Employment law has come a long way since the 1970s, and the Equal Employment Opportunities Commission has ensured that almost every American receives the equal and fair treatment from their current and potential employers. Unfortunately, the idea of separation of church and state has allowed religious institutions to dodge both the tax code and governmental regulation, including employment law.

The issue of government regulation on religious institutions has been brought back into to light with the recent case of Michigan teacher Cheryl Perich, who was forced to resign from a Lutheran grade school based on a narcolepsy diagnosis she had received. Perich had to take medical leave in 2004 and was diagnosed and treated for narcolepsy. Her doctors cleared her for work and she attempted to go back to the job she was promised would still be there for her, but instead she was asked to resign and told her disability made her unfit to teach children.

The problem with Perich’s case is that her employer, Hosana-Tabor Evangelical Lutheran Church and School (which is now closed) was protected under the “ministerial exception.” This exception prohibits the federal government from interfering in employment matters between religious institutions and their ministerial employees. The exception was created to protect religious institutions from being forced to consider clergy outside of their religious guidelines—for instance, a Catholic church being forced to employ a female priest, which is against their faith.

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Perich’s case brings into question the definition of a “ministerial employee.” Since Perich was a teacher of a religious class, was her school allowed to treat her however they wanted, completely disregarding the American Disability Act? It hardly seemed fair.

This isn’t the first employment case against a religious institution, in 1990, the Employment Division v. Smith case determined that unemployed individuals who used peyote—even during a religious ritual—could be denied unemployment benefits based on the standard drug-use laws. Many religious institutions became frantic that this case would set a precedent on government regulation and lobbied to have the Religious Freedom Restoration Act of 1993 passed. This act was created to prevent the any future laws that would limit a person’s free exercise of their religion.

While religious institutions have enjoyed great independence and freedom from regulation, Perich’s case may change all that. If she wins, religious institutions may need to more clearly define a “ministerial employee” and protect non-clergy employee’s rights just like every other employer. If you feel you’ve been wrongfully terminated from your job, contact a local San Antonio wrongful termination attorney to learn about your rights.

Jeff Davis is the Owner of the Davis law firm and a highly experienced San Antonio wrongful termination attorney. To find out more information about a San Antonio employment lawyer, please visit www.jeffdavislawfirm.com.
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When considering whether to dismissal for misconduct, a question that often comes up is how much investigation should the employer carry out first? It’s commonly known that under the ‘Burchell’ test:

the employer must establish that he believed the employee was guilty of misconduct;
the employer must have had reasonable grounds for that belief;
the employer must have carried out as much investigation into the matter as was reasonable in all the circumstances.

In the recent Court of Appeal case of Salford NHS Trust v Roldan, Ms Roldan was a staff nurse, when a colleague complained that she had ill-treated a colleague, discarding cleaning wipes on a patients face and slapping his hand. She was suspended, and informed that serious complaints had been made. In the investigation the colleague was interviewed, as was Ms Roldan and her supervisor. The complainant’s recollection was precise and consistent, but Ms Roldan’s recollection was inconsistent and vague. Ms Roldan was dismissed following a disciplinary hearing, who then appealed saying amongst other things that the wipes had gone in the patients face by accident, but that the patient had assaulted her.

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The appeal took the form of a re-hearing with all the witnesses giving evidence again. The appeal was rejected. The consequences for the appellant were very significant; not only did she lose her job, but in addition she lost her work permit and the right to remain in the United Kingdom, as well as being the subject of a criminal investigation by the police for which she was prosecuted but acquitted.

One of the grounds of appeal was whether the investigation was adequate.  On the facts, the Court of Appeal considered that further investigation should have been carried out:

The more serious the consequences of dismissal for the employee, the more careful an investigation is required. In this case, a more careful investigation was needed because the consequence of dismissal was that Ms Roldan could be deported; ‘This is particularly so given that here was a woman who had given service to the employers over 4 years, apparently without complaint, and there was a real risk that her career would be blighted by this dismissal. It would certainly lead to her deportation and destroy her opportunity for building a career in this country’. More could have been done to check the allegations made.
An employer faced with a conflict of evidence between two witnesses is not obliged to believe one employee and to disbelieve the other. If it is unable to resolve the conflict, it is perfectly proper to give the alleged wrongdoer the benefit of the doubt.

