employment law in the uk

inability layoffs

Contrary to popular belief 'ill' is a potentially fair reason for dismissal, as they relate to the employee is in a position to which they were employed to do. However, in connection with the inability dismissals, the Employment Tribunal will consider the procedures by the employer prior to termination to determine whether the decision to dismiss was appropriate under the circumstances reasonable. An "appropriate" Employers are generally expected that all relevant medical evidence, with the employee and consider whether there are any steps that could be taken to the staff when they return to work. (Employers should also take care of the disability legislation and the need for appropriate adjustments.)

But what if the employee was sick, by the employer in the first place? Should this be taken into account when deciding whether the dismissal of workers is adequate?

This question was asked recently by the Employment Appeal Tribunal (EAT) in the case of Royal Bank of Scotland plc v McAdie (2006).

The Facts

McAdie woman was sick with work-related stress after her employer does not sufficiently address their complaints and the intimidating manner in which the process had been handled. After 9 months of absence, Ms. McAdie became an occupational health doctor diagnosed the "severe adjustment disorder secondary to alleged workplace, including harassment. The doctor expressed doubt that the condition could be treated because of the depth of ill-feeling by Mrs McAdie and concluded that a return to work seemed impossible. On the basis of this report, Ms McAdie was for reasons of incompetence. Then a claim for unfair dismissal.

The Employment Tribunal initially confirmed her claim that she was ill, by the way the bank was dealing with her complaint, and that this is of crucial importance in determining the reasonableness of the dismissal. In the Tribunal's opinion "no reasonable employer would have dismissed in these circumstances because no reasonable employer have found, would be under these circumstances. A reasonable employer would have the matter properly investigated at an early stage."

EAT Decision

However, the EAT overturned this decision. In their view, the fact that an employer may be the cause of the disability does not mean that it never effect a fair dismissal. While the cause of the illness of an employee was a factor to be taken into account, the focus must always refer to the adequacy of the employer action in relation to the circumstances that are already planned at the time of dismissal - not whether the employer in these circumstances in the first place.

In this case, the medical evidence was very clear and simple, the fact was that there is no alternative to dismissal. The Bank of the decision could therefore not be unreasonable. The appeal was allowed and the action dismissed.

Comment

The case of McAdie serves as a useful reminder of the dividing line between unfair dismissal claims and personal injury claims. Except in connection with cases of discrimination, the Employment Tribunal has no jurisdiction for claims for personal injuries. The appropriate action for an employee who suffers injury (physical or mental) as a result of a breach of the duty of the employer, it is a personal injury claim in the civil courts. However, this will require the employee to show that the injury was reasonably foreseeable and this can be a significant hurdle, especially in the "work stress" cases.

AND IN OTHER NEWS ...

Flexible Working Extended to Carers

The government has the flexibility of working hours (eligibility, Complaints and Remedies) (Amendment) Regulations 2006, which the right to flexible working to care for certain adults. The regulations will come into force on 6 April 2007 and will have the right to request flexible working to employees who are, or should be expected to care for a person who at the age of 18 and in need of care, and are either married, the partner or the civil partner of the employee, a relative of the employee or living at the same address as the employee. The right is a waiting period of 26 weeks were employed.

Obstruction of the Association

Carers of people with disabilities to acquire additional rights under the referral of Attridge Law v Coleman to the European Court of Justice. Although most discrimination protects employees from detrimental treatment on the grounds that they are with someone in a protected group (eg a white employee dismissed marry a black person), the same does not apply to the Disability Discrimination Act 1995 (DDA).

At first glance, the DDA only applies if the workers themselves have a "disabled person". The question before the Court is whether the Doha Round should be a wider interpretation to the discrimination of employees can a body due to their connection with a disabled person. If the applicant is the case, confirmed the scope of the Doha Round will be significantly expanded.