Providing information about sickness absence in a reference ruled as discriminatory

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services Commission audit report in 2006 the LSC contract with the CAB, for which Mr Mefful was responsible, was found to be “outstanding in quality and performance”.

He was absent from work from November 2009 to January 2010 due to grief and a stress reaction after he and his partner lost a baby. In 2012 he suffered severe and constant shoulder pain as well as total hearing loss in one ear, tinnitus and vertigo. An employment tribunal determined that these conditions meant that he was suffering from a disability within the meaning set out in the Equality Act 2010. He took 63 days off work between April and July 2012. In August of the same year he was made redundant.

Mr Mefful brought claims of unfair dismissal (upheld) and disability discrimination (continuing) but the judgment I am reporting here concerns separate proceedings relating to the provision of a reference by the CAB to a prospective employer. At the time the CAB had guidance concerning the provision of a reference which included the following:
“Any reference provided by the Bureau for an employee should be well researched and avoid unfounded opinions. If negative, it should not refer to matters not previously raised directly with the employee. If asked to speculate on suitability, it should be cautious and where necessary use a disclaimer. It should aim to offer a balanced view without being too glowing or too damning unless wholly merited.”
In May 2015 Mr Mefful applied for the post of Welfare Benefits Advisor at One Housing Group Limited. He was interviewed on 3 June and offered the post on 4 June, subject to a satisfactory reference. He was contacted by One Housing on 12 June because they wanted him to commence employment as soon as possible. At the time Mr Mefful was engaged in his separate employment tribunal claim and it turned out that the provision of the reference had been stalled because, in the words of Ms Harris, a former Chair of Trustees and a member of the strategy group, in an email sent to a colleague on 26 June, she described the reference application as being “very problematic”. She noted that “…the way that he has conducted himself in the [unfair dismissal and disability discrimination] litigation has been totally dishonest”.

Although denied by each of them when giving evidence, the tribunal found that Ms Harris and Ms James, CEO of the CAB, had consulted in detail about the reference. It was eventually completed by Ms James on 29 June. Sickness absences had been filled out in the form. In answer to a question about whether the CAB would re-employ Mr Mefful, the answer given was “no”.

Sickness absence at an all time low

The Office for National Statistics has published its annual report on sickness absence covering 2016, revealing that absence was the lowest recorded since records began in 1993. There were an estimated 137.3 million working days lost, equivalent to 4.3 days per worker.

The most common reasons for absence were coughs and colds (accounting for 34 million days / 24.8%), followed by musculoskeletal problems including back pain, neck and upper limb problems (30.8 million days / 22.4%). After “other conditions” the next distinct category was mental health issues, including stress, depression and anxiety, which accounted for 15.8 million days / 11.5%.

The statistics reveal that there has been a steady reduction in the overall number of sickness absences over a number of years.

The demographic breakdown highlights higher rates of sickness absence for women (2.5%  versus 1.6% for men). Older workers (2.9% for over 65s) are, unsurprisingly, more likely to be absent than younger ones (1.5% for ages 16 to 34). In  this context it is notable that the employment rate of those aged over 65 has more than doubled since 1993 and at October to December 2016 stood at 10.4% of the workforce (1.2 million people). While this trend indicates a need for employers to deal with more sickness absences, assuming that this trend continues in coming years, it is perhaps surprisingly counteracted by a reduction in the rate for 50 to 64 year olds from 4.4% to 2.7%.

The statistics revealed a 2.5% absence rate for smokers by comparison with 2.3% for ex-smokers and 1.6% for those who have never smoked.

The regional breakdown reveals that the highest sickness absence rates are in Wales and Scotland, followed by North East and North West England, while the lowest rates are in London and the South East. The research explains that this is because of the younger age profile, combined with a concentration of high-skilled jobs (which tend to have lower absence rates).

When does it become fair to dismiss an employee for long term sickness absence?

We are often asked what is the best approach to dealing with an employee who has been on extended sick leave. In general, it is necessary to establish that the employee is not going to be fit to return to work (on a full or partial basis) for the foreseeable future. Without this there is the risk that the employee could contend that they were about to return when they were dismissed or there could be a sudden improvement in condition which might curtail the expected absence. Of course, that assessment requires medical evidence so the process normally involves engaging the services of an occupational health consultant. Employers also need to be aware of potential disability issues.

