How (not) to sack someone

14 09 2009

As an employer, if you want to avoid your name appearing in the Metro or any of the other free papers, try to avoid sacking employees suffering from cancer by email.  This is the moral from the recent report concerning Melinda Bolnar, a 27 year old teacher suffering from bowel cancer and who had just endured seven months of chemotherapy and given a 30% chance of survival.  According to the report it is alleged that her private school sacked her by email.  I should point out that the case is due to be heard at an Employment Tribunal later this year and the above report are merely the employee’s allegations against her employer and not the proven facts.

The report probably doesn’t give the whole story but it certainly gives the impression that Melinda was sacked without any form of disciplinary or capability procedure.  If that genuinely is the case the school might find themselves in difficulty when the case does reach the ET.

So (assuming that is what happened) what should an employer do if it wants to terminate the employment of an employee suffering from long-term illness?

The first and most important question is why should the employer want to terminate the employee’s employment?  This will be at the heart of any subsequent litigation that may arise.  The usual answer given by employers is that they could not afford to keep the position empty whilst the employee was away or that temporary cover could not be extended indefinitely.  Much will depend upon the role performed by the employee and the extent to which it is reasonable for the employer to reach the conclusion that dismissing the employee was reasonable in all the circumstances.  The size and resources of the business will be important too. What action might be reasonable for a small employer to take will be greatly different from a multi-national PLC or, for example, the NHS. How the employer treated other staff in similar circumstances on other occasions will be relevant: what are the contractual sick pay provisions, if any?

There are only a limited number of grounds on which dismissing an employee will be fair.  They include capability to do the job.  This can mean lack of ability of the employee to fulfil their role (i.e. incompetence) or it could include inability to do the job through sickness.  Problems can arise for an employer when the employee takes lots of short periods of time off sick (whether genuinely or otherwise) but when, as in the type of case under discussion here the employee is off for weeks or months.   

A prudent employer will properly investigate the reasons for the employee being absent and will try and establish when they might return.  This will need to be done with sensitivity and tact, which means good communications between employer-employee are going to be vital to make this work.  It will probably need medical evidence to be obtained and a well-drafted contract of employment should include a clause which allows the employer to send the employee to a doctor of its own choosing.  If the medical evidence suggests that the employee will be fit to return to work, even if on a gradually stepped basis at first, in a fairly short space of time, the business will need to think long and hard before dismissing.  On the other hand, if the absence looks like being lengthy then the employer may be justified in bringing the employment relationship to an end, provided it does so on grounds of (in)capability.

Where difficulties arise (as in Melinda Bolnar’s case) is where the employee feels there are other grounds for dismissal.  The Metro report states that she is suing for disability discrimination.  Much will depend, as usual, on who said or did what and when.  To avoid difficulties of this sort an employer needs to act clearly and openly about what it is doing and why. 

It needs to follow a proper process, as laid down by the ACAS Code of Practice introduced this April. In brief this means the employer investigating properly, inviting the employee to a meeting to discuss the issues, allowing them to be accompanied by a work colleague or Trade Union representative and to make their point.  Finally, the employee should be informed of their right to appeal the decision if it goes against them.  If the employer gets it wrong they can not only face a claim for unfair dismissal (with the potential for the award to be increased by up to 25% if they are deemed to have acted unreasonably) but also a claim for disability discrimination.  Claims under the DDA are not capped at the £66,200 maximum compensatory award, as with unfair dismissal cases.

Of course, all the above leaves aside the moral issue of whether it is the right step to take but and Courts/Tribunals don’t make judgments on moral grounds: the newspapers do that.

If you are an employer or employee requiring further advice on any of these issues, please get in touch with me at michaelscutt@dalelangley.co.uk or on 0207 464 8433





Riam wins

14 08 2009

I was pleased to learn that Riam Dean, the law student who sued Abercrombie & Fitch for wrongful dismissal and unlawful harassment (because of her disability) won her case at the London Central Employment Tribunal.  According to The Independent today, she was awarded £7,800 compensation for injury to feelings, £1,077.37 for loss of earnings and £136.75 damages for being wrongfully dismissed.  It is reported that she did not succeed with her claim for “direct” disability discrimination which the ET thought was “not well founded”.   I would be interested to read the law report on this case, if it ever gets published, for the reasoning behind the decision. I’ve posted before on the case (click here).

