Absence Management A conference with CBI and AXA Employment Law Case Studies Audrey Williams Partner, Employment Law & Discrimination Eversheds LLP David Young Partner, Litigation Eversheds LLP

Employee (“C”) is employed by employer (“R”) as a secretary, doing typing and other administrative tasks while sat at a desk C has a back injury and has a 2-hour drive to and from her workplace each day C’s back injury is such that she regularly has physiotherapy and takes strong pain killers. She takes regular sick leave C asks R if she may work from home some days. R is not in the habit of letting its employees work from home R says no because C would have the same setup at home – sitting at a desk in front of a PC – as at work. R does not think that to let C work from home would be a reasonable adjustment Do you think C would be successful if she brought a disability discrimination claim against R? If R agreed to homeworking what key issues do you need to consider in setting up a “home office”? Case Study 1: working from home

Employee (“C”) is a 59-year-old guide for a London tours company, his employer (“R”). C has 30 years’ service C suffers a stroke and is signed off as unfit for work R has a pension scheme which allows for an employee’s retirement on the ground of permanent incapacity from the age of 60, with an enhanced pension After some time of sick leave and due to C’s inability to walk, R dismisses C on the ground of his incapability No medical reports were commissioned by R prior to the decision to dismiss C claims unfair dismissal at a Tribunal What approach to C’s claim do you think a tribunal would take? Case Study 2: long-term ill health

Employee (“C”) is diabetic and is employed by employer (“R”) as a porter in R’s hotel restaurant. R is a leading hotel company C, on more than one occasion, is rude to customers as a result of the changes in his blood sugar levels R disciplines C. The DDP is followed properly After more incidents, R dismisses C. C appeals but the appeal is unsuccessful C claims unfair dismissal at a Tribunal and wins because in the event R did not follow its own policy on disabled employees Do you think the Tribunal would reduce C’s basic award because of his conduct? Case Study 3: conduct and illness

Employee (“C”) is a marketing manager at a law firm and is diagnosed with bowel cancer. She has been working for the firm for 2 months C continues working and R allows C to come into work later, which means C misses departmental meetings C’s course of chemotherapy is successful and C enters complete remission. C takes up again her hobby, aerobics C asks R if she may continue coming in later. R refuses on the ground that it no longer has to make an adjustment for C C misses the morning meetings C has had only 10 months with R and R wants to dismiss C due to her attitude to the morning meetings Having followed the DDP, would R be safe to dismiss C? Case Study 4: recurrence of a disability

Case Study 5: IVF treatment Employee (“C”) is a fund manager with an investment bank, her employer (“R”) C is undergoing IVF treatment. C takes regular sick leave due to the effects of hormone treatment R is a busy organisation with demanding clients and targets. It cannot afford to have a key individual who is frequently unavailable R dismisses C having followed the DDP. At the time of dismissal, R’s doctor has successfully fertilised C’s eggs but they have not been transferred to her uterus Would the dismissal be sex or pregnancy discrimination and unlawful?

Case Study 6: Maternity Pay vs Sick Pay Employee (“C”) is a recruitment officer with a firm of accountants, her employer (“R”). C is pregnant C is currently on sick leave due to complications with the pregnancy, and is in receipt of full pay She has been on sick leave for 4 weeks. R’s policy is to pay full pay for the first 4 weeks of sickness C’s period of maternity leave is to begin tomorrow. R’s maternity leave pay is at the statutory level and is significantly less than C’s wage From tomorrow R wants to stop C’s sick pay and start paying her maternity pay. Can R lawfully do this or is C entitled to sick pay/could she complain of sex discrimination?

Case Study 7 – Workplace Accident Employee D witnessed a workplace accident in which a colleague V was seriously injured and subsequently died in hospital D was extremely shocked by the event and was sent home after providing his contact details to the Police who attended the scene D subsequently sent in a doctor’s note confirming stress-related absence but returned to work a few days later Shortly after D’s return the Police ask him to attend an interview with them and the HSE inspector D asks for support and advice in how to respond and expresses concern that the interview will bring back the stress and trauma of what had happened

Case Study 7 To what extent can D’s employer provide the support and advice requested Is D obliged to attend the interview? Should D take someone with him to the interview? Does D need legal advice? If the employer shares D’s concerns about the effect of an interview how should that be addressed with the Police? What are D’s employers obligations towards D generally in terms of his welfare? What are D’s employer’s obligations in relation to the Police/HSE investigators?

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