At first reading, the Trust’s investigation and complete re-hearing at appeal seemed quite thorough. However employers would be wise to consider the full consequences of a disciplinary dismissal, and investigate as exhaustively as possible if deportation, prosecution or being placed on a barred list might follow. If in doubt, take legal advice, as not doing so could prove to be expensive!

James Carmody is lawyer advising on UK employment law in Central London EC1 http://www.reculversolicitors.co.uk/ 0207 324 6271
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You have been terminated! – involuntarily and without cause. A former employee often is presented with a severance agreement in exchange for securing certain post-employment benefits. It is important to consider how a severance agreement may affect the rights and benefits of a former employee, many of which may already be contracted to during the course of the employee’s employment. For example, a non-competition agreement may have been previously executed or the former employee may be a participant in an incentive compensation plan containing a forfeiture-for-competition clause. Often, these operative documents are drafted at different times and by different attorneys who may not be aware of the existence of such prior agreements. A hodge-podge of written agreements may result in ambiguities and be open to multiple interpretations – negating the very purpose for which these documents were originally created. The intent of these documents and the very purpose for their creation is to set forth a roadmap in the event of a dispute. If such documents do not achieve their intended purpose, responsibility for ambiguities, and language that may be susceptible to more than one interpretation, lies with the drafter. Thus, in reviewing a severance agreement, a former employee should ascertain whether he/she is signing away any right to an already vested benefit. Careful consideration and negotiation with one’s former employer may be appropriate and necessary.

In the case of a person who has already been terminated, involuntarily, without notice and without cause – there may still be a way to recover benefits that have been potentially “forfeited.” In New York, courts disfavor non-competition agreements involving employees on public policy grounds. “Our economy is premised on the competition engendered by the uninhibited flow of services, talent and ideas. Therefore, no restriction should fetter an employee’s right to apply to his own best advantage the skills and knowledge acquired by the overall experience of his previous employment. This includes those techniques which are but ‘skillful variations of general processes known to the particular trade.’”

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It is important to note that under the employee-choice doctrine, a restrictive covenant will generally be enforced without regard to its reasonableness if the employee has been afforded the choice between not competing (and thereby preserving his benefits) or competing (and thereby risking forfeiture). This is the underlying premise of forfeiture-for-competition clauses found in incentive compensation plans and applies to an employee terminating his/her employment relationship, voluntarily. If it is the employer who has terminated the employment relationship, involuntarily and without cause, then New York Courts will examine the reasonableness of the restrictions of the forfeiture-for-competition clause.

Under a reasonableness analysis, a court must first determine whether the employer has a legitimate interest to protect, and whether this interest will protect the employer from economic injury caused by “unfair or illegal” conduct by the former employee. Thus, the agreements may be enforced “to the extent necessary (1) to prevent an employee’s solicitation or disclosure of trade secrets, (2) to prevent an employee’s release of confidential information, or (3) in those cases where the employee’s services to the employer are deemed special or unique.” Courts will then balance the employer’s interests against the extent to which the non-competition agreement is unreasonable in “time, space or scope.” In other words, “such [restrictive] covenants will be enforced only [to the extent it is] reasonably limited [in time and geographic scope], and then only to the extent necessary to protect” the employer’s legitimate interests.

It is important to remember that, in all likelihood, a former employer is not interested in continuing to distribute payments to a former employee after his/her employment has been terminated. When negotiating a severance agreement, it is important to ascertain the effect of the operative clauses on the rights to benefits previously contracted to and with a now former employer. Taking the appropriate course of action to assure receipt of all benefits due, will avoid unnecessary concern and, hopefully eliminate the possibility of a long and protracted legal dispute.

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.

For more information or to contact the authors, visit our Web site.

Citations:

[1] Leninger v. Gibbs & Hill, Inc., 730 F.2d 903, 905 (2d Cir. 1984) (To the extent that the contract is ambiguous… the court must apply “the well-established rule that contractual ambiguities should be construed most strongly against the drafter.”)

[2] Reed, Roberts Associates, Inc. v. Strauman, 40 N.Y.2d 303, 307 (1976).

[3] Lucente v. Int’l Bus. Mach. Corp.. 262 F.Supp.2d 109, 113 (S.D.N.Y. 2003).

[4] Id. (citing American Broadcasting Companies, Inc. v. Wolf, 52 N.Y.2d 394, 404 (1981)).

[5] Id. (citing Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 70 (2d Cir.1999)).

