| Search hundreds of Norfolk Jobs in IT, sales, marketing, accountancy and more for employment opportunities, job vacancies and advice. |
|
birketts ilpEmployment Law Updates
If you would like to discuss anything you have read here, or wish to discuss another matter of Employment Law then please contact Jeanette Wheeler - Head of Employment Team, Norwich. 
Tel: 01603 756427 |
Issue 96 - November 2007 Failure to discuss options for alternative work with a disabled employee on long term sickness absence is not, of itself, a failure to make reasonable adjustments. Up until now there have been conflicting views as to whether, where an employee is on long term sickness absence, an employer has to discuss options for alternative work in order to satisfy its obligation to consider reasonable adjustments. In Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003], the EAT held that “a proper assessment of what is required to eliminate the disabled person’s disadvantage is … a necessary part of the duty [to make reasonable adjustments] …since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done”.However, in Tarbuck v Sainsbury Supermarkets Limited [2006the EAT held that the duty to make reasonable adjustments relates to what the employer actually does or does not do, not what the employer considers doing. It is the Tarbuck decision that has now been followed in Scottish and Southern Energy PLC v Mackay [2007]. Mr Mackay worked for Scottish and Southern Energy PLC (“SSE”) as an engineer since 1980 but became depressed following the introduction of working methods which he felt made his job stressful and his workload too high. In May 2003 he was certified unfit for work. Mr Mackay did spend some time shadowing colleagues doing alternative work with a view to returning to SSE, but for various reasons, these did not work out. As a result, SSE decided to commence its long term sickness procedure in July 2004. This dragged on for some time due to Mr Mackay’s health and in May 2005 SSE felt that it was no longer necessary to accommodate his continued absence. SSE then sent Mr Mackay a job profile for a possible future vacancy and Mr Mackay indicated that after a period of rehabilitation he would be interested in the role (SSE’s medical advisor felt that the role was unsuitable but could be appropriate after a period of rehabilitation). A meeting was held on 29 September 2005 and following that meeting SSE took the decision to dismiss Mr Mackay on the grounds that there was still considerable uncertainty as to whether Mr Mackay would be able to learn the necessary skills and whether he had the enthusiasm and commitment to do the job. The conclusion was that Mr Mackay posed an unacceptable risk and that he could therefore not be retained by SSE. Mr Mackay brought a tribunal claim for unfair dismissal and disability discrimination based on SSE’s failure to make reasonable adjustments. In the first instance, the Tribunal found that he was disabled and that no reasonable employer should have reached the conclusion that Mr Mackay lacked enthusiasm without actually discussing the issue with him openly. It stressed that the issue was not whether he should have been offered the job but whether the company should have explored the possibility more fully with him. The EAT upheld the company’s appeal however, and held the Tribunal was wrong to conclude that there was a failure to make reasonable adjustments by not exploring the possibility of the job more fully with Mr Mackay. The EAT stressed that a failure to carry out an adequate investigation does not amount to a failure to make reasonable adjustments. Employers should note that in this case the company did go to considerable lengths, over the period Mr Mackay was on sick leave, to attempt to rehabilitate him and get him back to work. There was therefore a considerable attempt from SSE to make reasonable adjustments. Collective Redundancies and the duty to consult over business reasons for closure…. In UK Coal Mining Ltd v National Union of Mineworkers [2007],the EAT overturned previous authorities on the duty to consult under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. Previous cases, includingincluding R v British Coal Corporation and the Secretary of State for Trade and Industry, ex parte Vardy [1993],have held that the obligation to consult does not mean that an employer has to consult about its business reasons for making the redundancies In 2005 UK Coal Mining Ltd (UK Coal) closed its colliery on safety and economic grounds. (Water had entered the colliery and within a few days the water level was too high. UK Coal therefore felt that it was not possible for production to continue. There had also been financial concerns over the previous few years.) This resulted in a proposal to make 158 employees redundant and so UK Coal commenced collective consultation with the NUM and BACM (the Unions). Shortly after that, the first compulsory redundancies took place. The Unions brought a Tribunal claim for failure to consult. At first instance, the Tribunal held that the reason for the closure was financial and that there was no credible evidence that the closure was related to safety. There had, therefore, been serious and deliberate failures by Coal UK in relation to its consultation obligations. Coal UK appealed, arguing that since there was no obligation to consult over the business reason to close the pit, and no obligations to give reasons for the closure at all, there could be no infringement of section 188 in circumstances where Coal UK voluntarily chose to give such reasons, even if those reasons were false or misleading. The Unions cross-appealed against the finding that Coal UK was not obliged to consult over the business reasons for the colliery’s closure. The EAT allowed the cross-appeal and concluded that previous cases (holding that there was no need to consult over the employer’s business reasons for closure) were no longer good law. Following amendments to section 188 in 1995, the scope of the consultation obligation was extended to consulting about ways to avoid dismissals by the addition of the words “ways and means of avoiding redundancies”. Consultation on avoiding dismissals therefore, must involve looking at the business case for dismissals and therefore consulting on the reasons for closure. Quick fire:
Employment Simplification Bill The Cabinet Office has published the Government’s draft legislation programme for the forthcoming year. One important inclusion to note is the Employment Simplification Bill which covers the following:
The idea is that these changes will save cost and time for businesses, trade unions and individuals and will provide greater clarity for all parties…watch this space!
Birketts LLP are proud sponsors of the EDP’s Norfolk Recruitment Awards 2007 – for more details see here. |
 |
