ABG Employment Newsletter – April 2013

Sickness absence and fit notes

The DWP has issued fresh guidance for employers and doctors about the issue of fit notes. The guidance reaffirms that fit notes should look at what a person can do, rather than what they cannot do. The fit note should be about the individual’s general fitness for work rather than being tied to their most recent job. This should allow flexibility for employers to discuss with the individual what can be done to enable them to return to work as soon as possible.

The guidance also states that doctors cannot issue fit notes for the first 7 calendar days of sickness absence, during which an employee can self-certify. It suggests that if an employer requires medical evidence for the first 7 days’ absence, it is the employer’s own responsibility to arrange and pay for this.

Using personal devices for work

A recent survey has revealed that nearly half of all UK adults now use their personal smartphone, tablet or laptop for work purposes. However, less than 3 in 10 receive guidance from their employer on how their devices should be used for work purposes, including the processing, accessing and storage of personal data on the devices.

Against this background the Information Commissioner’s Office has issued guidance explaining the risks and issues which organisations should consider when staff are allowed to use their personal devices to process work related personal information. It points out that employers should have adequate controls in place to make sure that the information is kept secure. It recommends that organisations should have a “Bring Your Own Device” policy and that the policy should, in particular, comply with the Data Protection Act. The policy should make it clear to staff what types of personal data may be processed on personal devices and which personal data may not. Steps should be taken to ensure the confidentiality of the data, including the use of a strong password, data encryption and automatic locking of the device if an incorrect password is input too many times. It further recommends that there should be remote “locate and wipe” facilities in place so that data confidentiality can be maintained in the event of the loss or theft of the device.

Redundancy selection and competency tests

The EAT has ruled that when it selected staff for redundancy it was unreasonable for an employer to use a series of competency tests which it normally used in its recruitment process. To try to avoid subjectivity and bias the employer had developed an elaborate redundancy selection procedure, including assessment centre competency tests which were operated by the HR department without any input from the employees’ line managers and without regard to past appraisals. The process led to some surprising results, but the employer nevertheless went ahead and implemented redundancy for the employee selected through this process.

Although the selection process involved 3 criteria, a competency assessment, disciplinary records and sickness absence, these were weighted so that the competency assessment had more importance than the other 2 criteria. The competency assessment involved a written test, an individual interview and a group exercise and was normally used when recruiting staff. None of the HR team who carried out the assessments had any experience of working with those at risk of redundancy and did not seek any assessments from the managers who worked with them nor did they look at appraisal records. The competency assessment was decisive in most cases and led to surprising results, with the employers admitting that some good workers were selected for redundancy.

In these circumstances both the Employment Tribunal and the EAT ruled that the employer had acted unreasonably. Its blind faith in the process it had put together led to it losing touch with common sense and fairness. The EAT noted that it was highly unusual for a redundancy selection exercise to be based almost entirely on recruitment style assessments without any reference to past appraisals or the views of line managers.

The decision is a warning that a redundancy selection exercise cannot be operated in a vacuum and that employers should not ignore past records of performance, such as appraisals, when taking into account performance as one of the selection criteria.

Dismissals and the ACAS Code

As a matter of good practice an employer should follow the ACAS Code of Practice when dealing with a disciplinary process against an employee. Failure to do so can result in a finding of unfair dismissal and an increase in any compensation awarded of up to 25%.

Having said that, a recent ruling by the EAT makes it clear that non-compliance with the Code will not in itself be fatal if, looking at the procedure overall, the employer has acted fairly and in particular made it clear to the employee that he is at risk of dismissal.

In this case the employee had been issued with a stage 3 written warning under the employer’s disciplinary procedure. The warning letter itself did not inform the employee that he could be dismissed in the event of further misconduct, but the disciplinary policy clearly stated that further breaches during the currency of the warning could result in dismissal.

After a further incident of alleged misconduct, the employee was called to another disciplinary hearing, following which he was dismissed for gross misconduct. The letter inviting him to the disciplinary hearing had not referred to the earlier warning nor did it put him on notice that the hearing might result in his dismissal.

Despite these omissions, the Tribunal and the EAT ruled that the dismissal was fair. They were satisfied that as a matter of common sense it had been made clear to the employee that further misconduct could result in his dismissal. He had known of the significance of the final warning and it had been clear in the disciplinary policy that dismissal might result from further misconduct. Looking at the procedure in the round the employee had not been in the dark as to the possibility of his being dismissed.

This ruling is welcome reassurance that a procedural flaw will not automatically result in a dismissal being found to be unfair. However, it should be noted that in this case the employers were saved by the clear wording in their disciplinary procedure and it should be borne in mind that it is always safer to ensure that warning letters and disciplinary invite letters spell out the potential consequences to the employee in very clear terms.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg 
[email protected] 
+44 (0)115 934 3310

Kathryn Meir
[email protected]
+44 (0)115 934 3308