[6] Id. (citing American Broadcasting Companies, Inc. v. Wolf, 52 N.Y.2d 394, 403-4 (1981)).

[7] Id. (citing Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 499 (1977)).

This article has been authored by Eric Shames, Esq. and Rosaline Rosenfeld, Esq.About Eric Shames, Esq.Eric Shames is Managing Director of Strategic Litigation Solutions, where he uses his in-depth knowledge and expertise in helping clients better navigate the complex legal environment in which they operate.Eric Shames holds a Juris Doctorate in Securities Law and Regulation from the Benjamin N. Cardozo School of Law at Yeshiva University and an M.B.A in Finance and Financial Instruments from the Columbia Business School. He also has a B.A. in Economics from Brandeis University. Currently, Eric Shames also serves on the editorial board of the Journal of Securities Law, Regulation & Compliance.
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Like virtually every country, the UK has a set certain rules and regulations for employing people. These rules are almost similar for British and foreign citizens, except for certain rules that take care of immigration and visa related issues.

Employment rules in UK can broadly be classified into three major categories listed below.

Minimum Pay Rules
Employment Conditions and Contracts
Working hours and conditions

These three regulations have to be met by any employer in UK, if he intends to run his organization smoothly and legally. The UK government has set a minimum wage for all people. Every organization has to pay their workers the minimum wage set by the government, depending upon the age and job of the employee. The minimum wage may differ for regular and contract employees. Regular employees may get a higher daily wage than the contract or hired employees.

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Employment conditions and contracts pay emphasis on the conditions under which an organization has hired its employees. At the time of joining the company, the employer asks his employee to sign a job contract. The job contract must meet the guidelines set by the UK government. The employer must provide salary slips, sick leave, travel allowances and most importantly safety insurance. If the job condition is risky and involves risks of accidents, the employer must equip his employee with security gear and cover him under an insurance policy. Similarly, the employee cannot leave his job unannounced before the contract expires. Both parties must give prior notice to each other before terminating the job.

Lastly, the working hours and working conditions must be safe, secure and healthy. If an employer asks his employee to work overtime, he or she must be paid for it. Work conditions must not have any side effect on the health of employee. If the job conditions are risky and unhygienic, proper care must be taken to minimize the risk involved.

As far as foreign workers are concerned, they are subjected to more rules. In the wake of terrorist activities, the government has made its immigration policy stricter. Foreign workers must stick to the visa and work guidelines and any breach of the rule may result in ending their work contract instantaneously. The payment options may also differ for the foreign workers. The employment rules are not only meant for the employers and it becomes the duty of the employees to abide by the rules to maintain a good work relationship.

Claire recommends 11 Stone Buildings who are known as an <a target="_new" rel="nofollow" onclick="javascript:_gaq.push(['_trackPageview', '/outgoing/article_exit_link/3284479']);" target="_blank" href="http://www.11sb.com/practice-areas/employment.asp”>Employment Lawyer London in the UK.
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Redundancy Payments

You may recall that in the budget earlier this year, Alistair Darling declared that to assist people being made redundant, the maximum week’s pay for the purposes of the statutory redundancy payment would be increased from £350 to £380.  However employees made redundant in the meantime will not be able to benefit from this largesse as it will only come into force on the 1st October 2009. There will then be no further increases till February 2011. In other words, the budget announcement may have looked good, but will not make a great deal of difference in practice.

Just as a reminder, employees with over two years service who are made redundant are entitled to receive a statutory redundancy payment of a weeks pay to a maximum (of currently £350) x full years worked x 1.5 for years worked over the age of 41. This can be easily calculated by visiting http://www.berr.gov.uk/whatwedo/employment/employment-legislation/employment-guidance/page33157.html.

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Employees are also entitled to contractual or stautory notice (whichever is greater), or payment in lieu. Statutory  notice is 1 week for each full year worked to a maximum of 12 weeks.

The same method is also used to calculate ‘basic’ awards in unfair dismissal cases (‘compensatory’ awards in unfair dismissal being for the loss of earnings etc until the employee finds suitable alternative employment)

Accruing Holiday When Off Sick

Do employees on long term sick leave continue to accrue paid holiday under the Working Time Regulations? Back in January we reported the European Court of Justice decision in Stringer v HMRC which ruled that:

 A worker who is on sick-leave for the whole of an annual leave year is entitled to a period of four weeks’ paid annual leave, despite the fact they are not actually at work. In other words the right to paid holiday accrues even for employees on long term sick leave.

