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Safeguarding mental health: essential for your construction workers, good for your business

The UK’s mental health is currently under scrutiny with high profile dignitaries, businessmen and organisations all helping to raise awareness of the problems it can cause in the workplace. Many campaigners come from the construction industry – an industry not renowned for its workers’ empathy and compassion. Like diversity in the construction industry, which we commented on last month, mental health has, traditionally, been one of those topics everyone avoids both on and off site. But this is not a new topic for construction: back in 2014, Building considered why talking about mental health is taboo in construction. Building focused on the hidden health and safety risks that mental health problems pose in the workplace which can be just as serious a threat to workers as physical injuries and fatalities.

Click here for the full article from our Construction team: https://www.dentons.com/en/insights/articles/2017/march/15/safeguarding-mental-health-essential-for-your-construction-workers-good-for-your-business

 

Safeguarding mental health: essential for your construction workers, good for your business

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

The government has produced a consultation paper, “Work, health and disability: improving lives”. The paper highlights the following striking statistics:

  • 1.8 million employees on average have a long-term sickness absence of four weeks or more in a year;
  •  ill health among working-age people costs the economy £100 billion;
  • sickness absence costs employers £9 billion a year;
  • there has been an increase of over 400,000 in the number of working-age disabled people in the UK since 2013, taking the total to more than 7 million;
  • 8 per cent of employers report they have recruited a person with a disability or long-term health condition over a year; and
  • less then half (48 per cent) of disabled people are in employment, compared to 80 per cent of the non-disabled population.

Over 3.3 million disabled people are now in work; however, many disabled people find employers reluctant to give them a chance. Disabled people also struggle with the interplay between work and the benefits system, which is not tailored to helping them stay in work. The government paper signals a desire for change (although this change may not happen overnight). The paper seeks employers’ views on areas including:

  • the key barriers preventing employers of all sizes and sectors recruiting and keeping the talent of disabled people and people with health conditions;
  • information that it would be reasonable for employers to be aware of to address the health needs of their employees;
  • reform of statutory sick pay to encourage a phased return to work;
  • how to ensure that all healthcare professionals recognise the value of work and consider work during consultations with working-age patients; and
  • the role of doctors in providing work and health information, making a judgement on fitness for work and providing sickness certification.

Views are sought from various respondents including both large and small employers, people with health conditions and disabled people, families, friends, teachers and carers. The consultation closes on 17 February 2017. Responses can be filed here.

Calling HR: time to give your views on the work, health and disability green paper on “improving lives”

Insight: UK Employment Law Round-up – September 2016

UK Employment Law Round-up In this issue, we look at whether a job applicant can gain protection under the Framework and Equal Treatment Directives if the purpose of the application is to gain the status of someone who can make a claim to gain compensation.

In our case law review, we will also re-visit what constitutes “normal remuneration” when calculating holiday pay and whether a reasonable adjustment for a disabled employee can extend to payment protection.

We provide guidance on how offers of employment should be made to ensure that communication about employment is not misinterpreted by prospective employees.

We also report on the most recent developments regarding the Apprenticeship Levy and the changes to the taxation of termination payments.

Read the full newsletter here.

Insight: UK Employment Law Round-up – September 2016

“I’m sick, honest. My self-certified sick note says so!”

Representatives of the British Medical Association (BMA) met recently to discuss the possibility of allowing employees to take up to 14 days’ sick leave from work without a doctor’s note. Currently, workers suffering from a common ailment, such as flu or a sprained ankle, can sign themselves off work and are not required to obtain a fit note from a doctor until after seven calendar days’ absence.

At the BMA Annual Representatives meeting, doctors voted overwhelmingly for the extension of self-certification from seven to 14 days. They also voted for a change in legislation to allow other health care professionals such as midwives and nurse practitioners to complete fit notes for patients.

There is much support for this new proposal with many clinical professionals stating that employees should be trusted as they find them to be honest about short-term sickness. Others argue that this extension from seven to 14 days has merit as it will relieve the increasing workload of medical professionals and improve the service for other patients who are in greater need of doctors’ appointments.

However, Paul Foster, the regional development manager for the Federation of Small Businesses in Cumbria and Lancashire states that “the average rate of sickness absence in the UK was found to be 9.1 days a year at a total cost of £28 billion.” Therefore, there are concerns that allowing employees to extend the period of self-certified sickness absence could see this rate substantially increase with many employees abusing the system to “pull a sickie”. Other commentators worry that the potential rise in absence may adversely affect employers who may be burdened with excessive payments of sick pay where it is not truly warranted. Employers can manage this risk by amending sickness pay policies to safeguard against employees taking unfair advantage of the extension.

Recent reports suggest there are 150,000 more people demanding appointments than seven years ago, yet the number of available doctors has not increased to meet this demand. It is this issue with capacity that is the real driving force behind the BMA’s proposal.

Despite this amendment, there is nothing to stop an employer from challenging what the employee has said or from requesting that an employee has an examination with an occupational health consultant. As discussed in our blog post on 29 March (“Pulling a sickie”), where an employee “pulls a sickie” when not actually ill, this may amount to dishonesty and a fundamental breach of trust and confidence. Therefore, any false declaration under both the existing and proposed self-certification system could amount to gross misconduct and lead to dismissal. Consequently, employers should remind their employees of the serious repercussions that can result from untruthful absence from work and dishonestly claiming sick pay.

