Employment Law Update - July 2016
Whilst we are experiencing a little bit of a lull in new employment legislation, I thought it would be helpful to look back at two pieces of case law from the past 6 months. They relate to HR issues that you may regularly face. Some practical advice and guidance is provided.
Case One: Department of Transport v Sparks (High Court Judgement - April 2016)
This case relates to the caution that should be taken when implementing and making changes to your employee handbook.
The employee handbook in this case was of a typical format, divided into two parts: Part A was expressly stated as incorporated into employees’ contracts and Part B contained various policies expressed to be guidance relating to the employment relationship and operation of contractual terms and conditions.
In the first instance the employer sought to reach agreement on changes to their attendance management policy, however when agreement wasn’t reached with trade union representatives, they unilaterally imposed the changes. The key change being a new trigger point for formal absence monitoring, from 21 days to 5 days.
The High Court found in favour of the employees, on the grounds that it was reasonable to conclude that the provision of the handbook relating to the attendance management policy was incorporated into the contract of employment. As the change was detrimental to the employee, agreement to this change needed to be reached.
Advice and guidance:
- Your employee handbook needs to clearly state that its contents are non-contractual if you wish to make changes and amend policies and procedures without reaching prior agreement with your employees
- Non-contractual policies and procedures can be changed without agreement however it is good practice to inform employees of such changes
- Any changes to contractual terms must be agreed with employees and/or representatives, this may include policies and procedures forming part of the employment contract
Case Two: Gallop v Newport City Council (EAT – February 2016)
This case returned to the EAT after a previous hearing in 2012. It relates to a dismissal case. The employee also claimed disability discrimination. The employee won the case and received £60,000 compensation. The employee suffered from depression triggered by work related stress.
The case returned to the EAT to specifically consider when an organisation should rely on the content of an occupational health report when deciding whether an employee is a disabled person.
The occupational health adviser had indicated that the employee did not meet the legal definition of disabled, however the EAT concluded that the employer must look carefully at the nature of the impairment and satisfy themselves that the employee is not disabled and should not simply accept the occupational health advisers opinion.
Advice and guidance:
- It is good practice to seek guidance from an occupational health adviser however the employer must also challenge the medical advice where appropriate. The factual judgement lies with the employer.
- Specific questions should be provided to the occupational health adviser (individual to the case) to help the employer determine whether someone is disabled.
- Example questions:
- Does the impairment have a substantial adverse effect on the employee’s ability to carry out normal day to day activities?
- Is the impairment likely to reoccur?
- Is the impairment likely to be masked by the treatment and/or medication being received?
Share This Post
Posted In
cHRysos HR Solutions are a UK wide HR training and consultancy company offering CIPD accredited qualifications, Apprenticeships, Training and HR Services to SMEs. For more information about how cHRysos HR can help you or your teams successfully achieve further qualifications, contact us on info@chrysos.org.uk or call 03300 562443.