 The ECJ sent this back to the House of Lords to decide how this works in UK law which this week has held that this right can be enforced under the Employment Rights Act. What does that mean in practice? It means that the limitation period for bringing a claim is three months from the date of the last ‘deduction’ complained of (rather than three months for each deduction). Still not clear? Well, it means a lot more employees on long term sick leave will be able to sue if they don’t get paid holiday. Good news for employees; not such good news for employees.

In January, the ECJ suggested that that annual leave accrued by a sick worker must be carried over (rather than being forfeit if unused at the end of the particular holiday year). This however is something that the UK Regulations do not provide for, and which the House of Lords do not appear to have cleared up either. The best thing employers can do in the meantime is to address sickness absence issues before they become long term.

www.reculversolicitors.co.uk  

James Carmody is lawyer advising on UK employment law in Central London. Please let me know if there are any issues arising in this article that you would like to discuss by contacting jrc@reculversolicitors.co.uk . (http://www.reculversolicitors.co.uk)
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Don’t Sack Saker?

In Sakar v West London Mental Health Trust the Court of Appeal has held that applying an informal misconduct procedure for minor offences, then subsequently dismissing for gross misconduct based on much the same facts, was ‘outside the range of reasonable responses’ so as to render the dismissal unfair.

 In this case the Trust received several complaints alleging that Dr Sacker was ‘harassing and distressing’ staff. The Trust first used its informal ‘Fair Blame Policy’ but during the investigation it was alleged that Dr Sacker had been at it again; making an abusive telephone call and acting aggressively towards a security guard. The Trust then cranked it up a couple of notches and dismissed Dr Sacker for gross misconduct.

 The Court of Appeal took the view that by initially invoking its informal Fair Blame Policy, the Trust evidently thought Dr Sacker’s conduct to be relatively minor; so to then dismiss him for much the same thing was unfair. The tribunal had not substituted its own view for that of the Trust on the seriousness of the later incidents (a big no-no).

 The lesson of this case is that employers should be consistent in whether they adopt a formal or an informal procedure to deal with misconduct. If in doubt, then pending the outcome of an investigation, treat it as a formal matter (which can then be down-graded if appropriate). On this occasion, sacking Saker was not a good move.

 A Cross to bear?

The 2003 Employment Equality (Religion or Belief) Regulations made it unlawful to discriminate against someone at work by reason of their religious belief. In Eweida v British Airways a member of BA’s cabin crew claimed that it was unlawful for the company dress . code to forbid her from wearing a visible cross with her uniform.

 This went all the way to the Court of Appeal which has held that the wearing a visible cross with the uniform is not unlawful. To be indirect discrimination, a group of employees must be put at a disadvantage. In this case however, only one employee was affected (given that it was accepted that wearing a cross was a matter of personal preference) Furthermore, where different groups in the workforce have conflicting views on a dress code, a blanket ban may in some cases be the only fair solution.

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 The 2003 regulations have had less impact in practice than may have been expected, and Eweida appears to be a common sense decision in favour of BA, which of course now has rather more serious problems to deal with given the pending strike by cabin crew.

 When it’s not always enough to be sorry:

It is commonly known that ‘constructive’ unfair dismissal is where an employee resigns in response to a breach by the employer of the terms of employment. Frequently employees rely on the breach of the implied term of ‘trust and confidence’, if for example bullied at work. In Buckland v Bournemouth University the Court of Appeal has held that an employer cannot ‘cure’ a repudiatory breach before an employee decides to treat it as a constructive dismissal.

 Professor Buckland passed 14 out of 16 students who had taken a re-sit exam. In response to criticisms of the marking made by another member of staff, the head of department arranged for the papers to be re-marked behind Prof Buckland’s back. He complained, and the University vindicated Prof Buckland following an investigation, however he resigned and claimed constructive dismissal.

 The tribunal took the view that not consulting Prof Buckland before confirming the revised marks on exam papers was an act ‘calculated to destroy the relationship of trust and confidence between [Professor Buckland] and the University’ and held that he was constructively dismissed.

 The Court of Appeal did not accept that the University’s decision, vindicating Prof Buckland, could ‘cure’ the earlier breach. The test for establishing constructive dismissal is objective and although reasonableness is a factor that tribunals may take into account in finding a repudiatory breach, it is not a legal requirement.

