Month: September 2015

Faced with an employee who, because of their health, is unable to perform their role or give regular effective service in the future suggest that they should be medically retired rather than dismissed. This is entirely reasonable and understandable – medical retirement will often give an employee a better financial payoff than they would receive if they were dismissed on inefficiency grounds (where often the employee would just receive payment in lieu of notice). In addition, simply leaving by agreement rather than having to face the ignominy of being dismissed is itself of some benefit and consolation to an employee.

One issue that members often raise when they know that they face a good prospect that they will be dismissed on inefficiency grounds is whether, as a reasonable adjustment, the employer should consider medical retirement as a reasonable adjustment (assuming, of course, there is in fact a medical retirement provision in the pension scheme). The simple answer is this will not be a reasonable adjustment as can be seen in the EAT case of Tameside Hospital NHS Foundation Trust v Mylott. Mr Mylott was absent on long term sick following an experience of alleged bullying by his managers. The employer’s policy required consideration of ill health retirement before dismissing an employee and the employment tribunal found that Mr Mylott had been unfairly dismissed because of this failure but also that not facilitating an ill health retirement application was also a failure to make adjustments.

The employer appealed and, in paragraph 53 of the judgement, the reasons why it is not a reasonable adjustment are set out very clearly:

the Trust’s case is that there was no reason to suppose that facilitating an application by the Claimant for ill-health retirement would have helped to ensure his return to work.  That is self-evidently true: ill-health retirement involves leaving the job, not doing it … We can identify in such a case no “provision, criterion or practice” which has an adverse “effect” on the employee which offering him ill-health retirement would prevent or mitigate.  The whole concept of an adjustment seems to us to involve a step or steps which make it possible for the employee to remain in employment and does not extend to, in effect, compensation for being unable to do so.

I think that decision is plainly correct. It is noteworthy though that the same EAT did still reject the employer’s appeal against the unfair dismissal finding.

So, does that mean an employer’s failure to offer medical retirement cannot be discrimination? I do not think it does and it is not hard to envisage such a scenario since both section 15 and 19 of the Equality Act 2010, unlike section 20, do not need to be concerned with aiding an employee back to work. For example, if an employer regularly omits to refer cases where ill health retirement is a possibility, perhaps as a cost saving measure, this may be a practice that especially places disabled employees at a particular disadvantage (if you’re at risk of being dismissed for a permanent inability to do your job because of your health it will be a relatively rare case that disability is not an issue) so that this would amount to indirect discrimination. Similarly, if a disabled person is denied the opportunity to be considered for ill health retirement this may well amount to unfavourable treatment arising from disability. These issues have not though, to my knowledge, been considered by any appellate tribunal.

Even though seeking to help a disabled person retire from service on favourable terms is not a reasonable adjustment in employment law and the possibility that it amounts to other forms of discrimination is uncertain that does not mean it is is unenforceable.

As was seen in Tameside an employer’s failure to follow a procedure that required consideration of medical retirement can make a dismissal unfair; the leading case in this regard was First West Yorkshire Limited t/a First Leeds v Haigh.  The EAT found, at paragraph 48, that in a dismissal context “fairness requires the reasonable employer to give proper consideration to an ill health retirement scheme before he dismisses for long term sickness.” In short, if there is an ill health retirement scheme in an employee’s pension scheme the employer should give consideration to this before dismissing an employee on inefficiency grounds.

In practice however, if an employee knows that dismissal is on the horizon it may well be in their interests to take the initiative and formally communicate (in writing) to the employer that they wish to be considered for medical retirement, or indeed make an application themselves if the scheme allows this.

Of course, aside from an employment law area employees may well find they also have grounds to make a complaint of maladministration to the Pensions Ombudsman if an employee is deprived of the opportunity to apply to be medically retired, or a decision is taken not to proceed without adequate medical information.

Cases Referenced

Tameside Hospital NHS Foundation Trust v Mylott [2010] UKEAT 0399_10_1304

First West Yorkshire Ltd (t/a First Leeds) v. Haigh [2008] IRLR 182

There is no necessary reason why the relationship between union reps and HR advisers (a subset of the wider HR profession) should be antagonistic. If the purpose of a HR adviser is to advise on HR policies and employment law then, while clearly not singing off the same hymn sheet, there is a significant degree of overlap with the work of the union rep.

The reality, in my experience, is somewhat different. I have seen many cases where HR advisers have directly contributed to the decision on an individual’s culpability, even going so far as to record in the minutes that the decision on the case outcome will be one made by the HR adviser. Where, as the case in civil service departments, HR departments are tasked with reducing civil service headcount that fact places the integrity of disciplinary processes in doubt as such processes provide the opportunity to lose some staff from the books who would otherwise not be dismissed.

The recent case of Ramphal v Department For Transport is a useful reminder that HR advisers must not stray into the realm of assessing an employee’s culpability in misconduct proceedings and, if they were to do so, this may make a dismissal unfair. This was a case in which an inexperienced manager in the Department of Transport was asked to investigate a potential case of gross misconduct and, if necessary, hear the the formal disciplinary hearing (that joint role, aside from anything else, strikes me as a potential ground making a dismissal unfair but, strangely, this was not an issue in the case).  The manager made preliminary findings found in a draft report that concluded that the claimant was likely to be guilty of misconduct but it did not amount to gross misconduct, a draft of this report was commented on by HR and the end result in the final report was drastically different from the managers preliminary findings and made a finding of gross misconduct – the claimant was thereafter dismissed for gross misconduct. This represented undue and illegitimate lobbying by HR advisors that was likely to make a dismissal unfair. In two passages the EAT gave what are helpful judgements that can be relied upon by reps where they encounter an ‘overkeen’ HR adviser.