These issues were recently considered by the Court of Appeal in O’Brien -v- Bolton St Catherine’s Academy. Ms O’Brien commenced work with the employer as an ICT teacher in 2005. In 2011 she was assaulted by a pupil. She did not suffer severe physical injuries but she was very shaken. On her return to work she was concerned that the school was not taking adequate steps to protect her. In particular she was dissatisfied by a refusal to reinstate a policy under which pupils who assaulted staff were automatically excluded.

In December 2011 she went off sick with a diagnosis of stress at work. After more than a year off work she was dismissed on 31 January 2013 on the ground of medical incapacity. her appeal against the decision to dismiss was rejected. Ms O’Brien presented a complaint of unfair dismissal to an employment tribunal. She also claimed that her illness constituted a disability and that she was either dismissed in circumstances giving rise to direct disability discrimination or that she suffered unfavourable treatment on account of her disability. She also claimed wrongful dismissal (breach of contract) because the school paid her in lieu of notice when it was not entitled to do so, as well as claiming arrears of holiday pay.

Her claims for automatic unfair dismissal and direct discrimination failed, as did the claim for holiday pay. However, she was found to have been unfairly dismissed and subjected to less favourable treatment on account of her disability. There was also a finding of wrongful dismissal.

In June 2015 the Employment Appeal Tribunal (EAT) found in favour of the school (save in respect of the relatively minor claim for wrongful dismissal). Ms O’Brien appealed to the Court of Appeal and judgment was handed down on 15 March 2017. Lord Justice Underhill considered the relevant law. He noted that evidence had been presented on behalf of Ms O’Brien at the hearing of the initial appeal against dismissal indicating that, according to an associate psychologist, there was, as at February 2013, a diagnosis of mild depression and severe anxiety. There was also a reference to post traumatic stress disorder but it was unclear whether this was in fact diagnosed. She contended that she was fit to return to work. In its decision on appeal the school determined that Ms O’Brien was not fit to return to work because her condition had not been fully treated and accepted that she was disabled within the meaning of the Equality Act 2010.

Balancing sickness absence and disability issues

Ever since the enactment of the Disability Discrimination Act 1995, now subsumed within the Equality Act 2010, there has been an uncomfortable overlap between dealing with ill-health incapacity as a potentially fair reason for dismissal and dealing with protection from disability discrimination. For example, the same facts might justify a fair termination of employment in the context of the usual grounds for dismissal but could also establish a valid claim for disability discrimination, which would constitute an automatically unfair dismissal.

The issue was most recently visited by the Court of Appeal in the case of Griffiths v DWP which is of particular significance for employers who want to take steps to minimise risks in this regard. Ms Griffiths was employed by the DWP from September 1976. In 2009 she began suffering from post viral fatigue and fibromyalgia. This meant that she was disabled within the meaning of the legislation. In 2011, following an absence of 66 days, she was issued with a formal written improvement warning. As a result she raised a grievance, contending that the employer should have made adjustments, first by discounting the circumstances leading to the warning because they were connected with her disability and, second, that the relevant policy should be modified so that she could have longer periods of sickness absence before facing sanctions than would be permitted for non-disabled employees. Both her grievance and the appeal were rejected.

As a result she presented a complaint of disability discrimination to an employment tribunal. Her claim was dismissed on the basis that no duty to make either adjustment had arisen and in any event it was not reasonable for the employer to be expected to make either of them. An appeal to Mr Recorder Luba QC in the Employment Appeal Tribunal was similarly unsuccessful.

The questions on appeal to the Court of Appeal were:

Was the majority of the Employment Tribunal right to conclude that there was no substantial disadvantage so as to engage the duty to make reasonable adjustments?
Was the EAT right to conclude that the proposed amendments were not steps within the meaning of the Equality Act?
If there was a duty and the proposed adjustments did constitute potential steps which might be taken did the Employment Tribunal misunderstand the claim in terms of reasonable adjustments?
If the Employment Tribunal did understand the claim was it entitled to find that it was not reasonable to expect the employer to make either of the proposed adjustments?

Having considered the relevant authorities at length Lord Justice Elias concluded that both the majority in the Employment Tribunal and the EAT were wrong to hold that there was not a substantial disadvantage sufficient to engage the duty to make reasonable adjustments. As he observed:
In my judgment, the appropriate formulation of the relevant [provision, criterion or practice] in a case of this kind was in essence how the ET framed it in this case: the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That is the provision breach of which may end in warnings and ultimately dismissal. Once the relevant PCP is formulated in that way, in my judgment it is clear that the minority member was right to say that a disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way. Whilst it is no doubt true that both disabled and able bodied alike will, to a greater or lesser extent, suffer stress and anxiety if they are ill in circumstances which may lead to disciplinary sanctions, the risk of this occurring is obviously greater for that group of disabled workers whose disability results in more frequent, and perhaps longer, absences. They will find it more difficult to comply with the requirement relating to absenteeism and therefore will be disadvantaged by it.