 This seems to put employers in an impossible position. Even if an employer promptly investigates an alleged wrong, and either apologises or remedies it, this may not be enough. The Court of Appeal itself recognised this situation to be ‘capable of working injustice’, but felt that to decide otherwise would be to muddy the waters of contract law.

 All briefed up for a disciplinary:

Legal representation at Disciplinary Hearings can be a right.

 As you probably know, employees at disciplinary or grievance hearings have the statutory right to be accompanied by a colleague or a trade union representative.

 In G v X School the Court of Appeal has recently held that Article 6 ECHR requires that a claimant should be afforded an opportunity to be legally represented at a disciplinary/appeal hearing where it was determinative of a right to practise a profession.

 G was a teaching assistant at X school. An allegation was made that he had had sexual contact with a 15 year-old boy. The school governors conducted a disciplinary hearing and dismissed him, reporting his dismissal to the Independent Safeguarding Authority  so that it could determine whether he should be placed on a ‘barred’ list of those unsuitable to work with children. G brought judicial review proceedings, challenging the governors’ decisions not to allow him legal representation at a disciplinary or appeal hearing.

 The Court of Appeal found that:

(1) the right to practise a profession was a “civil right or obligation”,

(2) an ISA listing would fundamentally limit G’s ability to practise his profession and

(3) the school’s internal process would have a “substantial influence or effect” on the decision-making of the ISA.

G was therefore entitled to legal representation at the disciplinary and appeal hearings.

Therefore if you want to discipline and potentially dismiss for gross misconduct doctors, teachers, social workers or pretty much anyone who works with children or vulnerable people and whose job amounts to a ‘profession’ which they could lose the right to practice if dismissed, they now have the right to be accompanied by a legal representative.

James Carmody is solicitor advising on UK employment law in Central London, EC1 (http://www.reculversolicitors.co.uk )
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Hawaii Card Check Bill Passes:  Bills’ Fate in Question as it is Transmitted to Governor Lingle

A bill which will allow unions to organize agricultural employers without a secret ballot election, HB 952 CD1, was passed on May 8, 2009, by the Hawaii Legislature.  Governor Lingle will have until June 30, 2009 to issue a veto message.

If Governor Lingle vetoes the bill, the Hawaii Legislature can override the Governor’s veto by obtaining a 2/3 majority vote in both the House and Senate. Based on her previous history of vetoes, it is likely that Governor Lingle will veto the bill.

The “card check” bill amends the Hawaii Labor Relations Act to require an employer to recognize a union as the bargaining representative of its employees if it is presented with union authorization cards signed by a majority of employees in an appropriate bargaining unit.

The card check bill, if not vetoed by Governor Lingle, or vetoed but overridden by the legislature, would apply to agricultural employers and certain small businesses exempt from the coverage of the federal National Labor Relations Act and effective July 1, 2009.

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The card check bill closely mirrors President Obama’s push for passage of the Employee Free Choice Act (“EFCA”).  Like the recently passed Hawaii bill, generally, EFCA would require the National Relations Board (“NLRB”) to certify a labor union as the exclusive bargaining representative of employees through union authorization cards signed by employees, without the benefit of a government-supervised, secret-ballot election, as long as 50% plus one of an appropriate bargaining unit sign the cards.  Critics contend that among other problems with EFCA, the card check system is prone to the use of intimidation and peer pressure by union organizers.

In addition to the potential of doing away with secret elections, HB 952 CD1 limits the card check provision to employers with annual gross revenues of $5 million dollars or more, and provides that if an employer and union negotiating for an initial contract do not reach agreement within 110 days through bargaining or mediation, they shall be referred to an arbitration panel, which will establish the terms of the parties’ collective bargaining agreement for a period of up to two years.  Finally, the bill includes new penalties of up to $10,000 for unfair labor practices.

A copy of the final bill transmitted to Governor Lingle can be accessed here:  http://www.capitol.hawaii.gov/session2009/bills/HB952_CD1_.htm

Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com

Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies.

Visit him at http://www.amaguinlaw.com and http://employmentlawyerhawaii.com
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A controversial decision at Eden Park last week has lead in many rugby supporters view to an unfair outcome.

On Saturday Wales played the French side in the Rugby World Cup. 18 minutes into the game Irish referee Alain Rolland made the decision to send off the Welsh captain, Sam Warburton for what he considered to be a spear tackle against Les Bleus winger Vincent Clerc. Warburton was indeed guilty of lifting Clerc in the tackle. It was clearly a penalty and merited a yellow card, but – without consulting further – Rolland decided to issue a red card and Warburton was sent off. The shock was palpable; even the French fans felt the decision was unduly onerous. The final score was Wales 8, France 9. It has been very widely commented that the wrong team has gone forward to play the All Blacks in the final.

