UK: Update - Health Issues at Work

Last Updated: 22 June 2010
Article by Michael McLaughlin

MISCONDUCT CAUSED BY ILLNESS

It is entirely possible that this recent judgement may lead to an increase in referrals by employers to occupational health professionals. The case certainly emphasises that employers must properly address health issues that arise in the context of disciplinary proceedings for misconduct if they want to avoid liability for unfair dismissal and disability discrimination.

Mr Dickson had worked for Edinburgh City Council for 28 years. He has type one diabetes. In recent years, his condition has been poorly controlled and was exacerbated by an unnoticed mis-prescription of insulin of the wrong strength. He has had 3 of his toes amputated as a result of neuropathy.

Mr Dickson was found to have viewed pornographic images whilst at work. In responding to the allegations he said he had no recollection of the doing this. However, he accepted that the evidence his employer had gathered show that he had done so. He stated that his behaviour must have been a result of his condition. He argued that a diabetic undergoing, a hypoglycaemic episode can behave wholly out of character and subsequently have no recollection of what he has done. The employer referred Mr Dickson to an Occupational Health Specialist. In particular, it posed the question "inappropriate behaviour at work, could it be caused by a hypoanswer – "yes".

The dismissing manager had sight of the report before he made his decision but strangely he seemed to prefer a view expressed by his HR Manager's wife (a pharmacist) who told her husband the night before the disciplinary hearing that Mr Dickson's condition could not have caused his behaviour. The employer rejected Mr Dickson's explanation. It believed the conduct was conscious and deliberate. Mr Dickson was summarily dismissed for misconduct. His appeal against dismissal was unsuccessful.

The Employment Tribunal and subsequently the Employment Appeal Tribunal ("EAT") decided that he had been unfairly dismissed due to the fact that his employer had made no real attempt to investigate or understand his argument that his conduct was as a result of his medical condition. The employer simply discounted the argument without any medical basis for doing so.

Interestingly, the EAT (the upper court) commented that it could understand why the employer was sceptical about the explanation that had been given for the behaviour. That however, they said, did not excuse the employer's failure to engage in any meaningful way with the medical issues. Had they done so they may have discovered facts which would have lead them to refrain from dismissing Mr Dickson.

This case highlights the difficulties for employers in apparently clear cases of misconduct where the employee raises a medical defence. It may be that in light of this case, there will be more medical referrals to occupational health professionals in the context of disciplinary proceedings will become more common.

PRE-OFFER HEALTH QUESTIONS UNLAWFUL

Assuming that the Equality Act comes into force as planned in October 2010, employers will be prohibited from asking questions about the health of a job applicant prior to a job offer being made to that applicant. The move is clearly designed to prevent employer's refusing applications on the ground of health whilst maintaining that the real reason for the refusal is on the basis of qualifications, skills, experience etc.

Questions on health issues can be asked once an offer has been made however it will be risky for an employer to withdraw an offer of employment if it does not like the answers to the health questions unless the applicant's health is such that his or her ability to carry out the job is called into question

PROTECTION FOR THOSE CARING FOR A DISABLED PERSON

Protection under the Disability Discrimination Act ("DDA") has now been extended to employees who are not disabled but who instead care for others who are disabled.

The DDA in its current form provide specific protection for those who care for disabled individuals. The European courts have now ruled in a UK case (Coleman vs. Attridge) that the EU law, from which the DDA is derived, is capable of extending protection to those who care for the disabled even though the EU directive does not specifically say that.

Mrs Coleman has a disabled son. She made a flexible working request so that she had more time to care for her son. It was refused. She alleges that this sparked a catalogue of harassment at the hands of her employer which led her to resign. Undeterred by the absence of any form of protection under the DDA she raised a disability discrimination claim on the basis that she had been harassed because of her son's disability. The European court said that the EU law could extend to those caring for or associated with disabled person. When the case was referred back to the Employment Tribunal in South London, it felt bound to follow EU law and effectively re-wrote the DDA to allow Mrs Coleman's claims to proceed

One slightly unusual consequence of this development is that parties to Employment Tribunal proceedings involving claims of disability discrimination may well end up arguing over whether or not a relative of an employee has a qualifying disability for the purposes of the DDA. Medical professionals providing expert reports may well be asked to see and report on the health conditions of for example children and elderly relatives of employees rather than the employees themselves.

Ill HEALTH ABSENCE AND HOLIDAYS

It has now been established beyond doubt that ill health absence can serve to reduce or dilute a worker's right to accrue and take holidays. These developments may well lead employers to act sooner in relation to long term ill health absence. The following principles have been established

  • Workers continue to accrue holidays during ill health absences irrespective of the length of the absence
  • Workers who are off sick can ask to take holidays during the sick leave
  • An employee who becomes sick immediately before or during a planned holiday is allowed to take the holidays ruined by ill health at a later point in the holiday year
  • An employee who returns from ill health absence must be allowed to take accrued holiday before the end of the holiday year
  • If it is not feasible for the holidays to be taken before the expiry of the holiday year the employee must be allowed to be carry those untaken holidays into the next holiday year

Probably the most controversial aspect of these developments is the carry-over of holidays into the following holiday year. The Working Time Regulations ("the WTR") do not permit the carrying over of holidays; instead, workers must take annual leave in the particular leave year. This has enabled employers to take a "use them or lose them" policy when it came to employee holidays untaken at the end of the holiday year. That no longer appears to be the case where the reason the holidays have not been taken is ill health absence.

