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The Equality Act 2010 ensures employers make reasonable adjustments for employees with a disability and protects them from suffering detriment due to their condition. Cancer is included expressly as a disability but what exactly does this include?
In the case of Lofty v Hamis the Employment Appeal Tribunal confirmed that the ‘pre-cancerous’ skin condition Lentigo Maligna did amount to cancer within the definition of the Act and therefore awarded protection from detriment.
This condition is understood to have the existence of cancer cells sat in the surface of the skin, but isn’t typically deemed cancer as the cells cannot spread to other parts of the body. The EAT have assessed the specific terminology by the Equality Act and have found that cancer was not specifically defined and so it was possible to consider the claimant’s condition to fall within the definition.
This case serves as warning to employers to consider the full facts of an employee’s condition before concluding hastily whether they have a disability or not. There are many pre-cancerous conditions that could result in employees needing treatment, time away from work, adjustments in the workplace and recovery periods; it may not always be obvious whether the condition results in the benefits offered by legislation.
Initial preventative or investigatory medical appointments are not generally considered to be included in the protections of the Act as there is no diagnosis. Appointments for prostate checks, smear tests and breast examinations are examples of appointments that may be necessary to prevent and/or detect cancer cells, however they generally pre-date a diagnosis. Where the employer will have to be more cautious is when there is a discovery of a condition that could result in cancer in the long term; in these cases it is advisable to make allowances for the employee.
Our consultants are ready to advise you on a range of employee management options in light of medical conditions which require reasonable adjustments in the workplace or may result in higher frequency sickness absence.
It is sensible to ensure you have a sound absence/ill health management policy in place and always ensure that an employee feels welcome to share sensitive information with you. The more comfortable your employees feel with you the more trust and confidence you will generate and the better your business can function whilst honouring your responsibilities to employees.
April brings a raft of changes in the HR arena and although we've previously detailed 2017 and 2018 rates for the National Living Wage and National Minimum Wage, below we have information on the other increases you should be aware of:
If you have any queries about any of the above changes and how it will affect your business, please get in touch.
In July 2017 the Supreme Court made a landmark ruling which abolished Employment Tribunal fees. As expected this has resulted in an increase in legal claims being presented.
In a March 2018 report by ACAS it is shown that since the fees were abolished notifications to the early conciliation process have increased by approximately 500 per week (up from 1700), meaning an increase of 25%.
Where ACAS has been unable to assist employers to settle a dispute through the early conciliation phase the Claimant employee is able to proceed to Tribunal. Statistics show an increase in new claims being submitted to the Employment Tribunal by 57%, compared to the same period the previous year.
The abolition of fees has removed the barrier from employees seeking legal redress and the opportunity to do so is clearly being taken up. Under the circumstances it is ever more essential to make sure your employee management is up to date, legally compliant and that you take advice whenever you face a potential problem with an employee.
This is what we do on a day to day basis for all of our clients, get in touch to find out how we can help prevent those little disputes from becoming big ones.
Employer: ‘I’ve told my employee they can’t come back to work, what do I do now?’
Employment law adviser: *Sigh*
The first piece of advice to our reader is…don’t do this! Always take advice before you say anything to an employee that even vaguely suggests they can’t continue working for your business.
In the case of Cosmeceuticals Ltd v Parkin the Employment Appeal Tribunal determined that the statutory definition of the Effective Date of Dismissal is the date that a summary dismissal is communicated to the employee, even where notice ought to have applied and wasn’t given. And in the light of the recent ruling that tribunal fees were unlawful, it’s even more important to follow correct procedures.
In this particular case the employer had concerns over Ms Parkin’s capability in her role. During an informal meeting the employer told her that she would not be able to return to the role she held and made poor attempts to discuss alternative employment for her. She was later put on garden leave and the employer wrote to her, 28 days after the initial meeting, to confirm her dismissal giving notice of four weeks from the date of the letter.
The Employment Appeal Tribunal found that the written dismissal letter giving notice was not the event that terminated the contract. The words spoken by the employer in the first meeting were sufficient to terminate the contract of employment summarily and without due notice. The fact that the employer later attempted to cover up his error by then following due process was irrelevant and the Effective Date of Dismissal occurred on the date of the first discussion.
This concerns advisers for a number of reasons:
This case serves as a sound reminder that employers are best advised to take careful advice on a case by case basis before challenging a problem employee. Once the wrong thing has been said there is nothing your advisers can do to change this. A dismissal can be judged to have taken effect from verbal conversations and attempts to remedy the situation may not work. Timing and approach is everything when it comes to avoiding legal disputes.
Most workplaces are heavily reliant on IT and digital systems which improve the speed and versatility of communications for businesses. Whilst doing so it also provides workers with more opportunities for personal, non-work related, communication which employers often want to keep to a minimum.
The question of whether it is reasonable for an employer to monitor communication systems in the workplace is a constant tug of war between the employer’s legitimate right to protect their business data and prevent abuse of the systems, and the employee’s human rights; in particular Article 8 ‘Right to respect for private life and correspondence’.
In the particular judgement of Barbulescu v Romania the issue concerned an employee who had been using instant messaging on his work PC, for private communication, despite being aware that it was against the workplace rules and resulted in his dismissal from employment. In January 2016 the European Court of Human Rights judged that the monitoring of content in personal communication in the workplace was not a breach of human rights subject to applying the practice proportionately and within reason.
In a somewhat surprising turnaround the Grand Chamber of the ECHR has reversed the decision on appeal. The facts of the case are that whilst Barbulescu knew that use of the IT systems were forbidden for private use, he had not been notified that the content of the messaging service would be monitored. In the absence of him being able to mark the communication as private he had a right to believe that the correspondence would remain private. The monitoring of the communication was therefore a breach of his right to respect for a family life and correspondence. Additionally the Court noted that the employer had failed to take adequate precautionary measures to prevent there being a substantial interference with his right as many colleagues had seen the correspondence and open conversations about it followed. The employer ought to have limited access to the content to those who needed to know for the purposes of disciplinary proceedings.
Whilst this case deals with a messaging system the principle equally applies to personal emails, text messages, phones calls and potentially the use of certain websites. In order for employers to monitor and review the content of any communication it is not adequate to simply outlaw personal use, it follows that employers must have taken adequate steps to inform employees that there would be invasive monitoring in place and further that such monitoring is applied fairly.
Opsium’s advice is to check and re-draft your employee handbooks where necessary, make sure your data protection policies are up to date and crucially that there has been sound training provided to all staff who have any control mechanism to monitor the activities of other staff members to ensure that monitoring is controlled, proportionate, reasonable and kept as confidential as possible.
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