ABG Employment Newsletter – January 2014

Use of medical reports

The Equality Act 2010 imposes on employers a duty to make reasonable adjustments for employees who are disabled, as defined in the Act.  An employer will not be required to make reasonable adjustments unless it is aware or ought reasonably to be aware that the employee is disabled and that he is likely to be placed at a disadvantage because of his disability. 

In a recent case, the Court of Appeal held that an employer should have taken further steps to establish whether an employee was disabled and not simply replied on a statement by an occupational health adviser that he was not disabled.  This case illustrates that employers cannot avoid reasonable adjustment obligations by simply relying on the opinion of a third party that an employee is not disabled, it must consider all of the facts available to it and make a balanced decision.  A report from occupational health advisors may be useful in deciding if an employee is disabled but it should not be the only factor which is considered. 

 In another recent case the Inner House of the Court of Session considered how far an employer has to go to investigate an employee’s ability to return to work after a long period of illness.

In this case the employer had received a number of formulaic reports from occupational health in relation to an employee who had been absent from work due to long term illness.  At a meeting, the employee stated that he did not feel he was ready to return to work despite the fact that the occupational health report had indicated that he was.  The employer decided to dismiss the employee on the grounds of ill health.  The employee brought a claim of unfair dismissal.

 On appeal, the Inner House when considered whether the employer had conducted a thorough enough investigation noted that an employer should not have to “turn themselves into a form of medical appeal tribunal”.  The employer had considered the occupational health report but had also taken into account the opinions expressed by the employee and his GP’s.  The Inner Court did not consider that further investigation/medical reports were necessary.

These two cases highlight that, when dealing with ill health of an employee, a balancing exercise needs to be carried out by the employer.  On the one hand the employer cannot blindly rely on a medical report without considering all of the relevant facts.  On the other hand, an employer should not be required to carry out unreasonable amounts of investigation and is entitled to weigh the employee’s own assessment of his condition against the medical report.  The Inner Court did however observe that “the relevance of what an employee says about his health may vary from case to case.  Particularly in a case where the employee’s health problem is of a psychiatric or psychological nature, what he says may not be wholly reliable”.

Both of these cases also highlight the need for care to be taken when compiling medical reports to ensure that the questions are specific to the circumstances of each individual employee and must not be purely formulaic.

Agency workers assigned permanently are not covered by Agency Workers Regulations

The Agency Workers Regulations 2010 gives certain rights to agency workers who are assigned to do temporary work for hirers through temporary work agencies.

In a recent case the Employment Appeals Tribunal upheld the Employment Tribunal’s decision that agency workers placed with a hirer for an ‘indefinite period’ are not covered by the Agency Workers Regulations.  The EAT looked at the meaning of ‘temporary’ in the Act and decided that for a contract to be ‘temporary’ it must be ‘not permanent’, i.e. not open ended.

Social media controls by employers

A case reported in the news over Christmas highlights the need for employers to retain control of social media accounts to ensure that former employees cannot post comments on behalf of the employer that will cause damage to its reputation.

In this case, a pub chef who had been dismissed following a disagreement about working over Christmas logged on to his former employer’s Twitter account and made various disparaging comments about the pub and his treatment by them including a comment which stated that their meat was bought from a supermarket.  The comments remained online for more than 19 hours and we retweeted numerous times.

 It is always advisable to ensure that the passwords for all social media accounts (Twitter, Facebook, LinkedIn etc.) are recorded centrally and changed periodically in order to ensure that former employees cannot post comments on behalf of the employer after they leave.  Employers should have an up to date Social Media Policy in place and care should be taken to ensure that passwords are surrendered when an employee leaves.  It is also good practice to ensure social media accounts are monitored.  If you need advice or assistance with drafting a Social Media Policy please do not hesitate to contact one of the Employment Group, details below. 

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