Early this year, there are reports that the number of employees calling in sick has risen to staggering levels. According to an absence management company, there are about 3. 6 million employees who called in sick the first week of January (Pitcher, 2008). The United Kingdom ranked as second as having the most number of employees with long term sickness in a survey conducted by the European Community (Tehrani and Rainbird, 2005).
The level of absence for UK was 27. 2% as against an average of 16. % of the European Union (Tehrani and Rainbird, 2005). An approximate figure of 14. 1 million days ‘were lost to stress and anxiety in 2001” (Tehrani and Rainbird, 2005). Absences due to stress and mental problems significantly affect both the employer and the employees. This matter apparently has been taken for granted and unaddressed for sometime until the enactment of the Disability Discrimination Act 1995 (DDA), Employment Act 2002, Employment Rights Act 1996, and the Health and Safety at Work etc Act 1974.
This paper shall show the manner by which the pertinent provisions of these pieces of legislation are applied to a hypothetical case and it shall also seek to identify and explain the remedies of an employee in case of violation of the provisions. Disability—Sickness Absence The Disability Discrimination Act 1995 defines disability as one having a ‘physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’ (Section 1(1), Part 1, DDA 1995).
The Industrial Tribunal has applied the definition to the different cases brought before it. For instance, in the case of Greenwood v. United Tiles Limited; the employee concerned was suffering from diabetes and was held to be disabled by the Tribunal (Greenwood v. United Tiles Limited 1101067/97/C). In the case of O’Neil v Symm & Company Limited, the Tribunal considered ME or chronic fatigue syndrome as a disability (O’Neil v Symm & Company Limited, 2700054/97).
Even abdominal pains which had no medical diagnosis with respect to its origin was declared as a disability by the Tribunal in the case of Howden v Capital Copiers (Edinburgh) Limited (400005/97) (Thompsons Solicitors web site, 2007). Anent mental disability, Walton v LI Group Limited case involved an employee who had learning difficulties. The Tribunal ruled that the employee is considered disabled under the DDA basing its conclusion on the testimonial evidence of the employee’s parents and the fact that the employee was receiving disability living allowance (Walton v LI Group Limited, 1600562/97).
The increased awareness for mental health and issues associated with it has accelerated in time, clinical depression is in fact already considered as a disability. Clinical depression is a ‘common mood disorder in psychology and psychiatry in which a person’s enjoyment of life and ability to function socially and in day-to-day matters is disrupted by intense sadness, melancholia, numbness or despair’ (Farlex Free Dictionary web site, n. d. ).
In the recent appealed case of O’Hanlon v Commissioners for HM Revenue & Customs, the Employment Appeal Tribunal ruled that clinical depression is considered a disability and therefore falls within the coverage of the DDA 1995 [O’Hanlon v Commissioners for HM Revenue & Customs (2007) EWCA Civ 283]. Applying the above discussed legal principles to the given hypothetical case, Vangeer has been diagnosed to be suffering from clinical depression. This was brought about by the incident when she accidentally pricked herself with a needle which she picked up while cleaning a bus in the depot of her employer.
This caused panic attacks and anxiety and for which she was given a year off from work. At this juncture, it is important to stress that the Health and Safety at Work etc Act 1974 requires the employers to ensure the health and safety of its employees in the place of work. Towards its realization, the law imposes upon the employer the duty to make ‘the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health’ (Section 2 (2)(a), HSWA 1974).
This means that Snail Pace Bus Company should have provided a system of work including protective gear for those who clean their buses (Health Safety Executive, 2006). In addition, the employer is also supposed to take measures to protect their employee who may return to work considering that there is more likelihood that the employee may be weak because of the injury or disability (Health Safety Executive, 2006). Vangeer went on sickness absence for about a year. Sickness absence may be short term or long term.
A long term sickness absence connotes serious medical reasons such as in the case of Vangeer. Long-term absence is ‘usually defined as a period of absence in excess of two weeks’ (Corcoran, 2006). When she returned for work, a new team leader made discriminatory remarks about her race. In hindsight, this may be considered as a violation of the Race Relations Act 1976. It may be shown that there is direct discrimination of Vangeer because she is black such as when she is treated less favourably than another (Thompsons Solicitors, n. d. ).
Moreover, it may be shown that there is some form of harassment under the Race Relations Act 1976 as amended by the New Regulations of 2003 (Thompsons Solicitors, n. d. ). Harassment is broad as to include ‘abusive language, excessive monitoring of work, excessive criticism of someone’s work etc. ’ (Thompsons Solicitors, n. d. ). It may be claimed that Vangeer suffered by because she was degraded, intimidated and her dignity violated. The violation of her dignity is subjective and the Tribunal would need to rule using the ‘reasonableness’ standard (Thompsons Solicitors, n. d.
