Annabel Mackay of Charles Russell solicitors outlines the steps employers can take to reduce the likelihood of unfair dismissal claims.
Most employers are familiar with the situation: no sooner has the disciplinary process been launched then the employee produces a sick note indicating that he or she is suffering from stress.
The employer is in a difficult position. Proceeding with the disciplinary process may exacerbate the employee’s condition. However, if the employer does nothing, the employee may also claim that the spectre of future disciplinary action has inhibited their recovery.
The employer’s response may render any subsequent dismissal procedurally unfair. Alternatively, it may prompt a resignation and a claim for constructive dismissal. If the employee’s condition amounts to a disability, the employer will also be exposed to discrimination claims if it disregards the employee’s illness when implementing its procedure.
It is unwise for an employer to make any decisions regarding the employee’s fitness to attend a disciplinary hearing in the absence of medical evidence. The doctor’s note merely indicates that the employee is unfit to work.
An employer could therefore postpone the hearing for a short period and request a medical report if the employee is still unwell at the new date. During this period, the employer could also make enquires of the employee concerning their fitness to attend, provided that such enquiries were handled sensitively.
The employee’s consent will be required to attend a medical examination. If the medical report is obtained from the employee’s own doctor, the Access to Medical Reports Act 1988 will apply. This gives the employee the right to see the report before it is supplied to the employer, to ask the doctor to amend the report and to withhold consent to it being supplied.
The letter of instruction might ask the doctor to address the following matters:
- the nature of the employee’s illness
- the prognosis
- whether a disciplinary hearing could be held and if so, when, and
- what steps the employer could take to accommodate the employee’s illness in connection with those procedures.
The response to the latter question will provide assistance in connection with the employer’s duty to make reasonable adjustments under the Disability Discrimination Act 1995 (see below).
By obtaining such information, the employer will be fixed with knowledge of the employee’s condition. The employer may therefore be exposed to claims in negligence if the risk of the employee suffering psychiatric injury (in consequence of the disciplinary procedures) is reasonably foreseeable and the employer fails to take reasonable steps to prevent this occurrence.
In the absence of consent to either the medical examination or disclosure of the report, the employer will have to exercise its own judgment based on the information available.
Disability Discrimination Act 1995 (DDA)
An employee will have the protection of the DDA if his or her stress-related condition amounts to a physical or (more likely) mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
Schedule 1, paragraph 1 of the DDA indicates that a mental impairment must result from or consist of a clinically well-recognised condition.
The recent case of Morgan v Staffordshire University has illustrated that vague references to “anxiety,” “depression” and “stress” will not amount to a mental impairment in the absence of medical evidence that these terms actually denote a clinically well-recognised condition.
Under section 6 of the DDA, an employer has a duty to make reasonable adjustments where any arrangements made on or on behalf of the employer place the disabled person at a substantial disadvantage, unless the failure to make such adjustments can be justified. Arrangements would encompass disciplinary procedures.
It will not be acceptable for the employer to do nothing unless it can show either that the adjustment was unreasonable (judged objectively) or that the failure to make the adjustment was justified (i.e. the reason for the failure is both material to the circumstances of the particular case and substantial). A failure to make reasonable adjustments may also constitute less favourable treatment.
The reasonableness of any adjustment is assessed with reference to the effectiveness and practicability of the step in question, the financial and other costs of the adjustment, the extent of the employer’s financial and other resources and the availability of other assistance.
Even if the employee’s illness does not amount to a disability, it would still be prudent for the employer to adopt some or all of the procedural steps outlined below to reduce the likelihood of unfair dismissal claims.
Although there is very little guidance on the issue, the following steps might be taken (subject to the findings of the medical report):
Postponing the hearing
The hearing date could be postponed so that the employee has more time to address the complaints and/or may make a recovery before the proceedings are commenced.
If after an initial postponement, the employee is still unfit to attend, the following steps might be taken:
Holding the hearing at the employee’s home or at a neutral venue with the employee present and taking the following steps:
- Ensuring that the employee is represented or assisted, and
- Permitting the employee to take rest breaks.
If the employee does not wish to attend the hearing:
Holding the hearing in the employee’s absence and taking the following steps:
- Providing the employee with written questions and inviting written replies, and
- Allowing the employee’s representative to read out written representations and/or to speak on the employee’s behalf at the hearing.
As with any disciplinary hearing, the employee should be provided in advance with full details of the complaints against him or her and given a chance to state his or her case.
An employer cannot ignore the fact that an employee is signed off with stress without exposing itself to claims of disability discrimination, negligence and/or unfair dismissal. A sympathetic approach is likely to prove less costly in the long-term and the above steps could assist in balancing the need to address allegations before recollections fade and the employer’s duty of care towards the employee.