Appeal Hearings are Your Friend

It was nearly a year ago that we received instructions from a client who had dismissed one of their employees as a result of the employee’s failure to comply with their policies relating to reporting his sick absence from work on a number of occasions.

On each of those occasions, the employee had been issued with a disciplinary warning and reminded of the absence reporting procedures that he was required to adhere to. Whilst those warnings were issued without disciplinary hearings taking place, on each occasion the individual was offered the right of appeal, which he chose not to exercise. The dismissal of the employee actually took place without a disciplinary hearing but the employee was informed of the decision in writing and offered the right of appeal. Following a referral from an existing client of Taylors, the Company concerned contacted our Senior Employment Associate, Emma Swan for advice and guidance.

Emma immediately recognised the risk of a finding of unfair dismissal due to a potential breach of the ACAS Code. However, Emma advised the client that, provided a full re-hearing was conducted at the appeal stage, then there would be a strong chance that the client could rectify the situation and that an Employment Tribunal would determine that any subsequent appeal finding that the dismissal should be upheld would be a fair dismissal.

Last week we were delighted to receive the Employment Tribunal’s Judgment that the procedural flaw at the initial dismissal stage was cured by the comprehensive manner in which the Company dealt with the Claimant’s appeal against his dismissal. The client had taken step-by-step guidance from Emma and undertaken a thorough re-hearing at the appeal stage looking afresh at each instance of unauthorised absence and the associated non-compliance with the absence notification policy.

Whilst the key message to employers is that it is far safer to follow a thorough investigation and disciplinary procedure in the first place (and it is also likely to save time and expense in subsequently dealing with an appeal or Employment Tribunal proceedings), employers should take comfort in the fact that a full re-hearing at an appeal stage may remedy procedural defects of certain kinds.

Our client in this case was Dragon Air Conditioning Limited, a company based in South Wales that specialises in air conditioning design, installation, service and maintenance. On receiving the news of the Judgment in their favour, Kevin and Alison Markall, the owners and directors of the business, commented:

“We were referred to Taylors by a mutual client of both ourselves and Taylors, who had used Taylors’ employment services for some time. When we first spoke to Emma, we were in an uncertain position and did not know how to deal with the disciplinary appeal process with the threat of an employment tribunal claim looming. Emma guided us through the appeal process and gave us real practical advice on how to deal with the matter; she talked us through all our options and explained clearly to us how each would impact on our business.

Although it was a difficult and time - consuming process, it was certainly worth all the effort. We were absolutely delighted with the tribunal's decision that the appeal process Emma had assisted us with, remedied the procedural errors that had occurred in the initial dismissal Emma acted for us throughout the Tribunal process and was there to support us each step of the way. She explains matters in a straight forward and practical way so that we knew what to expect and could take business decisions accordingly. We cannot recommend Emma's tribunal expertise highly enough."

Does Your Employee’s Weight Change the Way You Treat Them?

An employee’s obesity was part of a significant question in the Employment Tribunal recently when a Mr Walker claimed that he had been discriminated against on the grounds of his disability.

Mr Walker had functional overlay, which was compounded by obesity. He suffered from numerous conditions that in themselves could potentially have amounted to disabilities. These included asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacroiliac joint problems.

The Tribunal was required to decide whether Mr Walker’s functional overlay meant that he was a disabled person and the legal question was whether he had a physical or mental impairment that had a substantial and long term adverse effect upon his ability to carry out normal day to day activities.

Firstly, the Employment Judge decided that Mr Walker did not have a disability because there was no evidence of a mental illness causing a functional overlay and there was no discernible physical or organic cause for the condition, other than the obesity being a contributing factor. However, the Employment Appeal Tribunal took a more holistic approach to the problem and found that Mr Walker did have a disability, which was probably a combination of both physical and mental impairments. They said that it was important to look at the effect of the impairment rather than it being necessary to consider how it was caused.

So, how should employers deal with obese employees, particularly in a society where we are told by the Government that over 60% of adults are overweight or obese? If such employees were found to be disabled by an Employment Tribunal, then there would be an obligation on the employer to make any reasonable adjustments required to support the employee in their role and if the workplace relationship were to break down, then disability discrimination claims may arise.

So what should you do?

• It would be advisable for employers to look at their workforce and to consider whether the organisation can put policies in place to encourage healthy living and whether there are any employee benefit schemes or incentives, such as “Cycle to Work”, gym membership, free health checks for example and whether work places can be accommodated to provide healthy snacks in any works’ canteens or vending machines, providing facilities for those who may cycle, walk or run to work for storage of their equipment and to provide showers to freshen up.
   
• It is also important that employers consider how any sickness absence is managed, with a clear absence policy setting out how absences will be managed and that they are implemented consistently for all employees.
   
