Employment Law Update- June 2022

Monday 27th June 2022

Fit notes for absence- what are the changes? 

Currently, the rate of sickness absence is the highest it has been in over a decade, as reported by the Office for National Statistics. Employers should therefore be aware that there are a number of important changes in relation to fit notes that an employee should produce. These changes are introduced with the intention of making the process for issuing and certifying fit notes more streamlined.

When an employee is absent from work for seven consecutive days, they must be able to provide their employer with a fit note for the purposes of statutory sick pay. This provides the employer with evidence from a GP or hospital doctor of the employee’s absence due to sickness. The fit note will specify either that the employee is ‘not fit for work’, meaning they may not work for a specified period of time, or that the ‘may be fit for work’, meaning that the employee’s condition may allow them to still return to work but perhaps with the option of suggested amendments. No fit note is issued when a doctor believes the employee will be ‘fit for work’.

What are the changes?

  • From 06 April 2022 – fit notes are no longer required to be signed in ink by the person issuing them, digital signatures are accepted in the alternative.
  • From 01 July 2022 – the following healthcare professionals can issue and certify fit notes, in addition to doctors:- nurses, occupational therapists, pharmacists and physiotherapists.

It is hoped that such changes will help to relieve some of the backlogs in relation to GP appointments following the pressure from the Covid-19 pandemic, allowing people to get the support they require.

Comment

Although a fit note is merely a doctor’s advice and not legally binding, employers should take care to comply with them.

Some sickness absences may result from disabilities. Employers are reminded that where an employee is classed as disabled and where a provision, criterion or practice or physical feature puts that person at a substantial disadvantage in comparison to a non-disabled person they will have a legal obligation to make any ‘reasonable adjustments’ to avoid the disadvantage – a failure to comply with such obligation can result in discrimination claims.

Employers should take care to review their sickness absence policies and reporting procedures in light of these new changes, ensuring these are communicated to employees so they are aware of their obligations when requiring time off work due to sickness. If you would like any assistance with this, please do get in touch with one of the team.

Beware of the risk of age discrimination claims in light of hybrid working 

The introduction of hybrid working and the use of remote technology has caused many roles to be more accessible and seen a difference in benefits to different age groups.

Although it may be argued to be one of the least pleaded protected characteristics in a discrimination claim, it is worth reminding ourselves that age is one of the nine protected characteristics that are protected under the Equality Act 2010. This Act protects employees from direct discrimination, indirect discrimination, harassment and victimisation as a result of their age.

There are a range of benefits that hybrid working provides to older employees such as the opportunity to work from home if health problems are an issue and being able to avoid the daily commute, however,  it is important to also balance these interests with the interests of younger employees. Younger employees, such as trainees and apprentices, who typically have less experience and require higher supervision will expect effective planning, opportunities for career progression and a supportive working environment.

It is important that employers strike the right balance, as claims of discrimination can be brought by the younger generation just as easily as the older generation. Insinuating a perception that the younger generation is lazy or entitled, for example, is not only discriminatory but is also likely to damage future recruitment prospects for an employer as talented young employees could be prevented from progressing. Similarly, insinuating an assumption that the older generation is incapable of adapting and ‘keeping up to date’ with new technology may lead to employers losing the benefit of such employees’ experience and knowledge.

Employers should therefore consider putting in place a number of steps:

  • Provide regular equality and diversity training to employees, particular managers
  • Emphasise the risks in relation to ‘banter’ in the workplace
  • Avoid making any assumptions in relation to an employee’s age
  • Offer to mentor senior employees by more junior employees to help break the stigma

Comment

Employers should note that, unlike other protected characteristics, they are able to raise the potential defence of objective justification in claims of direct or indirect age discrimination if they are able to show that their actions are a proportionate means of achieving a legitimate aim. Therefore, when putting in place hybrid working policies or such related obligations on employees, employers must be careful to ensure they have legitimate justifications for doing so.

If you would like us to review and update your policies in respect of hybrid working to ensure they are compliant with the necessary protections of the Equality Act 2010, or if you would like any further help with the implementation of any of the above-suggested steps then please do not hesitate to get in touch.

Employers face a 25% uplift of damages for failure to follow ACAS Code of Practice

The Employment Appeal Tribunal upheld the decision to award an uplift of damages by 25% in Coulson v Rentplus UK Limited following a dismissal disguised as redundancy which saw the employer fail to follow the ACAS Code of Practice.

Facts

The Claimant was employed as a Senior Executive and had worked in the industry for 20 years. To cut costs, the Respondent demanded the Claimant to either take a considerable pay cut or move to another office 250 miles away. The Claimant declined both options due to concerns that she would not be able to secure another position due to being 59 years of age. She was subsequently dismissed by the Respondent on the grounds of redundancy stating there were no other positions available at the same level for her. The Claimant brought claims to the Employment Tribunal for unfair dismissal and sex discrimination.

Decision

The Employment Tribunal stated that redundancy was not the reason for the Claimant’s dismissal and that due to her age, the Claimant was less likely to find an alternative role. Consequently, the Employment Tribunal ruled in favour of the Claimant in both claims of unfair dismissal and sex discrimination. The Employment Appeal Tribunal upheld this decision and noted that the redundancy and grievance processes followed were unfair.

Comment

This case is a timely reminder for employers to follow and keep the ACAS Code of Practice in mind as the Employment Tribunal will take this into account when considering cases and whether fair procedures have been followed. Where there is an unreasonable failure to comply with the Code, Tribunals can adjust awards of compensation by up to 25% as they did in this case.

For any advice on how to ensure your procedures are fair and compliant with the ACAS Code of Practice, please contact a member of the employment team.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.