability insurance?
• Do you have to pay full pay or SSP for notice
period (if contractual pay entitlement gone)?
• Can I keep my employee off work if I don’t think
he’s fit to return?
Data protection
• Information about health is sensitive personal
data
In practice:
• Limit information obtained to that which is
necessary
• Limit who sees the information
• Destroy within reasonable time
• Inform what will use data for
Asking questions about health
• No pre offer health questions unless:
• To find out if can undergo assessment
• To establish can carry out function intrinsic to work
• To monitor diversity
• To take positive action to people with a disability
• Enforced by Commission for Equality and
Human Rights
Fit for Work
• Government Fit for Work service
• “Fit for Work helps you to better understand and
manage sickness absence within your
organisation. Expert and impartial advice is
delivered by our team of occupational health
professionals”
• On line guidance
• “Live Chat”
• Advice call line
Fit for Work
• Fit Work referral service
• Employees (via GPs) and employers can now refer to
service:
https://referral.fitforwork.org/en/employer/referral/eligi
bility
• “assessments by an occupational health professional
with the aim of overcoming obstacles that might be
preventing them from returning to work”
• After 4 consecutive weeks’ absence or expected
absence
• Must be reasonable chance of RTW
Fit for Work
• Fit Work referral service
• Return to work plan addressing obstacles to RTW
• Who are the assessors?
• Usually phone call assessment only
• Aim produce RTW plan in 7 days
• Information for referral comes from employee only
• Employee consent needed for employer copy (can be
redacted)
• Support lasts 3 months
• No need for sick note if under programme?
Fit for Work
• Fit Work referral service
• Income tax exemption for amounts up to £500 a year
per employee for medical treatments recommended
by the service/ OH
Fit for Work
• Fit Work referral service - practicalities
• What happens if employee won’t cooperate with
referral?
• What happens if employee won’t disclose some/all
RTW plan?
• What happens if employee refuses to comply with
RTW plan?
• What happens to employer OH referral?