At paragraph 55:

In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.

And, at paragraph 56:

I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.

This is I think a helpful reminder that the HR adviser’s job is to advise a decision maker on law, and employer policies and procedures, and that where they stray into decision making mould (as, unfortunately, some like to do) they may be acting inappropriately.

Cases Referenced:

Ramphal v Department For Transport [2015] UKEAT 0352_14_0409

Where there is a dispute between an employee and a worker it has always been a possibility for the employer and worker to have a ‘without prejudice’ discussion with the aim of seeking to resolve the dispute. Such a discussion, if genuinely aimed at resolving the dispute cannot be used by any party in any subsequent legal hearings; this is called the without prejudice rule. However, as the case of BNP Paribas v. Mezzotero showed where an employer used this rule to tell an employee that they should either take a financial settlement and resign or otherwise be dismissed this could well amount to a fundamental breach of the employee’s trust and confidence in the employer enabling an employee to claim constructive dismissal and rely on the allegedly ‘without prejudice’ discussion. At any such meeting the employee is unlikely to have a right to accompaniment by a trade union representative unless that meeting was itself a formal grievance hearing. This is somewhat perverse particularly as it is conceivable that that trade union representative is in fact representing the employee in formal legal action that may have already been commenced.  This situation is unhelpful but is not a commonly used tactic by employers, at least in unionised settings.

The situation was changed somewhat by one of the Lib Dem-Conservative employment law ‘reforms’, that of the Protected Conversation. This idea of the protected conversation is found in section 111A of the Employment Rights Act 1996 (introduced by s. 14 of the Enterprise and Regulatory Reform Act 2013). Although similar to the without prejudice rule the protected conversation is different in that there is no requirement that there is an existing dispute or disciplinary matter for the protected conversation to take place. The ‘reform’ the last government instituted was that any of the discussions in a protected conversation could not be relied upon by an employee in any future employment tribunal claim for ordinary unfair dismissal. This is a recipe for employer abuse, which was highlighted in consultation responses, such as those from Thompsons.

In it’s consultation response Thompsons Solicitors spelled out clearly why the right to accompaniment should be applied to protected conversations:

In capability or conduct scenarios the employee may well see the writing on the wall and expect a difficult conversation. However, because the scope of the proposals is so wide there may not be such a warning and a protected conversation will be out the blue. Genuinely productive discussions will be impossible where the employee feels ambushed, unprepared or isolated. It will be important for the success of these measures to prevent a 5 o’clock call to the office, or a conversation in a corridor.

We therefore believe that the discussion should be held by written invitation and on notice. Up to 48 hours notice should be adequate and will minimise the period of anxiety for all concerned. Because of the very serious nature of the discussion, the risks of abuse, the difference in relative bargaining positions and the fact that emotions may run high, we believe that the employee should have the right to be accompanied at that meeting.

That companion could help support the employee, and act as honest witness. It is common for HR to accompany a manager in these circumstances, and the same opportunity for support should be extended to the employee. We would therefore urge that s.10 Employment Relations Act 1999 be extended to cover the protected conversations process.

It will not come as too much of a surprise that s.10 of the Employment Relations Act 1999 remains unchanged despite the new category of meetings and potential for abuse.

It is however true that the accompanying ACAS Code of Practice on Settlement Agreements is unusually strong (compared to its lame offering in CoP 1) and even though not legally enforceable that trade union accompaniment should be allowed and encouraged:

13. The parties may find it helpful to discuss proposals face-to-face and any such meeting should be at an agreed time and place. Whilst not a legal requirement, employers should allow employees to be accompanied at the meeting by a work colleague, trade union official or trade union representative. Allowing the individual to be accompanied is good practice and may help to progress settlement discussions.

This is good advice but, as set out, it is not the law. An employer does not need to allow it (but the recent High Court case of Stevens which I will post on in due course may cast some doubt on this). Again, given a rep is among the category of persons whom must be involved in any actual settlement agreement this denial seems a nonsensical one.

But what of those cases where an employer refuses to allow trade union accompaniment? I think in such circumstances unless the employee actually wants to leave the employer then the member is best advised to simply decline the consideration unless a rep can be actively involved. If the employer refuses to accommodate this then that is itself a good sign that the offer is not being made in good faith and the employee will be best advised to ensure (by declining to take part in any protected conversation) that any future employer conduct is unprotected and can be used in any subsequent employment tribunal unfair dismissal claim.

Cases Referenced:

BNP Paribas v. Mezzotero [2004] IRLR 508

Stevens v University of Birmingham [2015] EWHC 2300 (QB)

It has been quite quiet on the site for a while now, the reason for this is that I have migrated my blog to a new home at www.employmentwrites.com. So if you follow this blog you will need to update your feeds etc. In due course I will most likely delete this blog.

You can keep in touch by:

• Visiting the new site
• Sign up for email updates whenever there is a new post
• Liking the Facebook page
• Following me on Twitter
• Subscribe to the website feed

Thanks for reading!