It’s always good to see the style police take a battering.





Not the right look for Abercrombie & Fitch … allegedly

29 06 2009

Riam Dean’s case against the American clothing company Abercrombie & Fitch caught my eye this week. Last summer she had a holiday job working as a shop assistant at the Savile Row branch of A&F.  She alleges she was told to leave the shopfloor and work in the stockroom, for not complying with the company’s strict “look” policy.  Her crime?  She was wearing a white cardigan.  Apparently (and this was all news to me) A&F have a very strict policy on the appearance of their staff which doesn’t include white cardigans it would seem.  This however, wasn’t a claim under the Employment Equality (Prevention of Discrimination to Cardigan Wearers) Regulations, which have yet to be promulgated.  It was instead a claim under the Disability Discrimination Act because Riam wore the cardigan to disguise her prosthetic lower left arm.  She was self-conscious about the join between her arm and the prosthetic at the elbow. She says she had previously been given special permission to wear the cardigan.  The case is ongoing at the moment, the ET hasn’t decided whether to accept her allegations or not and it will be interesting to see the result.  However, if her allegations are upheld it will be a shameful episode for A&F. 

I would anticipate that she is claiming direct discrimination under the DDA.  S.3A of the DDA 1995 provides that

3A(1) For the purposes of this Part, a person discriminates against a disabled person if –

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in question is justified.

In order for a person to be able to claim that they are disabled within the meaning of the DDA they have to jump through a complex series of tests in order to qualify. S.1 defines disability thus;

 

s.1(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has 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.

 

However, there is an exclusion for people who are “severely disfigured”: Schedule 2 para 3(1) they can be deemed disabled without having to satisfy the above test;

An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.

Rian’s left arm probably counts as a severe disfigurement and I will await the full case report (if published) to see whether A&F took any points on this. From what I have read there was nothing to suggest that she could not physically do the job.

If she is successful she will be able to claim for injury to feelings as well as her economic losses, although if it was only a holiday job (she is a law student) those will be limited.  There is no qualifying period of employment required before being able to bring a claim under the DDA (unlike with unfair dismissals where 12 months continuous employment is required). 

The case also caught my eye because it reminded me of a friend who was recently told by her boss to cover up her arms, because the severe psoriasis she has on them, might put customers off. I should say she doesn’t work for A&F.  She was very upset, to say the least, and we discussed at some length what her rights were and what she ought to do.  She is still mulling it over. 

But back to Riam’s case, for more commentary on it have a look at the Daily Telegraph’s coverage – http://www.telegraph.co.uk/fashion/fashionnews/5637449/Abercrombie-and-Fitch-worker-with-prosthetic-limb-left-shattered–says-her-mother.html   and also take a look at Usefully Employed’s post on the same case http://blog.usefullyemployed.co.uk/2009/06/25/abercrombie-fitch-disability-row/





Will Court decision lead to an increase in dismissals?

16 06 2009

The House of Lords (HL) has finally handed down judgment in the case of Stringer v HMRC.  To say this decision has been keenly anticipated is an understatement.  I posted on it a little while ago.

The decision confirms that employees are entitled to accrue holiday pay whilst on long-term sick leave.  Some commentators have suggested that employers will want to dismiss those employees to avoid incurring even greater costs caused by the employee’s absence.  This will undoubtedly happen in some cases, but the risk to employers in adopting such a course is risky.  In doing so, they will risk the employee claiming for disability discrimination as well as unfair dismissal.  An employee on long term sick leave may well be able to successfully argue that they are disabled under the DDA.  Both employees and employers also need to bear in mind, of course, that one of the potentially fair reasons for terminating a contract of employment is capability (which includes incapacity to through illness/injury).  Any employer contemplating terminating an employee’s employment because of ill-health needs to proceed very cautiously.

The other main point of this decision is that employees who have previously been denied holiday pay whilst sick can renew their request for unpaid holiday pay for any period within the last six years.  This is because they will be able to argue that the employer has been in breach of contract and in the civil courts it is possible to sue for breach of contract for up to six years after the breach.  Employees will also be able to claim (in the Employment Tribunal) unpaid holiday pay as an unlawful deduction from wages. 

If you need further advice on this subject please contact me.