In this case, the effect of Bob’s conduct has caused Vangeer to go on sickness absence for three weeks more based on the recommendation of her psychiatrist. Her transfer to another team was also suggested. Even before the period of sickness absence has lapsed, Snail Pace Bus Company was bought by Slow Coach Ltd. and Vangeer was called to a meeting about her absence. Thereafter, she was dismissed from her employment with pay. Her dismissal is illegal. ‘In relation to long-term sickness absence, the employer who dismisses an employee faces three potential legal risks’ (Lemon & Co. 2008).
Vangeer may file for a claim for unfair dismissal, for disability discrimination and for violation of her contract of employment. It is axiomatic that there exists between the employer and the employee, a contract of employment. It is an agreement whereby the rights and obligations of both the employee and the employer are specified (Direct. Gov web site, 2008). When the employee accepts employment, there is an automatic contract of employment that is created regardless of whether this has been reduced into writing (Direct.
Gov web site, 2008). Generally, employment contracts contain the following clauses: ‘commencement, term, job title and duties, place of work, hours of work, pay, holiday entitlement, pension, sickness absence, intellectual property, confidentiality, termination disciplinary, dismissal and grievance procedures, and collective agreements’(Clickdocs web site, n. d. ). The terms of employment in respect of hours of work, pay, termination of employment and other benefits are provided by the statutes.
This being the case, the employer is mandated to comply with the provisions of the statutes. For instance, dismissal procedures should be observed. In the instant case, Vangeer was invited to a meeting to discuss her absence and after a day she was dismissed from employment with pay. The Employment Act 2002, Part 3, Section 30 (1) provides that, ‘Every contract of employment shall have effect to require the employer and employee to comply, in relation to any matter to which a statutory procedure applies, with the requirements of the procedure’ (EA 2002).
The law requires that the employer observe the procedure in cases of dismissal as provided for under section 29, Schedule 2 Statutory Dispute Resolution Procedures, Chapter 1 and 2. Substantially, the employer is required by law to put into writing the circumstances and acts of the employee which he led him to initiate disciplinary or dismissal steps and invite him to discuss it in a meeting. The employee must have notice and reasonable opportunity to be apprised of the same. After the meeting, the employer must inform the employee of his decision and inform him of his right to appeal.
Should the employee opt for an appeal, another meeting should be scheduled before the dismissal or the disciplinary penalty shall have been effective (Section 29, Schedule 2, Chapter 1, EA 2002). In the instant case, Vangeer apparently may have been given an unfairly short notice and was not informed of her right of appeal if she was not satisfied with the decision. In retrospect, the jurisdiction over wrongful dismissal cases were lodged in courts until 1994 when jurisdiction was given to the Employment Tribunals which were authorised to grant only up to GBP25,000 (British Employment web site, 2007).
A contrary rule is observed with respect to unfair dismissals and discrimination cases, where the courts can award greater amounts of monetary damages. Wrongful dismissal results when employer fails to give the employee notice in accordance with the employment contract and without appropriate pay (British Employment web site, 2007). It has been observed though that it is better for the ‘employee to sue if the contract provides a fairly long notice period’ (British Employment web site, 2007).
Monetary damages in these cases are computed based on the amount of loss in terms of compensation and other benefits. Unfair dismissal occurs when the employee is terminated from employment and the employer in doing so had no valid and justifiable reason (Direct. gov web site, 2008). The Employment Rights Act 1996, specifically Part X sections 111 to 132 provide for the remedies in case of unfair dismissal. In a nutshell, there are three options: an order for reinstatement, an order for re-engagement or an order for compensation.
Reinstatement is when the Tribunal orders the employer to put the employee back to work with the same position and assigned tasks. There is re-engagement when the employee is placed back to work with a new post and tasks but under the same employer ((British Employment web site, 2007). In cases where the Tribunal issues an order for reinstatement or re-engagement, it cannot also order compensation [Wilson (HM Inspector of Taxes) v Clayton (2003) EWCA Civ 1657]. In the instant case, Vangeer was unlawfully dismissed because of her long absence.
The Employment Rights Act 1996 provide for the employer’s responsibilities in case sickness absence and dismissal are due to ill-health (Mace & Jones web site, 2007). Bad health may be considered a good basis for dismissal of an employee because it affects the ability and capacity of the employee to perform his assigned duties and tasks. The law mandates that in order for a dismissal based on ill-health can be considered as fair, the employer must observe and comply with the legal requirements (Mace & Jones web site, 2007).
