Elias LJ said that it is almost an automatic response of employers to suspend in situations such as these, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established.  Suspension should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is.  Suspension will often make the employee feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least because the suspension appears to add credence to them.

Crucial to the reasonableness of a suspension is the particular circumstances of the case.  In this case the Court of Appeal did not believe that there was any real risk of patient treatment of this kind being repeated, given that it had resulted in these charges.  Also, attention should be paid to the record of the employee when assessing future risk.

Elias LJ also stated that, whatever the justification for the suspension, he found it little short of astonishing that it could ever have been thought appropriate to refer this matter to the Police.  In his view it almost defied belief that anyone who gave proper consideration to all the circumstances of the case could have thought that they were under any obligation to take that step.  He recognised that it is important that hospitals in this situation must be seen to be acting transparently and not to conceal wrongdoing, but they also owe duties to their long serving staff.  Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face.  Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct.

Under the DDA 1995 (whose provisions on reasonable adjustments are substantially mirrored in the Equality Act 2010) the duty to make reasonable adjustments was triggered where a provision, criteria or practice (‘PCP’) applied by the employer, or any physical feature of the employer’s premises, placed a disabled person at a substantial disadvantage in comparison with non-disabled persons.  Once triggered, the duty obliged the employer to make such adjustments as were reasonable to prevent the PCP or physical feature having that effect.

The EAT’s decision is a useful reminder that reasonable adjustments are primarily concerned not with making the disabled person better, but with enabling him or her to remain in work or return to work.  The problem for the claimant in this case was that, given her unfitness for any productive work, neither of the proposed adjustments (rehabilitative work in the form of light duties, or a career break) would have mitigated the effect of the PCP

The facts of the case were that S was signed off sick in March 2007 with a chest infection and diagnosed with CFS in September.  The Trust accepted that S was disabled for the purposes of the DDA.  During her absence she had several meetings with her manager to see how to get her back to work.  She also met with occupational health on several occasions.  The Trust warned S on several occasions that her prolonged absence may lead to her eventual dismissal on the grounds of capability. In January 2008 occupational health advised that the Trust should focus on getting S ‘back to work in some capacity (as distinct from doing productive work)’.  He suggested a reduction in hours, phased return, change of role, but that she was currently ‘unfit for work of any kind’.  In February 2008 occupational health suggested a career break to protect her employment while she recovered.  The Trust said it could not support a career break.

By April 2008 S had informed the Trust that she neither wished nor was able to return to her post as a specialist occupational therapist, and that she did not want to return to her former workplace in any capacity as it was ‘too busy’.  She could not identify a suitable location to return to, and declined offers of administrative work because of limited IT skills.  She refused to take up the Trust’s offer of IT training.  The Trust invited S to a meeting in June which she did not attend.  The Trust invited her to a further meeting, stating that of she did not attend it might have to consider ‘employment options including termination’.  In response S resigned stating that the Trust had not accepted the medical advice of her GP or occupational health, and that she had no confidence in the Trust facilitating her eventual return to productive work.  She argued that the Trust had failed to make reasonable adjustments to facilitate her return and that she had been constructively dismissed.

At first instance, the Tribunal took the view that the Trust should have made attempts to give S something by way of rehabilitation, even if not productive work, e.g. light duties for two or three hours, two days a week.  Accordingly, the Tribunal held that S had been constructively dismissed.  The Trust appealed.  The Tribunal did not believe a career break was a reasonable adjustment – S appealed on this point.

The EAT upheld the Trust’s appeal, and dismissed S’s appeal.  It agreed with the Tribunal that the PCP in this case was the expectation that S would perform her full role within the contracted hours, and that she was therefore placed at a substantial disadvantage because, due to her disability, she was unable to multi-task, deal with clients or set up emotional barriers, and could not work in a noisy environment.  Any proposed reasonable adjustments had to be judged against the criteria that they must prevent the PCP from placing her at that substantial disadvantage.