Dismissal based on sickness absence can be complicated

In Monmouthshire County Council -v- Harris the Employment Appeal Tribunal was asked to review a finding in the Cardiff Employment Tribunal that Mrs Harris was unfairly dismissed and that the dismissal was an act of disability discrimination. At a remedy hearing in September 2014 she was awarded £238,216.37. The Employment Appeal Tribunal proceeded on the basis of determining, in respect of the unfair dismissal, whether the Employment Tribunal erred in regarding procedural defects as sufficient to make the dismissal substantively unfair and whether there was a failure to consider the Council’s substantive grounds for dismissal. It also considered whether the Tribunal erred in failing to consider, in the context of discrimination, whether dismissal was a proportionate means of achieving a legitimate aim and whether or not it took into account irrelevant considerations.

Mrs Harris had worked for the Council since 1992. Latterly she was suffering from depression, sinusitis, asthma and an underactive thyroid. Accordingly she was disabled for the purposes of the Equality Act 2010. At a time prior to autumn 2010 and following occupational health advice she had been permitted to change her working arrangements to include working from home. Thereafter a new line manager, Mr Austin, was appointed. In January 2013 Mrs Harris complained that Mr Harris was not supporting her working from home and asked to return to her previous arrangements. Thereafter she commenced a period of sickness absence and did not return to work.

She attended meetings with HR in March and May 2013. On 28 May Mar Austin met with HR and it was decided that Mrs Harris’ employment should be terminated. She was notified by letter dated 4 June. the dismissal was due to take effect on 31 July. She appealed and the appeal was heard on 4 July. She objected to a lack of consultation, raised concerns about her working relationship with Mr Austin and complained that the decision to dismiss was based on an out of date report. The appeal was rejected.

In June and July she applied for ill-health retirement but this was declined. A medical opinion obtained in October 2013 concluded that although she was still unfit for work and likely to remain so for the foreseeable future, it could not be said that she would be permanently unfit until the normal retirement age.

At the resulting Employment Tribunal it was noted that the reason for dismissal was “absence which arose due to the claimant’s medical condition (a disability)”. There was inadequate warning of the possibility of dismissal and inadequate consultation. In addition there was a failure to make reasonable adjustments which also went to the question of the fairness of the employer’s behaviour. Mr Austin had effectively prevented Mrs Harris from maintaining the home working arrangements from January 2013. There was also a failure to take into account the updated reports that had been obtained for the ill-health retirement application. The fairness of the dismissal was also tainted by the active participation of Mr Austin. As for the discrimination claim the Council failed to make reasonable adjustments on the basis that if working from home was properly implemented from January 2013 there may have been no ongoing sickness absence at all. The Council appealed.

“Fit notes” have not reduced sickness absence

In 2010 I reported the introduction of fit notes as a way of focusing on making arrangements for employees to return to work rather than just being signed off without more. In 2014 the system was backed up with the launch of a Health and Work Service. However its scope has been restricted and there have been delays in implementation. Although scheduled to commence nationwide in April 2015 the scheme is currently being rolled out and appears to be limited to a telephone advice service. It requires the consent of employees/patients to participate.

In the meantime the EEF has published its Sickness Absence Survey 2015. Its conclusion is clear: “Five years on [from its introduction] – the government’s fit note isn’t working”. The comprehensive survey, conducted with 345 employers and covering 83,654 employees, is the twelfth national survey of its kind and SMEs accounted for 82% of respondents. According to the research, as at September 2014, only 5000 GPs from a pool of 40,584 had received training in health and work.

The survey revealed that 43% of employers said that the fit note had not helped employees to return to work, up from 35% shortly after the scheme was introduced in 2010. Employers also reported that the quality of GP advice on fitness for work has deteriorated.

It was noted that GPs and medical professionals are still issuing low numbers of “may be fit for work” fit notes and over a quarter of the businesses responding had not received any.