One particularly unfortunate consequence of that for employers is illustrated by the following example. An employee who is dismissed by reason of capability following an absence of 2 years effectively carries over all of the accrued but untaken holidays to the point of dismissal. As payment in lieu of all accrued but untaken holidays must be made at the termination of employment, that employee would be entitled to a payment in lieu of 56 days holiday (i.e. twice the minimum annual holiday entitlement under the WTR).

Employers who previously would have been content to allow a long term absentee to remain on the books because that absentee was not costing the business any money may well be more inclined to move towards an earlier ill health dismissal as a result of the ongoing accrual of holidays.

DISABLED STATUS – THE EFFECT OF MEDICATION OR TREATMENT

A recent case should make it easier for people whose conditions are well controlled by treatment or medication to claim disabled status under the DDA.

A key part of the test for whether or not a person is disabled is the does the medical condition have a substantial impact on the person's ability to carry out day to day activities. Where the condition is well controlled by medication or other treatment there may be no impact at all let alone one that is substantial. That would deny protection under the DDA to a great many people.

That is why disabled status under the DDA is extended to those whose condition would "be likely to have substantial adverse effect on the ability to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it". In cases where disabled status is disputed medical experts often have to give evidence on what the impact would be in the absence of medication or treatment. Often this requires an element of informed speculation. Lawyers are then left to argue whether the consequences of non treatment or medication outlined by the medical practioners are likely. In this particular case the argument was distilled down to the meaning of the word "likely".

At the heart of this case was a regime which relieved Ms Boyle from recurring hoarseness. She had had an operation for vocal cord nodules. She underwent speech therapy and was given advice to follow a strict regime on how she used her voice. This was designed to reduce stress on the throat and voice. She was advised to increase humidity and hydration levels. Ms Boyles' employer argued that whilst she did have a physical condition, there was little or no impact on her ability to carry out her day to day activities and therefore she was not disabled for the purposes of the DDA. Ms Boyle argued that but for her following a strict regime recommended by her speech therapist it was "likely" that there would be substantial effect on her ability to communicate. The case centred on an argument about whether or not "likely" meant, probable, or something less than probable.

In the past, the word "likely" had been interpreted as meaning more probable than not. Probability is a reasonably high test. The House of Lords ruled that the word "likely" is now to be interpreted as meaning "could well happen". On any plain reading of those words, that is a lower test.

ON CALL AND WORKING TIME

The vexed question of whether time spent on-call is regarded as working time for the purposes of the Working Time Regulations is as yet unresolved. It appears likely that certain types of "on call" periods will be regarded as working time. This is likely to have would have huge impact on the medical and social care sectors in respect of such matters as rest breaks, the 48 hour maximum working week and the National Minimum Wage.

In December 2008, MEPs voted that on-call time should count as working time. This view was supported by the European Commission in February 2009 however, this was subject to different types of on-call time being distinguished. The Commission wants there to be a distinction between "active" on-call time (a period during which a worker must be available at the work place in order to work when required by the employer) and "inactive" on-call time (a period when the worker is on-call but is not required by his employer to work).

Unfortunately, the categorisation of on-call time as working time is still unclear. The only decided case in the UK in an upper court was in the case of Mccartney v Oversley House Management. In that case it was decided that the time spent on-call by a carer was working time even though she was allowed to sleep during that on-call period. This case involved a Residential Manager in a care home for the elderly who lived in tied housing. It was key to the tribunal's thinking that she had to remain at or within a short distance (3 miles) from a place determined by her employer and that she was never effectively "off duty". She had an office in her tied accommodation. The outcome may have been very different had Mrs Mccartney been on call in her own home with no specific restrictions on her movements.

It is likely that future rules on the issue of on-call time as working time will attempt to draw distinctions between on-call times when an employee remains entirely at the beck and call of the employer as compared with on-call shifts where the employee is free to go about his or her business without interference from the employer.

MANAGING ILL HEALTH ABSENCE

The Equality Act which is due to come into force in October will extend the protection afforded to employees in connection with less favourable treatment for a reason related to disability. This is going to have a potentially significant impact on the way that employers manage absence.

Currently employers have an outright defence to such claims. In the context of the dismissal of a disabled employee on capability grounds as a result of a long term absence, in order to avoid liability the employer need only show that it would have dismissed other employees off on long term sick but who are not disabled. Most commentators agreed that this defence effectively neutered the rules on disability related discrimation.

Assuming the Equality Act comes into force in October as was planned before the general election, it will be unlawful discrimination if a person is treated unfavourably because of something arising in consequence of that person's disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. In practical terms, this means that employers will no longer be able to rely on their defence that they would have treated a non-disabled person in the same way. They will now have to satisfy tribunals that the treatment was justifiable from an objective point of view. In practice this is difficult to do.

This is best illustrated by reference to the dismissal of an employee as a result of a long term sickness absence. Currently the employer need only show that other employees off for the same length of time and with a poor or uncertain prognosis would be dismissed. As of October the same employer will have to justify the dismissal by reference to such factors as the disruption the absence is causing to the business and the cost of a temporary replacement. If there is no cost and no disruption it is difficult to see how a dismissal will be justified.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions