Category Archives: Sick pay

I’m feeling stressed!!!

As a result of a recent case relating to workplace stress or depression being seen as a disability, it may be useful to look at the law relating to disability. The law says that if an employee has a disability and is thereby put at a disadvantage compared with non-disabled employees, then the employer has a duty to take such steps as are reasonable to avoid the disadvantage. A disability is legally defined as a physical or mental medical impairment that has a substantial effect on the ability to carry out normal day-to-day activities  and is “long-term”, meaning it has lasted or is likely to last more than 12 months.

Normally these aspects of disability go together so if an impairment lasts more than 12 months it’s probably a medical condition and probably has a substantial effect on that person’s day-to-day activities.  But that’s not always the case. Recently the EAT accepted that clinical depression is a medical condition and it also accepted that it will often be difficult to distinguish clearly between stress and depression. However, the EAT also accepts that these two conditions are different; stress is a reaction to adverse life events so if those events disappear, the stress should resolve itself.

So what should employers do? Well, in practice most employers will be unable to distinguish between stress and depression, but they have a duty of care to take reasonable measures to reduce or avoid stress in the workplace. If as an employer, you can reduce stress as much as possible it will inevitably lead to a nicer place to work and probably also to greater productivity. There are limits of course, work can be stressful. But often there are things managers can do, like improving workflow systems in order to reduce the need for stressful deadlines. Change how you allocate work, not every job is time critical or vitally important so assess each job or task and allocate accordingly; this will significantly reduce pressure on your employees as they will be able to pace themselves.

Remember employee stress and clinical depression can be used in unfair dismissal cases, so it’s always best to minimise the likelihood that these reasons can be used against you, and as always if you need help or advice, give us a call.

Leave a comment

Filed under Duty of care, Employment Law, HR Issues, Mediation, Sick pay, Unfair Dismissal

Review of Employment law for the New Year

Now might be a good time to review the legal situation as we go into 2016 regarding employment law so here are a few highlights and insights:

The Government’s new national living wage comes into effect from 1st April 2016, when all employers will have to pay workers aged 25 and over £7.20 per hour. The Low Pay Commission will now be responsible for making recommendations on changes to this rate, as it is for the other national minimum wage rates. The rate is set to increase to £9 per hour by 2020.

The rates of statutory maternity/paternity pay and shared parental and adoption pay remain frozen as for FY 2015/16 at £139.58 per week or 90% of the person’s average weekly earnings if less than £139.58 as will statutory sick pay (£88.45).

Last September saw an interesting case impacting HR’s role in disciplinary proceedings; basically the judgement held that a dismissal is unfair if the decision to dismiss an employee is improperly influenced by the HR Department. In the case in question, the company HR department actively lobbied for a dismissal. A HR department should really limit advice to managers conducting investigations and disciplinary procedures only as regards to the applicable laws and procedures. Any advice on sanctions should be governed by the aim of achieving consistency throughout.

The European Court of Justice held that, where a worker has no usual place of work, time spent travelling from and to home for the first and last customers visits of the day should be counted as working time. This was a landmark ruling for travelling salespeople and call-out tradesmen.

The new Immigration Bill created an offence of illegal working. A new Labour Market Enforcement Agency was created to take action against employers that exploit migrant workers and an immigration skills charge on businesses that use skilled migrant workers from outside the European Economic Area was introduced along with an English language requirement for public service workers.

If you need advice on Employment Law, don’t hesitate to get in touch. Go on, give us a call.

Leave a comment

Filed under Arbitration, Dispute resolution, Employment Law, HR Issues, Legal news, Mediation, Parental leave, Sick pay, UK Law, Unfair Dismissal

I want my holiday back!

Well with August upon us the holiday season is well under way with staff jetting off to the sun or even staying at home enjoying whatever hot weather we get here. Unfortunately things can go wrong on holidays, not least of which is the possibility of illness or injury.

So what can an employer or an employee do in those circumstances if and when an employee returns from two weeks’ holiday and claims that they were ill for half their holiday and then requests that this is credited to their holiday entitlement?

Well, the European Court of Justice has ruled that annual (holiday) leave and sick leave cannot be taken at the same time because they are for different reasons. Consequently an employee who is not able to take their annual leave due to sickness should be allowed to take the leave at a later date, even if that means carrying it forward to another holiday year.

Employers should therefore credit the sick days towards the employee’s leave entitlement and record the sick days accordingly as absence due to sickness.

Obviously this can be abused by unscrupulous employees in order to get more holiday days so employers should consider reviewing their sickness absence policy; especially when it comes to the notification and certification of illness.

Most employers have a sickness absence policy that requires employees to report their sickness by a particular time on the first day of their sickness absence and if they do not comply with this requirement then they are not entitled to sick pay. There is no reason, in this day and age with the widespread availability of email facilities and international texting why the employee cannot communicate the fact to their employer if they fall sick (depending, of course on how serious their condition is).

In addition after 7 days’ continuous absence the contract will usually ask that a medical certificate is provided. Generally, an employer should treat a medical certificate from a doctor, even if from another country, as evidence of illness, unless there is evidence that the certificate is not genuine or that the employee is not incapacitated.

For the purposes of determining eligibility for statutory sick pay, s.14(1) of the Social Security Administration Act 1992 allows employers to set their own rules on what evidence they reasonably require of employees’ illness. There is no restriction within the legislation on accepting foreign medical certificates.

As always both as an Employer or Employee, you should seek professional advice in these circumstances as each case should be treated on its individual merits.

Leave a comment

Filed under Dispute resolution, Employment Law, HR Issues, Sick pay