In terms of overall absence trends there is a sickness absence rate of 2.2% which equates to 5.1 sickness absence days per employee per year. However, as in previous years, over half of employees had no absence because of sickness. There was a notable increase in long-term sickness absence with the main cause being back problems and other musculo-skeletal disorders. However, for businesses with more than 500 employees the most common cause is stress and other mental ill health disorders.

holiday pay for long term sickness absentees

Two recent cases have shed some helpful light on the implications of the decision in Stringer and ors v HMRC which established that holiday pay continues to accrue while employees are on long term sick leave and are entitled to be paid for it.
First, in KHS AG v Schulte [2011] EUEJC C214/10 the European Court of Justice has confirmed that it is permissible for member states to impose a cut-off on the carry forward of unused holiday allowances for employees on long term sickness leave. In the particular German case the cut-off under the relevant collective agreement was 15 months, but the opinion of the Advocate General given in August suggests that on the same principle a cut-off period of 18 months (as recommended by the International Labour Organisation) would also be acceptable. This will no doubt be taken into account in the amendments needed to the Working Time Regulations to reflect the earlier decisions on accrual.

The end of “fit to work” notes and referrals

Back in March 2010 I reported about the proposed introduction of fit notes, noting that the Government expected savings to the economy of £240 million over 10 years, by aiding the recovery to work of sick workers. Well, it didn’t turn out that way. By July 2010 there were teething problems. Bogus fit notes were widely available on the internet and offered for £9.99 with an introductory “buy one get one free” offer. A further and entirely predictable problem was that employers receiving the fit notes were unable to decipher GPs’ illegible handwriting and therefore overlooked key elements of the process such as, for example, arranging a structured return to work.

In 2015 the Engineering Employers Federation (EEF) reported that the scheme wasn’t working. By September 2014 only 5000 GPs from a pool of 40,854 had received training and 43% of employers said that the fit note had not helped employees to return to work. The EEF’s head of health and safety noted that the quality of advice being given by GPs to help people back to work was deteriorating and that, in order to work, the scheme needed greater resources.

Late in November 2017 it was quietly announced that the scheme is to be scrapped.

“Our Line Manager has made discriminatory comments to a pregnant employee?”

Baby's crib with teddy“Our Line Manager, Rosemary, has made discriminatory comments about a pregnant member of staff, Thyme. Her comments include stating that Thyme “has baby on the brain” and has a “poor attitude”. Thyme has complained to the HR Director and is demanding action. What can we do and what could we be facing?”

Thankfully, the above scenario is hypothetical and not a client email. However, some managers do fall into the trap of making discriminatory comments against pregnant staff members and, in doing so, place their employers at risk.

As most employers are aware, pregnant workers obtain advanced protection from detriment under employment law. Contrary to popular belief, this doesn’t entirely prevent genuine concerns about an employee’s conduct and/or performance being formally investigated as long as they have nothing to do with their pregnancy. Unfortunately, in this case, the line manager’s comments appear to be entirely influenced by the Rosemary’s pregnancy and that is a big risk for the employer.

Solving the riddle – Uber, Addison Lee, workers, employees and the self-employed

Confusing road sign The media has been awash with stories about ‘worker’ status recently. The most obvious being the recent Employment Tribunal decision that Addison Lee drivers are workers, not self-employed as the private hire taxi firm argued, and the similar decision against Uber a few months ago. The appeal for the Uber case was heard last week in the Employment Appeal Tribunal, albeit the decision will probably be announced in December.

So then, you may conclude, all taxi drivers are workers? No. Okay, so most of them are self-employed? No. Well, they must be full employees then? Not really.

To get into this, we should acknowledge one thing. The definition of “worker” in the Employment Rights Act 1996 is purposefully fuzzy. No, that’s not legal jargon, but an acknowledgement that the status is meant to catch those people who fall between the more obvious categories of employee and self-employed. Stereotypically-speaking, employees are those who work in an office on a rolling contract for a specified number of hours per week and self-employed individuals work for their own business and are ‘their own boss’. Now, in practice, it isn’t that simple, but let’s use those examples as vague signposts for now because, otherwise, I’ll need to name enough qualifications and exceptions to fill an employment textbook chapter!

So, ‘worker’ status is designed for those who aren’t ‘full’ employees or self-employed. But where is the line? Where does a ‘worker’ merge into an employee and when does a ‘worker’ get so far as to be effectively self-employed?

These are very good questions. In fact, they are such good questions that a lot of employers, including Uber, Addison Lee and Deliveroo, end up finding out at Employment Tribunal precisely because it is hard to specify otherwise.