What’s new in the law on managing ill-health and disability? Anna Denton-Jones 25 th 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 9 th March navigating employment law

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 navigating employment law

Assessment Within 5 days By phone Employee has to consent Purpose: explore the barriers to RTW navigating employment law

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 navigating employment law

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) navigating employment law

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 navigating employment law

Disability Update Equality Act navigating employment law

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” navigating employment law

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 navigating employment law

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 navigating employment law

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 navigating employment law

Worry for employers 2 How long is someone suffering from medical condition X likely to need to take off work by reason of that condition? Griffiths v DWP navigating employment law

Worry for employers 3 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 navigating employment law

Worry for employers 4 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? navigating employment law

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 navigating employment law

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 navigating employment law

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? navigating employment law

First harassment/obesity case Bickerstaff v Butcher 2014 Colleague liable for the comments made that were obesity related (Employer had settled claims – vicariously liable) navigating employment law

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 navigating employment law

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 navigating employment law

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? navigating employment law

@refreshinglaw Contact Us: