Monthly Archives: August 2013

Understanding The Access to Medical Records Act

In sickness absence management it is important that employers investigate the situation fully which will include gaining access to medical records.  In the majority of cases this will be so they can provide support to the employee to enable them to return to work, possibly with reasonable adjustments if they are classed as disabled under the Equality Act.  In other cases, it may be to consider ill health termination or disciplinary action if the employee has not been truthful with regards the reasons behind their absence.

The Access to Medical Records Act allows an employer to gain access to those medical records with the full permission of the employee.  If an employer has a situation where the employee refuses to comply with such a request, then they must make a decision on their ongoing employment based purely on the information to hand.  If an employee has high sickness absence and refuses to allow access to their medical records then a possible outcome could be dismissal.

An employer can use a medical professional to gain a report on the employee’s medical condition and its long term prognosis, to find out whether they are classed as disabled and may need reasonable adjustments for example.   Whilst the employee’s GP can be approached, they will be only interested in the best interests of their patient and the information they may provide may be lacking for the employer.  An occupational health advisor, on the other hand, will work in the best interests of the employer and provide a well rounded report so the employer can take action.

The employee should provide written consent to a report being produced on their medical condition and agree to a possible medical examination.  The process should be open and transparent with the employee fully involved.  They have the right to see the report before it is provided to the employer and have 21 days to so.  They can amend the report if they do  not agree with certain aspects that could be misleading or are incorrect.  If the medical professional refuses to amend the report the employee can withdraw consent that the report is provided to the employer or may add their own written explanation to be attached to the report.


What is Continuous Service In Employment?

Continuous service is the length of time an employee has been with an organisation without a break.  Continuous service begins on the first day of employment.  It is important to calculate this carefully as it has implications for various employment rights,  For example redundancy pay and unfair dismissal rights are applicable after two years, notice periods increase according to statutory limits of one week per year of service and maternity pay applicable if a woman has 26 weeks service at the 15th expected week of confinement.  A fixed term worker is deemed to be permanent after being issued with successive fixed term contracts for four years.

Staff on fixed term, temporary and as and when contracts all accrue continuous service when contracts are renewed or a new contract is issued.  All contracts whether permanent or not should contain the continuous service date provided there has been no break of at least a statutory week.  A statutory week runs from Sunday to midnight on Saturday as outlined in the Employment Rights Act 1996.

However, some breaks in normal employment still count towards a continuous employment period. These are:

  • sickness, maternity, paternity, parental or adoption leave
  • annual leave
  • employment overseas with the same company
  • time between unfair dismissal and an employee being reinstated
  • when an employee moves between associated employers
  • military service, eg with a reserve force
  • temporary lay-offs
  • employer lockouts
  • when a business is transferred from one employer to another
  • when a corporate body gets taken over by another because of a legal change


Disability In Employment – Learning Lessons From the Past?

An interesting programme began this week on Channel 4 called Benefits Britain 1949 which aims to show how various categories of benefit claimants were treated when the new benefit system came into force in 1949.  The programme aims to provide lessons for today’s welfare state which is groaning under the increasing benefits bill.  One category of benefit claimants that was looked at was that of the disabled.  This category was represented in the programme by Craig Newman a 24 year old with spina bifida who despite having applied for over a 1,000 jobs had never worked.  To mimic life in 1949 his television and laptop were taken away and he was given the equivalent amount of cash that he would have received then, an amount much less than he receives today.

In 1944 the Disabled Persons (Employment) Act was created to provide a framework for employment for those people who had become disabled during the second world war.  The country needed to get back on its feet and need every available pair of hands to help it do so.  The government recognised the value that disabled people had, perhaps an idea that has been very much lost in recent years.

The Act established a register of disabled persons, aided them in obtaining jobs through rehabilitation and training, and imposed the requirement that employers of 20 or more people employ a minimum of 3% of disabled persons.  To help secure jobs for persons listed in the register, a specialised employment placement service was created to monitor employment vacancies that could be filled by persons on the register.  A National Advisory Council for the Employment of People with Disabilities was also established.

In 1949 around 94% of disabled people were in employment compared with  2013 where only 46% are employed.  Since the implementation of the Disability Discrimination Act 1995 the concept of disability has widened to incorporate medical conditions that may not be physically obvious such as cancer, diabetes, depression, etc.  These days 1 in 5 people has a disability – approximately 11 people million with 4/5 not having been born with one.  According to the Office of National Statistics, the most commonly reported conditions are mobility, lifting and carrying.  A quarter of disabled people do not have any qualifications compared to 1 in 10 of the general population.

According to the DWP half of all disabled people can’t find work and, of those who are employed, 1 in 2 work in low paid, short term and part time roles.  A disabled man’s annual earnings are £1,700 less than his abled bodied comparator and for a disabled woman the gap is £5,000.  Due to low earnings many disabled people live below the poverty line. Attitudes towards disabled people are very negative with many disabled people reporting acts of hostility against them.  This demonstrates lots of discriminatory practice and unacceptable behaviour in the UK.

However given the right support and opportunities disabled people can do well in life.  Statistics show that disabled people in university education are just as likely to achieve good grades as non-disabled students.  In the world of sport Team GB in 2012 brought home 120 medals of which 34 were gold and excelled in horseriding, swimming and athletics.

 In 1949 disabled people who were prepared to undergo training to help them find work received a large sum of money to allow them to do so.  In the programme, Craig was prepared to receive training and was given one day’s work experience in a ticket agency call centre.  He appeared to be a natural quickly making his first sale.  Because he did so well on the day he was then offered a permanent job which he was overjoyed about.

Disabled people deserve a chance to work and add to diversity.  Perhaps some simple lessons from the past could help many of them achieve their desired goal.







Not So Protected Conversations

On 29 July 2013 the government introduced the concept of “protected conversations” which allows for employers and employees to have discussions about the ending of the employment relationship.  The concept is to extend the “without prejudice” rule in circumstances where there is no dispute.

However a protected conversation will only apply in cases of unfair dismissal.  Therefore there are certain circumstances that employers will not be protected from possible employment tribunal claims.  These include:

• with any discrimination complaint, whistle blowing complaint, complaint of automatic unfair dismissal, or breach of contract claim will not be covered. If any such claim is conjoined with the ordinary unfair dismissal claim, in practice the tribunal is likely to hear evidence about the discussions.

• Any discussion which is not “with a view to the employment being terminated on agreed terms”. It will therefore be important that the discussion is not simply cataloguing the difficulties experienced with the employee; it must be a constructive dialogue with a view to a settlement.

• Even if the discussion includes the making of an offer in exchange for the employee’s exit, there remains the possibility that the employee is offended by the conversation and that they regard it as unfair. In those circumstances, the employee may seek to raise a grievance concerning the discussion. It would usually be regarded as a breach of trust and confidence not to hear and address a grievance which might result ultimately in a constructive unfair dismissal claim. It may be unrealistic in practice to imagine that in such a constructive unfair dismissal claim the tribunals will be willing to exclude evidence of the original discussion which will forma an important element of the case.

• “improper behaviour” (in the opinion of the tribunal) will not be covered by the rule. This is not defined in the legislation, and will require to be established through caselaw.

Therefore, employers should be wary about how they approach any discussions they intend to have with underperforming and difficult employees otherwise discussions could be used against them.  


What Is The Shifting Burden of Proof In Sex Discrimination Claims?

I recently represented a case of sexual harassment in the employment tribunal.  Due to the huge amount of conflicting evidence that was heard, the tribunal panel had to consider the shifting burden of proof.

In many sex discrimination there is no clear cut evidence and there will be different perceptions from those involved therefore the test for establishing discrimination is central to any case.  The test has two stages.

First the claimant must establish that their case, on the balance of probabilities, amounts to discrimination and that the reason for their unfavourable treatment was because of their sex. The tribunal will consider what inferences it can draw from the evidence and whether discrimination took place.  This can include an evasive reply to a discrimination questionnaire or a breach of a relevant code of practice.  The respondent can rely on:

(a). Disputed events 
(b). Circumstances of an alleged comparator are different
(c). Reason for differential treatment of a comparator e.g. different conduct
(d). Discriminator behaves unreasonably/unfairly to all irrespective of sex,
race etc
(e). Special reasons for atypical conduct e.g. ill health, pressure of work

If the claimant is able to show discrimination then the burden of proof shifts to the employer who will have to show that on the balance of probabilities, that the treatment was not on the grounds of sex. Their explanation must be backed by evidence.

Whilst many cases will fail at stage one, if a claimant can show discrimination took place then stage two will be a formality.


Undercover Boss – Gambling with Staff Morale And Profits

Over the last few weeks I have been watching Undercover Boss a series on Channel 4 where the CEO of a failing company goes undercover in disguise to mix and mingle with the employees to try and uncover problems that might be causing its demise.

This week the CEO, Peter Harvey, of Quicksilver, a chain of gambling outlets visited four slot machine outlets to discover why the profits the company had been making in previous years had turned into a loss.   Changes in government legislation had not helped eg the smoking ban, but the CEO managed to uncover a lot of tricky HR issues that needed to be dealt with.

Quicksilver have always consider itself to be “people centric” but in reality the CEO discovered that was not true.  Many of the staff were disengaged and thinking about seeking other jobs.  A young female manager in Maidstone was made to feel very vulnerable having to regularly deal with drunks since the company’s decision to operate a 24 hour policy without thinking through the security consequences.

