News & Updates
Employment Law Bulletin June 2022
- Assistance Animals at Work for Mental Health
- Changes to the Rules on “Fit Notes”
- ACAS Uplift
- Dundee Plater Loses Unfair Dismissal Claim
- Hermes Sued for £850,000 for Failings that Led to Employee Death
Welcome to June's Employment news briefing, providing a summary of some of the recent employment judgements and updates.
If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email firstname.lastname@example.org
Assistance Animals at Work for Mental Health
Is there an option for bringing your furry four-legged friend into the workplace as a companion?
This question has recently come up after an individual with severe autism sued Sainsburys for not letting him in with his assistance cat. Unless he has his cat with him, he finds the noise and crowds within the store very difficult to manage. He argued that there is no difference with this than that of a guide dog and that by excluding his cat is effectively excluding him for health reasons and that is unlawful discrimination.
Firstly, the employee will need to be disabled to have a reasonable adjustment regime apply to them. A mental health issue which might make a support animal a reasonable adjustment is not easy to measure and may not be formally diagnosed. There is also the question of necessity – the individual might prefer to be in the company of their cat or dog as a comfort, but are they really at a substantial disadvantage if their pet isn’t there?
Looking at how an employer might reasonably refuse such a request may be things like health and safety concerns, for example, the impact on other employees. Though an employer has a duty to make reasonable adjustments, those are unlikely to include those with allergies or phobias to cats and dogs as well as the smell and noise of animals in the workplace.
You’d also have to consider whether or not the animal has been trained. Guide dogs, for example, are fully trained and have a formally recognised qualification. But can you really train a cat?
The question to consider for reasonable adjustment purposes is whether the animal helps the employee to overcome any disadvantages implicit in their health condition. There is a big difference between a guide dog being the employee’s eyes and a cat or dog that just helps ease stress or anxiety.
Changes to the Rules on “Fit Notes”
As of 1 July 2022, the rules on Statements of Fitness for Work (“fit notes”) will change. Nurses, occupational therapists, pharmacists and physiotherapists will now also be able to issue them – though this must still follow an assessment of the individual and fit notes cannot simply be issued on demand and “over the counter” whenever one feels like it.
The current fit note regime with doctors came into force back in April 2010, which replaced statutory sick notes. Fit notes allowed individuals to be signed “may be fit for work” and if that option is selected, the doctor issuing the fit note is required to confirm any adjustments the individual may need to help them return to work e.g. a phased return, amended responsibilities, change of hours. However, this is merely guidance from a doctor as they do not have any real knowledge as to that particular workplace.
The government considers that by allowing a wider range of healthcare professionals to issue fit notes will “support and empower better conversations about work and health between employers and staff by making it easier to get this advice certified by the most relevant healthcare professional”.
Some may argue that this move is merely a “sticking plaster” to cover the shortage of doctors and GP waiting times, or whether it actually will help both employees and employers in managing absences.
Rentplus UK v Coulson recently looked at whether a tribunal erred by awarding the Claimant the maximum 25% Acas uplift. The employment appeal tribunal found that the tribunal did not err and that the Respondent’s procedure that they followed was a sham.
This judgment is useful for reminding us those questions of what a tribunal should consider when there is a potential Acas Uplift:
• Does the claim raise a matter to which the Acas Code applies?
• Has there been a failure to comply with this code?
• Was that failure to comply unreasonable?
• Is it just and equitable to award an uplift due to the failure – and if so, by what percentage?
Dundee Plater Loses Unfair Dismissal Claim
The Claimant, a plater, was made redundant from his position at the start of this year. Whilst the respondent admitted dismissal, they claimed that appropriate steps had been taken to mitigate the claimant’s loss.
The claimant was employed on a temporary contract and during a quiet period for the respondent, the respondent wished to reduce employee numbers and did so based on scoring them on length of service, skill and safety. The claimant later in the year received an “at risk” letter and subsequently, a letter of dismissal after two consultations. He was offered a position as an agency worker at the respondent’s sister company, but did not accept.
The claimant’s case was based on his view that he had been incorrectly scored in the matrix – but he did not raise this issue until two months afterwards. However, his case failed as the employment tribunal found that the reason for dismissal was redundancy which is a potentially fair reason for dismissal, meaningful consultation had taken place between the respondent and the claimant and the potential incorrect scoring did not have any effect as the Claimant still would have been in the lowest percentile. It was held the respondent based its decision on good faith and on the information available at the time. The dismissal was genuinely to do with a downturn in available work.
Hermes Sued for £850,000 for Failings that Led to Employee Death
Hermes Parcelnet Limited recently pled guilty to health and safety breaches that were committed between 1 August 2018 and 19 March 2019.
On the 19 March 2019, an employee sustained crash injuries whilst undergoing training on the operation of a trailer mover. Mr Kennedy, the employee, was hit in the chest by the trailer and subsequently pinned against a stationary trailer whilst using it to reposition a laden articulated trailer within the depot yard. Mr Kennedy unfortunately died two days later.
The court held that the company had failed to ensure that their in-house trainer was given enough instruction on how practical training should be delivered. There was also a failure to ensure that the trainer used two trained banksmen at all relevant times during the training.
Hermes has since removed all trailer moves from service across the company’s UK sites.
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