Businesses can learn from this incident. When dealing with disciplinary matters, employers may well reach the conclusion that the employee is guilty of a breach of some rule that the case has been made out and then have to consider a sanction. It is vitally important to ensure that any punishment ‘fits the crime’. The sanction should reflect not only the severity of the offence, but where you are in the disciplinary process, i.e., is it a first minor offence or is it the third time you have disciplined the employee for the same or a similar offence? Is the matter very serious, which might merit dismissal for a first offence? You must also properly consider any mitigating factors, such as length of service, general track record, remorse expressed by the employee (if any) and his commitment to meet standards in the future?

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As a general rule, if there’s any whisker of doubt, it’s best to err on the side of caution. That’s understandable. If you deprive someone of their livelihood, it is a serious matter. If the employee then re-offends while the warning is live you have given him every possible opportunity and support and he must expect the ultimate sanction.

Giving too oppressive a warning can be regarded as a breach of contract and you could face a constructive unfair dismissal claim. Make sure the reasons for your decision are clear, consistent with the organisation’s disciplinary practices. Mr Rolland will go down in rugby history as the referee who made a very poor decision. It’s not likely to be a career enhancing moment for him. Make sure you check all the facts and that your decision is correct, proportionate and justifiable.

Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at http://www.russellhrconsulting.co.uk or call a member of the team on 0845 644 8955.

Russell HR Consulting offers HR services to businesses nationwide, including Buckinghamshire (covering Aylesbury, High Wycombe, Milton Keynes, Bedford, Banbury, Northampton, Towcester and surrounding areas), Nottinghamshire (covering Chesterfield, Mansfield, Nottingham, Sheffield, Worksop and surrounding areas) and Hampshire (covering Aldershot, Basingstoke, Reading, Farnborough, Fareham, Portsmouth, Southampton and surrounding areas).

Kate Russell started Russell HR Consulting in 1998 and now divides her time between advising businesses of all sizes on HR issues, and delivering a range of highly practical employment law awareness training to line managers, including a range of public workshops. Her unique combination of legal background, direct line management experience and HR skills, enables Kate to present the stringent requirements of the law balanced against the realities of working life. She is a senior presenter for several companies and a popular public speaker. Kate completed an MA in strategic human resource management in 2004.
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Incapability Dismissals

Contrary to popular belief ‘ill health’ is a potentially fair reason for dismissal since it relates to the employee’s capability to perform the work that they were employed to do. However, in the context of incapability dismissals, the Employment Tribunal will scrutinise the procedures followed by the employer prior to termination, in order to determine whether the decision to dismiss was reasonable in the circumstances. A ‘reasonable’ employer would normally be expected to consider all the relevant medical evidence, consult with the employee and consider whether there are any steps that could be taken to assist the employee in returning to work. (Employers should also be mindful of the disability discrimination legislation and the need to make reasonable adjustments.)

But what if the employee’s ill-health was caused by the employer in the first place? Should this be taken into account when deciding whether the employee’s dismissal was reasonable?

This question was recently addressed by the Employment Appeal Tribunal (EAT) in the case of Royal Bank of Scotland Plc v McAdie (2006).

The Facts

Ms McAdie went off sick with work-related stress following her employer’s failure to adequately address her grievances and the intimidating manner in which the process had been handled. After 9 months’ absence, Ms McAdie was referred to an occupational health doctor who diagnosed “severe adjustment disorder, secondary to alleged work-place issues, including harassment”. The doctor expressed doubt that the condition could be treated due to the depth of ill-feeling held by Ms McAdie and concluded that a return to work appeared impossible. Following this report, Ms McAdie was dismissed on grounds of incapability. She subsequently brought a claim for unfair dismissal.

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The Employment Tribunal initially upheld her claim, finding that her ill-health had been caused by the manner in which the Bank had dealt with her grievance and that this was crucial in determining the fairness of the dismissal. In the Tribunal’s opinion “no reasonable employer would have dismissed in these circumstances, because no reasonable employer would have found themselves in these circumstances. A reasonable employer would have investigated the matter properly at an early stage.”