The EAT referred to an earlier EAT decision which held that a phased return to work could be a reasonable adjustment, but that this was not authority for the proposition that rehabilitation was a reasonable adjustment.  The EAT held that the Tribunal was wrong to hold that it would have been a reasonable adjustment for the Trust to suggest some ‘light duties’ for S as a form of rehabilitation, since rehabilitation would not mitigate the effects of the PCP.  The EAT held that the Trust had acted appropriately, by, for example, offering IT training, which S had declined.  The Trust had ascertained that there was no job that S was capable of doing at the time, whether part-time or otherwise.  Moreover there was no chance of her returning to her original post.  Nor had S disagreed with any of the letters detailing the Trust’s efforts to find her a suitable job.  S had decided not to attend two meetings to discuss possible adjustments.

In addition the EAT held that offering a career break would not have amounted to a reasonable adjustment.  In the EAT’s view, if the Trust had proposed a career break, S would have had legitimate cause for complaint at being moved from long-term sickness absence with benefits (including, at the time, half pay) to an unpaid career break, which would bot have prevented the disadvantage caused by the PCP, or alleviated her inability to multi-task, deal with clients, or set up emotional barriers.

The EAT held that the Tribunal had erred in finding that S had been constructively dismissed, as not only had the Tribunal’s erroneous finding been based on the Trust’s failure to make reasonable adjustments, but also because it could find no breach of the implied term of trust and confidence by the Trust.

The EAT’s decision is a useful reminder that reasonable adjustments are primarily concerned not with making the disabled person better, but with enabling him or her to remain in work or return to work.  The problem for the claimant in this case was that, given her unfitness for any productive work, neither of the proposed adjustments (rehabilitative work in the form of light duties, or a career break) would have mitigated the effect of the PCP – namely the expectation that she would perform her full role within the contracted hours.

The increased amounts will apply where the event that gives rise to the entitlement to compensation or other payment (for example the effective date of dismissal or redundancy) occurs on or after 01 February 2012.

It starts by assuming that employees will fall into one of two groups: those who plan to take time off (to attend or volunteer at the Games) and those who don’t have any plans to take time off, and who either may want to watch some of the Games while at work or who have no interest in the Games at all.

There is useful information for both employers and employees.

The increase in the qualifying period for unfair dismissal is one of the most controversial employment law decisions yet announced by the Government. In the response the Government explains that, although the majority of consultation respondents disagreed with the proposal, it considered that business stakeholders, who were supportive of the move, were best placed to evaluate its likely impact on job creation. Although the Government accepted that an increased qualifying period would not reduce the number of claims by as much as it had originally forecast, it did not think it would lead to an increase in discrimination claims, as there is little evidence that, where there are grounds for a discrimination claim, individuals currently choose to pursue an unfair dismissal claim instead.  The Government believes that extending the qualifying period would improve business confidence to recruit and retain staff.

The Government also intends to allow employment judges to hear unfair dismissal cases alone, unless they direct otherwise. The proposal is simply a money saving measure.  The Government will use pending academic research on the value of lay members to evaluate the first year of judges sitting alone in more cases, to see whether a reversal or extension of the policy is necessary.  It will also alter the default constitution of the EAT so that judges will always sit alone unless they direct that members should be involved.

The Government also intends to allow tribunals to levy financial penalties, payable to the Exchequer, on employers found to have breached employment rights where the employer’s behaviour in committing the breach had ‘aggravating features’. The Government expects penalties will be imposed where the breach involves unreasonable behaviour, e.g. negligence or malice. The financial penalty will be half the amount of the total award with a minimum threshold of £100 and an upper ceiling of £5,000. Where a non-financial award has been made, a tribunal can ascribe it a monetary value to enable a financial penalty to be made. The penalty will be reduced if there is prompt payment, by 50 per cent if paid within 21 days.

Other measures contained in the Government’s response include:

• increasing the limit for deposit orders from £500 to £1,000
• increasing the limit for cost awards from £10,000 to £20,000
• requiring witness statements (where provided) to be taken as read, unless a judge or tribunal directs otherwise
• granting tribunals the power to direct parties to bear the costs of witnesses’ attendance, where a witness has attended pursuant to a witness order; and that the party ultimately losing a case should reimburse the successful party for any such costs already paid out
• clarifying S.147 of the Equality Act 2010 to address uncertainty as to the validity of compromise agreements covering discrimination issues.