A talented engineer had been told to shut up by management after putting forward the idea of having a workshop to mend the machines, even though it would save the company money.  He was so disengaged that instead of covering the nine sites that were part of his patch on a daily basis he was only visiting two or three sites to fix machines having been allowed to manage his own time. That meant that some sites had machines that were not working therefore losing the company money.  The manager in Newquay had also had his good ideas for improving the business quashed by senior managers.

Another manager had successfully grown her business by tweaking company policy about giving free bets only after customers had paid out for sessions themselves.  She was considering not returning to work after her maternity leave due to the two hour commute to work.

Staff engagement is key to business profits.  If staff are engaged then they work harder which builds on the bottom line.  The programme demonstrates that senior managers are key to encouraging engagement particularly through listening to staff and taking on board their ideas.

The CEO recognised the need to encourage staff motivation and due to his discoveries informed the staff that there would be reward scheme introduced where staff could receive £250 in vouchers for good suggestions.  The engineer was informed that a bonus scheme would be introduced to incentivise the work.  Small changes like this can make a huge difference to staff morale and ultimately business profits.



Promoting Wellbeing In the Workplace

There has been an increase in wellbeing in the UK according to the news recently.  Apparently our feeling of wellbeing is more than that of other countries in the EU and we have now overtaken France.

It seems that over recent years one of the latest hot topics to emerge  the management of wellness in organisations. Lead by the government initially, it began in 2005 with the appointment of the first national director of health, work and wellbeing strategy to spearhead initiatives that promote and improve health in the workplace. The trend towards managing wellness, a proactive process, is a counter-balance to managing absence, which is a reactive process.

The proactive stance of tackling wellness is probably due, on the whole, to rising stress levels, increased working hours and to a backlash to the implementation of overzealous rigid absence management policies.  The cost of absence in the UK has continued to rise over the years, thus defeating business objectives to tackle this issue and providing an argument that it has not worked.It can be argued that increasing absence levels have been caused by:

• Generous sick pay provision

• Increasing employee age and perceived high levels of job security

• High levels of stress, job intensity, job repetitiveness and worker passivity.

• Low levels of working-time flexibility, job responsibility and control.

• Poor absence management and lack of accountability for the costs of sickness absence.

• Lack of information about the normal duration of illnesses and recovery periods from operations.

• High reliance on public health systems and their physicians to certify absence.

• Failure to put in place a company wellness policy and rehabilitation programme.

• Conflicts between sickness absence policy, health and safety policy and work-life balance policy.

A major problem with many sickness absence policies is that they concentrate mainly on the action to be taken when an employee becomes unwell, setting out bureaucratic procedures to record and deal with sickness absence whether long or short term.

The implementation of a wellness policy, on the other hand, addresses the wider and positive issue of employee wellness. The aim should be to minimise sickness absence through a mix of health awareness, clearly defined entitlements and tight management controls.

Issues that could be covered in a policy to promote the avoidance of absence include working time and second jobs, stress management, disability, work/life balance, violence and bullying, healthy working environment, controlled temperatures, job content/satisfaction. The policy could then be linked or incorporated into an existing absence management policy.

A starting point to gauge the level of opinion in how employees perceive the management of wellness in an organisation could be to undertake a survey. The findings will then give key information to take action.

So whose responsibility should be it be to implement a wellness strategy/policy? Well, as with all key business initiatives, senior management should be on board and should drive the issue from the top. It should be, the responsiibility of middle management to then continue to drive the process throughout the organization coordinated with the support of HR, occupational health and health and safety where appropriate.

The wellness agenda can be supported through the tailored introduction of flexible working, employee assistance programmes, counselling services, health promotion, regular health screening and checks, life-style medicals, diet and health education, nutrition programmes, medical insurance, annual flu jabs, periodic polio immunization, occupational health support, risk assessment and management, stress management, gym membership, exercise promotion, access to clinics for staff not covered by health insurance, who need treatment to recover quickly. A mix of some or all of these suggestions could make a significant change within organisations improving attendance and retention quite dramatically. The cost of introducing many of these initiatives are easily outweighed by the reduction in absence management costs.

As with all strategies and policies the management of wellness should be monitored and reviewed on a regular basis to check whether progress is being made. The growth in wellness is linked to a growing awareness of the contribution of well-being to productivity and high performance working. According to the CIPD, research suggests that employees in poor health cut productivity by around 20 per cent, which adds weight to giving serious consideration to the issue of managing wellness.

Wellness management should be a holistic strategy combining better health and better management, thus ensuring individuals are able to perform and so improving productivity and, therefore, the bottom line of the business.