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Posts Tagged ‘sickness absence’

The Employment Appeal Tribunal has held that an obligation to make reasonable adjustments does not necessarily end when an employee goes on sick leave. The point made a difference to whether the employee had presented his claim to the Tribunal in time.

The employee in this case brought a claim for disability discrimination following a period of sick leave. He argued that his employer failed to make reasonable adjustments to take into account his disability and that, if  the employer had made reasonable adjustments, he would not have gone on sick leave in the first place, or  indeed later adjustments would have enabled him to return to work.

At first instance the judge said that any duty to make reasonable adjustments ended when he went off sick because he was “simply unable to be at work”.

The employee appealed and won.

The Employment Appeal Tribunal said that, in some cases, adjustments while on sick leave would not make any difference to the employee.  This tribunal, it said, should have decided whether it was the very failure to make the adjustments which kept the employee away from work.  

Case reference: Olenloa v North West London Hospitals NHS Trust

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The Advocate General of the Court of Justice of the European Union has given her opinion on the question as to whether annual leave can accrue indefinitely where an employee is on long-term sick leave.

The question was referred to the Court of Justice of the European Union by the Higher Labour Court in Germany, who has been asked to decide a claim by a worker for payment in lieu of leave following his dismissal after long-term sick leave.

An employee who is unable to take annual leave due to long-term sickness absence, accumulates the right to take that leave (or pay in lieu if his employment ends) on his return to work.

The Advocate General is, however, of the opinion that it is not a breach of EU law to provide that a right to take accrued leave expires after a minimum period of 18 months following the return to work.

The Advocate General’s opinion is not legally binding, although it is likely to be followed.

The period of 18 months represents a guideline which Member States are expected to follow for the purposes of implementation in their domestic law. The Advocate General has, however, indicated that a possible carry-over period of only 6 months would, in her opinion, be insufficient.

It is anticipated that the UK Working Time Regulations will be amended in due course to take into account the Advocate General’s opinion.

Case reference: KHS AG v Winfried Schulte

 

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A new application called Skiver has been released by a Company in Gateshead for Android users and aims to help users pull a sickie and gives skiving employees the ability to select how many days off they are looking for and then providing a selection of plausible illnesses together with a list of symptoms to ensure that they the right info to fool their boss.

The app even provides a style email which can be sent directly to the user’s boss notifying them of the absence. Employers should conduct back to work interviews which are proven to reduce absence, probably because employees are not so good at telling porkies in person!

This article is based on a report by the Chartered Management Institute discussed by Morton Fraser in Lexology today.

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Some companies pay full pay during sickness absences and it is not unusual for them to include a clause that enables them to refuse to pay if the employee’s accident results from them engaging in dangerous sports outside of work or they may seek to claw back payments from 3rd party insurance settlements. It does seem harsh to dismiss an employee who has, perhaps through no fault of their own, been involved in an accident especially if the financial liability from the company’s perspective is only SSP; however I understand that it may also cause you difficulties in terms of covering her work during her absence.

In which case, if the employee is not suffering from a disability and if there is nothing in her contract to prevent you dismissing her now, and if there are no other factors at play which may amount to discrimination or unfair dismissal then you could let her go on grounds that she was unsuitable for the post because as you say, she is a new starter and would not ordinarily have unfair dismissal rights.  Please note that I have included a lot of ‘ifs’ in that answer so it would be advisable to get an employment lawyer to look at the particular facts of the case before you end her employment.

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Scared workers taking fewer sick days due to recession – Telegraph.

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