“I’m sick, honest. My self-certified sick note says so!”

Insight: UK Employment Law Round-up – April 2016

29280_Employment-Round-Up_THUMBNAIL In this issue, we consider the requirements of recent legislative changes including the new whistleblowing regime for financial institutions and the updated employment rates/limits for 2016/2017. Hot on the heels of International Women’s Day, we also explain how the spotlight on diversity continues with the release of EHRC guidance on improving diversity at senior levels of business. Another complicated area for clients can be dealing with issues surrounding PHI schemes and we analyse a recent decision in this field.

Read the full newsletter here.

Insight: UK Employment Law Round-up – April 2016

New employment rates and limits

The new employment rates and limits for 2016/17 came into effect today, 6 April 2016.

Limit on a week’s pay £479
Maximum basic award for unfair dismissal or statutory redundancy payment £14,370 (30 weeks’ pay)
Compensatory award for unfair dismissal £78,962 or 52 weeks’ gross pay, whichever is the lower
Statutory Sick Pay £88.45 (no change)
Statutory Maternity Pay, Statutory Adoption Pay, Shared Parental Pay (prescribed rate) £139.58
Statutory Paternity £139.58

 

New employment rates and limits

“Pulling a sickie”

Welcome back from a long Easter weekend break. Hopefully you are all feeling refreshed and you’ve returned to a reinvigorated workforce. However, it will be interesting to see how many employees “pull a sickie” today after an over-indulgent long weekend.

In the recent case of Ajaj v Metroline West Limited, the EAT held that “pulling a sickie” when not actually ill can amount to dishonesty and to “a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.” Such behavior could therefore warrant dismissal on the grounds of gross misconduct.

Of course, consideration has to be given to the specific facts of each case in deciding whether there has been an act of gross misconduct.  In Ajaj, the employee had a significant period of absence in which he was dishonestly claiming sick pay.

Where employers do have concerns about the genuineness of an employee’s sickness absence, they should ensure that they follow a fair investigatory and disciplinary process and that any disciplinary action taken is proportionate.

“Pulling a sickie”

Out of time, but not out of the running

The EAT handed down its judgement in the appeal of Abertawe Bro Morgannwg University Local Health Board v. Morgan this month. The case is a reminder of the ability of the Tribunal to extend time for a claimant to bring their claim.

Ms Morgan was a psychiatric nurse therapist. Her employer dismissed her for being incapable of work due to reasons of ill health. She had been absent for 17 months due to severe depression. The Claimant filed claims to the Tribunal of disability discrimination (including breach of the duty to make reasonable adjustments), harassment and unfair dismissal.

The Tribunal heard the claim in early 2013. It upheld the claims of harassment arising from the conduct of two individuals, and the reasonable adjustments claim. The Tribunal found the Board should have re-deployed Ms Morgan to a suitable role. The Tribunal noted that Ms Morgan had presented all claims outside the normal three-month time limit, with one claim being made some three years after the incidents that gave rise to the claim occurring. However, the Tribunal decided that it would be just and equitable to extend time.

The Board appealed to the EAT. The EAT did not agree with the Tribunal’s findings on the reasonable adjustments claim and the EAT remitted the case to the Employment Tribunal. It also found the Tribunal had erred in its decision to extend time since it should have looked at the claims separately and considered the reason for Ms Morgan submitting the claims late. The EAT also remitted these matters to the Tribunal.

The matter did not come before the Tribunal until 9 February 2015. At the hearing the Tribunal agreed to extend time for the reasonable adjustments claim. On the harassment claims, the Tribunal decided to only extend time for one complaint.

The Board appealed against the Tribunal’s decision. The EAT referred to section 123 of the Equality Act 2010. This provides:

“(1) [Such a complaint] may not be brought after the end of –

(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks is just and equitable.…”

The EAT noted that it remains for the Claimant to persuade the Tribunal to exercise a judicial discretion to extend time. It also noted the Tribunal will do so if persuaded that, taking account of all relevant circumstances, it is “just and equitable” to do so. The Tribunal will consider the period of delay in presenting the claim. It will consider the reason(s) the Claimant did not present the claim within the initial three months and during any following period of delay. The Tribunal will consider the credibility and acceptability of the reasons. Finally, the Tribunal will consider the prejudice that each party will suffer because of a decision to extend or not to extend time.

The EAT undertook a critical analysis of the Tribunal’s reasoning in finding that time could be extended. It looked at the prejudice to both parties in extending time. The EAT was mindful of the fact Ms Morgan had been poorly and unable to pursue her claim and that if it did not extend time she would be unable to bring a well-founded claim. It also considered the Tribunal’s finding that Ms Morgan was pursuing an internal grievance intending to fully resolve her concerns. Her ill health also delayed this. The EAT did criticise the Tribunal for not expressing its reasons in a better way. However, it found the Tribunal did not take into account any matters which it should not have, or reach a conclusion which could be described as perverse. Therefore, the EAT found no basis on which to interfere with the Tribunal’s decision.

The case will now be remitted to the Employment Tribunal to determine appropriate remedies.

Out of time, but not out of the running