The regulations to implement proposals in relation to increasing the maximum amounts for costs and deposit orders, witness statements, witness expenses, judges sitting alone in unfair dismissal cases and extension to the unfair dismissal qualifying period will be brought forward shortly. The Government intends these regulations to have effect from April 2012, subject to Parliamentary procedures.

The introduction of fees is aimed at reducing vexatious claims.  The exact amounts of the up-front fees and the arrangements for their payment are the subject of a consultation which will start at the end of November; fees will then start to be charged from April 2013. There may be higher fees for cases where the compensation claimed tops £30,000. Any individual who wins their case will see the fees refunded.

The scheme is expected to have arrangements for less well-off people to have the fee waived or reduced, but the reality is that it is likely to deter some such people from pursuing meritorious claims.

The median award for unfair dismissal claims in 2009/2010 was just under £5,000, so a fees of £1,250 could well act as a deterrent when the uncertainty of any tribunal claim is considered.

The Government has announced that the qualifying period for the right to claim unfair dismissal will be extended from one to two years on 6 April 2012. The Government’s announcement pre-empts its response to its consultation ‘Resolving Workplace Disputes’, which proposed the increased qualifying period. While business groups have welcomed the move, some commentators have expressed concern that the change may lead to an increase in the number of discrimination claims, for which there is no qualifying period.

The Government claims that increasing the period to two years, combined with other proposals in the ‘Resolving Workplace Disputes’ consultation, should see the number of unfair dismissal claims drop by around 2,000 per year.
Click here for press release: http://nds.coi.gov.uk/content/detail.aspx?NewsAreaId=2&ReleaseID=421449&SubjectId=2

• How extensive is the use of social media in UK workplaces?
• What are the challenges and opportunities of social media for managing employment relations?
• What does good practice in this area look like?

In a survey published in August 2010, 55 per cent of respondents admitted accessing social networking sites while at work.

The use of social networking creates significant challenges for managing risks to individual and organisational reputations alike.  It is all too easy and enticing for some to make comments that reveal work-related misbehaviour or express views that damage the reputation of the employer.

Case law in this area is gradually increasing, although it is still limited. Acas advises employers to consider putting in place appropriate policies and procedures which send the message to employees that ‘online conduct should not, in essence, be different to offline conduct.’

The guidance can be found at:

http://www.acas.org.uk/media/pdf/b/d/1111_Workplaces_and_Social_Networking.pdf

In 2009 the statutory dispute resolution procedures were repealed and replaced by the Acas Code of Practice on discipline and grievance. The Code places less emphasis on the mechanics of how to manage disciplinary issues, grievances and dismissals, instead providing greater flexibility for parties to resolve problems at an early stage.

Among other things, the research finds that:

• while there were high levels of awareness and understanding of the Code among HR staff and employee representatives, this was inconsistent, with awareness lowest among employers with less formalised HR functions
• generally, HR staff and line managers considered the Code made tribunals fairer for employers as they could no longer be ‘struck down’ for failing to follow exact and specific processes
• the repeal of the statutory procedures decreased the number of grievances as there was no longer a need to file every potentially relevant grievance in case the claim progressed to a tribunal
• organisations with policies revised in line with the Code reported an increased emphasis on early resolution before using formal procedures
• uncertainty about the legal status of the Code and how tribunals may interpret the Code’s key principles of ‘fair’ and ‘reasonable’ has, for some employers, increased their worry about tribunal claims; and
• some saw the code as ‘weakening’ the employee position by removing the obligation for employers to comply with set processes.

For further information see:

http://www.acas.org.uk/media/pdf/4/r/Evaluation-of-the-Acas-Code-of-Practice-on-Disciplinary-and-Grievance-procedures-accessible-version-.pdf

Employment Law Newsletter March 2011