This week, Esther Smith, partner at Thomas Eggar, and Anna Youngs, solicitor at Mills & Reeve, discuss the risks involved in setting up a different sick policy for an individual member of staff.
The question:
We have a member of staff who is currently a sessional worker (only employed for odd hours). In the past he has had significant mental health issues. However we want to support him back into work by offering him a permanent job. The only trouble is, our sick policy is quite generous (for a VERY small voluntary sector organisation) and if he were to go off sick for a long period, we would be financially damaged. He is willing to forego the usual sick policy entitlements, but we are not sure how we would stand legally if we set up a different policy for him?
Legal advice:
Esther Smith, partner, Thomas Eggar
Whilst the employee may appear happy with the proposal to set up a different policy for him, the big risk in doing so here is the possibility of a claim under the Disability Discrimination Act 1995. Whilst you do not give specific details as to his health, it appears that he is likely to be disabled within the meaning of that legislation due to his ongoing mental health problems.
As a disabled person, he is likely to have more time off work than someone who is not disabled. To agree a special reduced policy of sick pay for him would clearly therefore put him at a disadvantage compared to someone who is not disabled, and would amount to less favourable treatment.
Whilst you have the ability as an employer to justify any such less favourable treatment on the grounds of disability I think you would struggle to do so here, as the only real justification is financial. It is very difficult to justify less favourable treatment on the grounds of cost alone.
Even if he agrees to the change, the fact that he has a mental health condition may lead a tribunal to find that he did not fully appreciate the implications of what he was agreeing to, or that he was somehow manipulated into agreeing it. I am not suggesting that this is the case, but you could see how a tribunal could make this sympathetic assumption.
Therefore my view is that changing his contractual terms to reflect a less favourable scheme would be risky so far as a disability discrimination claim is concerned. My advice would be to put him on the standard scheme and perhaps be more robust in addressing his absence levels and consider capability dismissal if he goes off sick long term again, subject, as always, to fair procedures.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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Anna Youngs, solicitor, Mills and Reeve
If this worker has had significant mental health issues, it is likely that he falls within the ambit of the Disability Discrimination Act and therefore is protected by the provisions of the Act, which also protects people who have had disabilities in the past.
Assuming therefore that the worker is disabled, you are effectively saying that because he has a disability you will not extend the sickness benefits to him. This would be discrimination. Moreover, it sounds like you have already discussed this with the worker, so he knows that you are prepared to offer him a permanent job. If you now do not offer him the permanent job because you do not want to extend the sickness benefits to him because he has a disability, this would also amount to discrimination.
The non-discriminatory way forward would be to offer him the job with all the benefits that a non-disabled person would have. If the worker has to take long-term sickness, you would then look at the prognosis and whether you can sustain his employment – any decision should be taken with great care and I strongly recommend that legal advice is sought at that time.
Alternatively, you could take a gamble and hope that he never makes a complaint about this. However, if he does make a complaint to a tribunal and he is disabled, my view is that he would win.
If the worker is not disabled, you are in a better position to agree to vary the sickness benefits. However, you still need to make a decision as to whether your organisation wants to be seen to be taking rights away from people who are or have been unwell.
Anna can be contacted at: anna.youngs@mills-reeve.com
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