EAT’s Decision

However, the EAT overturned this decision. In their view, the fact that an employer may have caused the incapacity did not mean that it could never effect a fair dismissal. Whilst the cause of an employee’s illness was a factor to be taken into consideration, the focus must always be on the reasonableness of the employer’s actions in the circumstances that existed at the time of the proposed dismissal – not whether the employer should have got itself into those circumstances in the first place.

In the present case, the medical evidence was very clear and the simple fact was that there was no alternative to dismissal. The Bank’s decision could not therefore be said to be unreasonable. The appeal was allowed and the claim dismissed.

Comment

The case of McAdie serves as a useful reminder of the dividing line between unfair dismissal claims and personal injury claims. Save in the context of discrimination cases, the Employment Tribunal has no jurisdiction to hear claims for personal injury. The appropriate course of action for an employee who suffers injury (physical or mental) as a result of a breach of duty by their employer, is to bring a personal injury claim in the civil courts. However, this will require the employee to show that the injury suffered was reasonably foreseeable and this can prove to be a significant hurdle, particularly in “work-related stress” cases.

AND IN OTHER NEWS…

Flexible Working Extended to Carers

The Government has published the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006, which extend the right to request flexible working to certain carers of adults. The Regulations will come into force on the 6 April 2007 and will extend the right to request flexible working to employees who are, or expect to be, caring for a person who is over the age of 18 and in need of care, and who is either: married to, the partner of, or the civil partner of the employee; a relative of the employee; or living at the same address as the employee. The right is subject to a qualifying period of 26 weeks continuous employment.

Disability by Association

Carers of disabled people may acquire further legal rights following the referral of Attridge Law v Coleman to the European Court of Justice. Although most discrimination legislation protects employees from detrimental treatment on the grounds that they associate with someone in a protected group (e.g. a white employee dismissed for marrying a black person), the same does not apply to the Disability Discrimination Act 1995 (DDA).

On the face of it, the DDA only applies if the employee themselves are a “disabled person”. The issue before the ECJ is whether the DDA should be given a wider interpretation so as to prohibit discrimination of an able bodied employee on the grounds of their association with a disabled person. If the claimant’s case is upheld, the scope of the DDA will be significantly extended.
Tim Davies is an Associate Solicitor at Michelmores Solicitors in the Employment Law Department. Contact Tim on tjd@michelmores.com
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Copyright (c) 2011 Robert Gray

If you are having to take time off work due to illness you may be wondering about your rights and responsibilities during your time off sick. Are you entitled to be paid – and if so, how much? – and what information are you required to give your employer?

Most workers between the ages of 16 and 65 are entitled to Statutory Sick Pay (SSP). Statutory Sick Pay is the minimum amount you must be paid by your employer whilst you are off sick. Your employer is entitled to reclaim any SSP payments from the government. You are entitled to receive SSP for a period of 28 weeks and if you are still unable to work after this period your SSP will stop but you will be able to claim Incapacity Benefit. SSP starts from the fourth consecutive day of your absence from work due to ill health.

Some employers offer their employees Occupational Sick Pay (OSP) and this will be detailed in your contract of employment. It is often the case that you have to have been working for your employer for a certain period of time, i.e. three months, before you are entitled to Occupational Sick Pay. Usually your employer will pay you OSP equivalent to your full-time pay for a certain period, i.e. 6 months, which will then go down to half-pay for a further specified period. Occupational Sick Pay must never be less than SSP but it is down to the discretion of your employer as to whether or not to use the SSP scheme, bearing in mind, again, that they cannot pay you less than what you would be entitled to under that scheme.

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What about your responsibilities to your employer? Your employer may have a particular policy or procedure on sickness absence which will need to be followed. For example, they may require you to notify them by a certain time on the first day of your absence that you are not going to be attending work due to illness. If you are absent for four consecutive days or more you are required by law to complete a SC2 Self Certification form which will provide your employer with details of your illness. After seven days of consecutive absence due to illness your employer is entitled to insist on you obtaining a doctor’s certificate (sometimes referred to as a ‘medical statement’ or ‘fit note’).

Being absent from work due to illness can be a worrying time, especially if you are likely to be absent for a substantial period of time. It would benefit both you and your employer if you can keep in regular contact with them (or if someone can do this on your behalf) to keep them updated on your condition and the likelihood of you returning to work. This will enable your employer to make provision for your job to be done in your absence and will help you to maintain good relations with your employer.

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