Monday, 18 April 2016 10:05

Pulling a sickie? (case law March 2016)

Pulling a sickie? (case law March 2016)

 

We all know it goes on and sometimes it’s all too obvious.  But what can employers do about it? 

Employees have the legal right to be absent from work due to sickness and to receive Statutory Sick Pay.  But if the sickness isn’t genuine, do these rights still apply?  In a recent case between Metroline West and Ajaj 2015, a dismissal for non-genuine absence was tested through the Employment Tribunal and the Employment Appeal Tribunal (EAT). 

  

The case:

Mr Ajaj was employed by Metroline West as a bus driver.  He claimed to have had an accident at work in February 2014 where he slipped on a wet floor.  He was subsequently signed off by his GP due to the injury caused by the fall. 

 

Following a prolonged period of absence, his employers became suspicious about the alleged injuries and arrange for covert surveillance of Mr Ajaj while he attended an absence management meeting at work.  This was followed by further covert surveillance in April 2014 which showed him carrying out tasks which he claimed were beyond his physical capabilities. 

 

Mr Ajaj was disciplined and dismissed for his conduct in misrepresenting his ability to work. 

 

 

The Employment Tribunal:

Mr Ajaj made a claim of unfair dismissal to the Employment Tribunal and surprisingly won his case.

 

 

The Employment Appeal Tribunal (EAT):

Metroline West made an appeal to the EAT.  The EAT concluded that Mr Ajaj’s actions had amounted to dishonesty which can be taken as a fundamental breach of contract due to it being the heart of the employer/employee relationship and therefore deemed the dismissal to be fair. 

 

 

Advice:

While you may suspect employees of pulling a sickie from time to time, you must be able to demonstrate that beyond reasonable doubt, the employee is making a dishonest representation of their condition and inability to work.  While covert surveillance may seem a bit extreme, you can use it in some circumstances.  Social media sites are also a good way to check up on absent employees but it’s important to have a social media policy in place too.  Medical advice may be obtained from the employees GP, with their written consent, or from an occupational health advisor.  As with any dismissal, it is vital to follow a full and fair investigation and dismissal process.  Use your company disciplinary policy and make sure it complies with current statutory guidance. 

 

 

How we can help:

Our dedicated team of HR professionals and employment law experts can quickly review your current policies and update them where required to give you sound peace of mind.  If you don’t have disciplinary and social media policies, we can easily create them to suit the needs of your business.  We can also assist with investigations, disciplinary hearings and tribunal representations.  Contact us on 01382 250333 or This email address is being protected from spambots. You need JavaScript enabled to view it. to see how we can help to protect you from future tribunal claims. 

 

Published in HR Blog...
Monday, 14 March 2016 15:57

You can't do that!

You can't do that!

 

If only I had a pound for every time someone has said "you can't do that" to me, I would be a very rich woman today!  

 

It's common that when staff think they can get away with things, they may be a little bit upset when you start to lay down the law.  This is even more common when you have policies and processes in place that just aren't being following by some department managers.  

 

So how can you change that?  Easily!  

 

First of all, send the offending managers on refresher training to remind them of HR policies, why the exist and how to apply them.  Then, simply remind all staff that there are policies in place that need to be applied consistently throughout the company.  You can re-issue key policies or post a summary of them on the notice board with reference on where to access the full policy.  Give it a couple of weeks to make sure that everyone has had enough time to review the policies ask any questions.  Then start following the processes.  

 

For example, if you want to crack down on multiple short-term absences, follow the process above then start having return to work meetings and stage 1 absence meetings with staff as required.  When you tell them that you will be making a record of the meeting that will be kept on file and any further absences may lead to disciplinary action, you may well hear them say "you can't do that".  This is when you politely remind them that you can in fact to that and you will if need be.  Refer them to the policy for review and offer to answer any queries regarding the policy that they may have.  

 

Remember, you have the right to manage your staff and it is important that all department managers follow the same processes and apply them consistently.  