• Return to work interviews should be held for every period of absence and records kept of the number of absences and the reasons given for those absences.
   
• When considering whether an employee may be suffering from a disability, you should look at what the problems they are suffering with are, rather than how those problems have been caused.
   
• Advice should be taken from occupational health advisers or an employee’s own GP before making any decisions, particularly where dismissal is a possibility.
   
• Employers should consider and make any reasonable adjustments for disabled employees including those who are severely overweight and/or obese.

A further question that the Employment Appeal Tribunal considered is what would happen if an obese person lost weight and whether they could still be disabled. One of the principal parts of the definition of “disability” is that the condition suffered needs to have a long term (at least 12 months) adverse impact on daily activities. It may be that a person who is dieting will have less and less adverse effects on their ability to carry out daily activities and if the impairment is likely to last less than 12 months, then there will be no disability.

Clearly obesity is a particularly sensitive problem and very difficult for employers to discuss, deal with or manage. Whilst obesity is not automatically a disability, it can have a significant impact on an individual and cause other medically-recognised illnesses. Obesity, like stress, appears to be an increasing problem for the population and it is imperative that HR gets to grips with handling grievances that individuals may raise as a result of jokes directed at their obesity or managing absence for illnesses that may arise from that obesity.

New Guidance from ACAS

A new Guidance from ACAS has now been published on how employers should handle collective redundancies following the change in law on 6 April 2013.

If you are proposing to make 100 or more redundancies, you now have to start consultation at least 45 days before any dismissals take effect (which is a reduction from the former requirement of 90 days).

The ACAS Guidance does not set out a procedure that employers must, by law, follow but employers should be mindful that if they are dealing with collective redundancy situations, Employment Tribunals will consider the Guidance and may be persuaded by employees arguing that a failure to follow the ACAS Guidance may render a procedure unfair if it is not followed.

We would not recommend, however, that you simply follow the Guidance in the belief that this will guarantee a fair procedure, but consider the process as a whole carefully and take specialist employment advice before proceeding. In particular, the ACAS Guidance does not in our view provide enough detail on how to elect employee representatives, who need to be in place before consultation can even start.

The Employment Team at Taylors has regularly and recently advised clients in collective redundancy situations and would be pleased to provide you with the practical advice needed to comply with the legal obligations.

The HR Exchange

We are delighted that so many of you continue to support The HR Exchange and we were delighted to receive the following feedback from Rebekah Tapping, Group HR Director of Daisy plc:

"My team has been to a number of the HR Exchange meetings and found it really useful for their own development, to understand what other businesses are focusing on in HR and how they are managing similar situations to the ones that are facing. They feel that the HR Exchange is safe environment to learn and share in.

We’ve recently enjoyed being able to share our own experiences as a HR function with other members of the HR Exchange when we delivered a presentation on ‘A Day in the Life of Daisy HR’. This was a great development opportunity for the team as well as being a good discussion point for the rest of the HR Exchange.”

We look forward to Daisy’s continued support at the The HR Exchange and from all of you who commit your time to attending.

The next HR Exchange events – 9 May (Manchester) and 20 June (Lancashire) will feature a mock employment tribunal, as well as our popular employment law update. We’ll be joined by Employment Judges from 9 St John Street Chambers in Manchester, so the events promise to be as close to a real life Tribunal as you’ll get – without all the stress of course!

Your Questions Answered

How should you deal with an employee who alleges that they had been targeted for bullying by a colleague because they were of a lower caste to their colleague?

The employment team says...

This gives rise to a complex area of law under the Equality Act 2010 and careful consideration needs to be given to planning how to deal with the complaint. Whilst under current employment law caste is not defined in the Equality Act as a protected characteristic, there is an arguable case that it would be covered as ethnicity, which is a protected characteristic under race. There is a potential risk that if the complaint is found to be true, then there may be grounds for the employee to bring a claim of discrimination on the grounds of their race and/or religion or belief.

Regardless of there not being a clear legal position on whether caste is covered by the Equality Act, there is still an obligation on an employer to ensure that all employees are protected from bullying and harassment on whatever grounds. Accordingly, you should follow the company’s grievance procedure and any related equal opportunities or bullying and harassment policies in investigating and considering the grievance raised.

It should also be highlighted that Vince Cable, Business Secretary, has announced that caste discrimination will be outlawed in the UK; this is a change in direction by the Government. Mr Cable has indicated that in the future, caste will be treated “as an aspect of race”.

Proposals for such a change to discrimination law have not yet been set out in any detail and we will update you in due course.

If you have any queries in relation to this problem or a question that you would like to ask the team and share with our other readers, please send it to us and we would be delighted to use it in a future edition of Employ!