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Ask the expert: Disability and failure to attend work


Ask the expertAn employee, who has mental health issues, has been suspended for not attending work for one day. Esther Smith and Martin Brewer advise on whether this was the right decision to make, and the employer’s duty of care in this instance.

The question:

An employee has been suspended from employment pending an investigation. The employee was suspended for insubordination and for failure to attend work for one day.

The background is that the employee has a physical disability covered by the DDA and an ongoing mental health problem, also covered. An incident arose where a manager reprimanded the employee in front of other staff. The employee then went into the office and in private swore at the manager and told them not to reprimand them like that in front of other staff members.

The following day the employee didn’t go into work. They tried to contact the office but could not get through. I should point out that no one from the company tried to contact the employee at all either.

The next day the employee received a letter telling them that they where suspended from employment pending an ongoing investigation into bullying, insubordination and failing to attend employment.

I am concerned over the failure to attend. Especially in regards to the employee’s health problems and no contact being made by the employer. The only contact was to send a suspension letter which, considering the employee’s mental health problems, has only increased their ill health.

Should the employer have a duty of care to contact an employee with known health problems? The issue of insubordination is also a concern as it is unclear how this falls within employment law?

Legal advice:

Martin Brewer, partner, Mills & Reeve

It is always sensible for an employer to not over-react. From the question, it seems to me as though the employee is being punished for standing up for himself against a manager whose behaviour has been less that professional. One should never reprimand an employee in front of other staff. Constructive dismissal cases have been founded on less. Insubordination is an offence of misconduct and, in really serious cases, can be gross misconduct but the cases are very fact-sensitive.

Furthermore, suspension seems very heavy-handed for what looks like a fairly minor workplace spat. Employers must remember that in order to suspend an employee you not only have to have the contractual right, but also a good reason. Since the employee didn’t come into work, it must follow that there was no need to suspend unless and until he tried to return, the point of suspension being to remove the employee from the workplace.

There is no obligation on an employer to make contact with staff on short-term sick leave. If a person is on long-term sick leave regular, although not obtrusive, contact is recommended. This may include ensuring the employee receives the staff newsletter, email updates or other such communications and of course there will be contact over medicals and getting the employee back to work.

I tend to agree that where the employee has a disability which has related health problems (and by the way we do need to be careful not to equate ‘disability’ with ‘ill’-not all disabled people have health issues) extra care must be taken to ensure that the employee doesn’t suffer any extra disadvantage as a result of that disability.

Martin Brewer can be contacted at . For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

I share your concern regarding the lack of contact by the company. Given the events of the previous day and the known health issues suffered by this employee, one would expect a reasonable, caring employer to make contact or at least try to.

However, the failure to make contact on the employer’s part does not excuse the employee’s failure to attend and ultimately, even if the employer had made contact with the employee, I anticipate that a letter of suspension/investigation would still have been sent.

I do question whether it is really appropriate to suspend in this situation, given that the right to suspend should only be used in circumstances that justify the action, rather than being used as a matter of course. Suspension for insubordination and failure to attend work does seem slightly over the top, particularly in light of the employee’s health issues.

Insubordination can be a valid disciplinary issue, subject to the facts of each situation, but is often very difficult to deal with as it so often comes down to one person’s word against another and their personal interpretation of words and/or actions. Therefore, whilst it can be the subject of a disciplinary hearing, you may have difficulty in establishing grounds on which to impose disciplinary action.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.


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