 

Published in HR Blog...
Tuesday, 08 December 2015 12:08

Christmas Party Survival Guide

We are now in full swing of the Christmas party season. Who can forget the Christmas party scenes from Bridget Jones’s Diary; Bridget’s off key karaoke sessions, Daniel Cleaver harassing his female colleagues, Mark Darcy’s infamous reindeer jumper and of course Bridget’s mother serving mini-gherkins. I think we have all witnessed similar occurrences at Christmas parties over the years.


In the knowledge that the countdown to your Christmas party has probably begun, here are my top 5 tips on how best to survive the office Christmas party this year.


1. Never forget that whilst you are attending a party, it is a work related party and actions have consequences. Your behaviour is governed by a disciplinary procedure which, if violated, can threaten not only your job but also your personal record. If you want to go far, try to avoid the bar.

2. Open bar? Remember, everything in moderation. It is nice to have an eggnog or glass of mulled wine during the festive season but try not to drink excessively. When we drink we lose our inhibitions and pose the risk of acting inappropriately. Can you imagine the embarrassment of knowing that you rocked the room with an off key karaoke version of ‘All I want for Christmas is you’ dedicated to your boss. Cringe!

3. In the words of Aretha Franklin have a little R-E-S-P-E-C-T for your colleagues by keeping your thoughts to yourself during the party.  Now is not the time to express anger, harsh opinions, malicious gossip or confront your less than favourite co-worker. Instead, count to ten and bite your tongue.

4. Refrain from doing a Daniel Cleaver. Don’t harass the object of your desire at the office party unless you know the feeling to be mutual. Harassment is a serious offence which results in disciplinary action; don’t risk losing your job or your dignity.

5. Finally, remember to enjoy yourself. Tis’ the season to be jolly, after all. None of these guidelines are designed to oppress your evening, they are designed to make it even better. Put on your novelty Christmas jumper, dance awkwardly to Band Aid, make new friends, remember to laugh and don’t forget to bring your camera, create memories that will last a lifetime.

On a more serious note, if you are an employer reading these guidelines and perhaps fear that some of the actions mentioned in the post pose an actual risk at this year’s Christmas party, ensure you have some official guidelines in place.


This email address is being protected from spambots. You need JavaScript enabled to view it. 


Thanks to Natalie Cook for her input on today’s HR blog post.   


Merry Christmas!



Published in HR Blog...

 

The Case:

Mr R was employed by the Department of Transport and spent a lot of time out on the road.  He had a company credit card to pay for hire cars and company related expenses.  He was not allowed to use the credit card for personal expenses. 

 

The Investigation:

Mr R was investigated for excessive use of the credit card including high petrol use and a hire car for personal use. 

 

The initial investigation reported that Mr R had been misusing the credit card but stated that it was not deliberate and his reasons were consistent and plausible.  The report recommended an outcome of misconduct and a final written warning. 

 

HR’s Influence:

A member of the HR team reviewed the report and over a significant period of time, comments and amendments were made which included the removal of some favourable comments.  The final report then recommended that Mr R be found guilty of gross misconduct and summarily dismissed.  This action was carried out by the chairperson of the disciplinary hearing. 

 

Employment Tribunal:

Mr R raised an employment tribunal against the company but lost his case. 

 

Employment Appeal Tribunal:

Mr R then appealed to the Employment Appeal Tribunal (EAT).  The EAT held that the report of an investigating officer must be the product of their own investigations. Although a dismissing or investigating officer is entitled to seek guidance from HR, such advice should be limited to matters of employment law and procedure (as opposed to matters of culpability). HR is allowed to assist the investigating officer in the presentation of their report, but only for example by ensuring that all necessary matters have been addressed and to achieve clarity.  All decisions must be made by the investigation officer and the chairperson of the disciplinary hearing.  Mr R won his case. 

 

What you should do:

When you seek advice from our HR consultants, we will advise you on the disciplinary procedures that need to be followed, letter writing to ensure all details are correct, suitable outcomes and any potential problem areas.  We will always highlight any employment law concerns and clarification can be sought from our employment lawyer if required.  The final decision on any dismissal will be made by you, the employer. 

 

Published in HR Blog...