The employee must be given the reasonable opportunity to recover and return to work before they can be dismissed’ (Lemon & Co. web site, 2008). In the instant case, Snail Pace Bus Company gave Vangeer about a year to recover from her clinical depression. A return to work programme was drawn up for her. Her relapse was instigated by her new manager. She was given a three week off from work and before the lapse of that time she was dismissed after the discussion with Slow Coach Ltd. Vangeer apparently was not given a reasonable opportunity to even use her three week off when in fact, the relapse was caused by management.
However, it should be pointed out that not in all cases shall the employer be liable even if he partly or wholly was responsible for the incapacity of the employee. In the case of McAdie v Royal Bank of Scotland  EWCA Civ 806, the Employment Appeal Tribunal reversed the decision of the Employment Tribunal when it ruled that the dismissal was justified even if the employer, partly or wholly caused the employee’s incapacity because based on the medical evidence obtained ‘there was no prospect of the employee returning to work’ [McAdie v Royal Bank of Scotland (2007) EWCA Civ 806].
Another requirement would be is for the employer to seek evidence of the medical status of the illness of the employee. The employer must request for medical reports from the employee’s physician upon the authorisation of the former (Lemon & Co. web site, 2008). The employer may also request for the examination of the employee by the employer’s own physician. The meeting should be for purposes of assessing the current medical state, the existing medical advice and medical evidence. In the case of Vangeer, Slow Coach Ltd. ailed to request the medical reports from her physician.
Moreover, the employee must be consulted through a series of meetings for purposes of exploring ways and issues for alternative options and reasonable adjustments (Lemon & Co. web site, 2008). Albeit, there is one meeting conducted with Vangeer, no exhaustive discussion seemed to have been made. Finally, ‘The employer must consider the possibility of making adjustments to the working environment in order to permit the employee to return to work’ (Lemon & Co. eb site, 2008).
When Vangeer was ill the first time, the employer made a programme which allowed her to start work late and go home early. However in the case of relapse, the suggestion that she be re-assigned to a different team was not deliberated upon and carried out by Slow Coach Ltd. It is the responsibility of the employer to seek and accept suggestions from the employee on how she can work when she returns.
In a complaint for unfair dismissal, the Employment Tribunal shall take the following factors into consideration: ‘nature of the employee’s illness, the likely duration of the illness, the nature of the job, the needs of the employer, the employee’s length of service, the type (and amount) of sick pay paid to the employee and alternative employment’ (Lemon & Co. web site, 2008). The most important factor that will be considered is whether the employer took measures in gathering information and ascertaining medical reports from which he would base a fair and reasonable conclusion and decision.
There must be recent, comprehensive and competent medical findings (Direct. gov web site, 2008). He must also comply with the procedures in dismissing an employee in accordance with the Employment Act 2002 and the Dispute Regulations 2004 (Direct. gov web site, 2008). Failure to follow the “statutory minimum dismissal and disciplinary procedure” shall make him liable to ‘a minimum basic award of 4 weeks pay. Furthermore, any compensation awarded by an Employment Tribunal may increase by 10-50%’ (Direct. gov web site, 2008). There is no distinction between sickness absence and disability.
In the case of Clark v Novacold (18901661/97) ‘the Industrial Tribunal concluded that there should be no distinction between the two, and dismissal for sickness absence does in fact relate to the disability and accordingly is prima facie unlawful’ (Thompsons Solicitors web site, 1997). According to Solicitor Michael Corcoran, if the disability is the cause of the long term sickness absence and the employee was in fact dismissed, such dismissal is tantamount to discrimination unless it is shown that dismissal is justifiable (Corcoran, 2006).
The lack of knowledge of Slow Coach Ltd. may have on the disability would be irrelevant and immaterial to the issue of whether Vangeer was treated less favourably (Corcoran, 2006). Under Section 20 of the Discrimination Disability Act 1995, direct discrimination is committed when the employee is ‘treated less favourably’ than another not suffering from such disability and that such treatment is by reason of the employee’s disability (DDA 2005).
Moreover, the employer shall also be liable if he failed to make reasonable adjustments so that the disabled employee can continue his or her employment (HSE, n. d. ). The law requires that the employer ‘go an extra mile’ for the disabled employee, albeit the law does not set parameters of its extent. However, case law has laid down legal principles based on each of the precedent-setting case (HSE, n. d. ).