What’s new in the law on managing ill-health and disability? Anna Denton-Jones 25 th June 2015

What’s new in the law on managing ill-health and disability?

Anna Denton-Jones25th June 2015

Fit for work service

navigating employment law

Fit for work service

• Occupational Health services being made more widely available for the first time

• Website: fitforwork.org• Roll out commenced 9th March


Referral

• Normally after 4 weeks – employer led• GP can earlier if obviously a long-term issue?• Later if GP wouldn’t recommend RTW at 4

weeks eg:- hip operation


Assessment

• Within 5 days• By phone• Employee has to consent• Purpose: explore the barriers to RTW


Aim – RTW plan

• Replaces the GP’s fit note at this point• Either someone is fit to return to work or they

are not• If they are fit – timetabling/phasing and

recommendations


Follow up

• Where the original assessment was not fit to return to work

• Checking if RTW plan followed• 2 weeks after RTW discharged– What if relapse? (Not eligible for another 12

months)


Action points for employers

• Update sickness policies• Publicise what OH is to staff and raise

awareness of the service so people aren’t surprised when they are referred


Disability UpdateEquality Act



Reminder: “disability”

“A person has a disability …if he has a physical or mental impairment which has a substantial or long-term adverse effect on his ability to carry out normal day to day activities”

Worry for employers 1

• When does an anxiety and depression case get captured by that definition?– Length of time or background pattern– Substantial adverse effects on their ability to do

everyday things


Saad v University Hospital Southampton

• Reminder – not all those suffering from anxiety and depression will be able to show a substantial, adverse or long term effect on the ability to carry out normal day to day activities


Metroline Travel Ltd v Stoute

• Bus driver with type 2 diabetes• The condition, which was controlled by

abstaining from sugary drinks, did not have a substantial adverse effect on the employee’s ability to carry out day-to-day activities



• How long is someone suffering from medical condition X likely to need to take off work by reason of that condition?

• Griffiths v DWP



• Can we rely on OH report when deciding if employee is disabled?– No: guidance only– Look at all the picture before you including your

own observations of the employee, what the employees says as well as OH advice



• What adjustments are reasonable?– What if we haven’t got any ‘light-duties’?– Why is a particular pattern being suggested?• Phased return to work• What is it about the medical condition than means the

person can do X but not do Y?

– Do we have to pay for treatment?


General Dynamics v Carranza• 206 days absence in 3 years – final warning.• Further 3 months of non disability absence led

to dismissal.• Discrimination arising from a disability claim.• Failed – dismissal proportionate means of

achieving legitimate aim of consistent attendance


Fox v British Airways• 1995 back broken in serious work accident• 2008 transferred to new role• 2010 MR indicated unlikely to be able to RTW

for the foreseeable• 3 months notice• No appeal within 7 days• Condition improved so appealed later• Updated MR – RTW possibility• Dismissal took place. Died and father pursued

claims navigating employment law

Can obesity be a disability?

• Kaltoft (EC)– obesity is not itself a disability but it can be

• Mirrors the UK position – Walker v Sita


Case study

• Gemma has worked in a call centre for 5 years. She is 30 years old, weighs 16 stone and is 5ft 2 tall. She has high blood pressure and joint problems. She has body odour issues which her colleagues are constantly complaining about. She broke a chair in the canteen last week.

• What are the implications for her employer?


First harassment/obesity case

• Bickerstaff v Butcher 2014 • Colleague liable for the comments made that

were obesity related• (Employer had settled claims – vicariously

liable)


Employer question: is the employee entitled to be paid full pay for any part-time hours they

do when RTW?

• No but think about what you are trying to encourage


Linking bonus to absence could be discriminatory

• Land Registry v Houghton• LR had made adjustments so that normal

sickness procedures more generous• Section 15(1) unfavourable treatment arising

as a consequence of a disability and not objectively justified


Alcohol, prescription drugs and legal highs in the workplace

• Increasing incidence of cases– Tramadol addiction– Steroids

• Current policies may be inadequate and need updating

• Opportunity to sell testing?


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What’s new in the law on managing ill-health and disability? Anna Denton-Jones 25 th June 2015