Disability - What constitutes a 'mental impairment'?

2010-06-20T23:38:00.000-07:00

Employers often find themselves faced with a doctor's note that reads something along the lines of...

" 4 weeks off work. Reason - stress"

This is largely unhelpful for the employer, as anyone who has experienced this will know! The difficulty arises here because mental impairments are always more difficult to assess - every condition is different. It is generally easier to see how an employee's 'day to day activities' are affected by a physical injury (such as a bad back), making it simpler to determine whether or not the employee is likely to be classed as 'disabled' (thereby requiring the employer to consider reasonable adjustments).

The Employment Appeal Tribunal (EAT) has recently handed down an interesting judgment concerning an employee who apparently suffered from depression.

The EAT held that, although there is a technical difference between 'depression' and a reaction to adverse life events, little turns on the distinction because tribunals should be concerned with the practical impact of any symptoms on day-to-day activities. The clinical label applied (if any) was of little relevance.

Employers should therefore give little weight to the 'label' applied by an employee's GP. Take a practical approach to the condition and look past the written diagnosis.

Tom

World Cup Fever – Avoiding Legal Penalties!

2010-06-17T07:49:00.000-07:00

With the 2010 World Cup just days away, fans of all nationalities are geared up for what promises to be an exciting month of football. For employers, however, it presents some challenging workforce issues.

I set out below a few helpful FAQs to assist employers in dealing with the tricky personnel issues which inevitably accompany an event of this magnitude and public interest.

Q We are concerned that employees may try and pull "sickies" to watch the games that clash with their working hours. How can we combat this problem?

A - Employers can require employees who call in sick on match days or the day after to provide medical evidence in the form of a relevant sickness certificate, or evidence of a visit to their GP. However, employers must implement this policy consistently across the workforce, even in respect of those employees who may have a genuine ailment. Provided all employees are treated the same in this regard, the employer will not expose itself to any potential claims of discrimination.

Q We are concerned that employees will spend all day reading about the World Cup Online. How do we deal with this?

A - Employers will need to check their individual IT policies to ensure that the level of personal usage which is permitted during working hours is made clear. Strictly speaking, failure by staff to adhere to the employer's IT policy may be a disciplinary offence.

However, employers may be better served by accepting that employee productivity will be down during the World Cup, and that taking disciplinary action against an employee for spending excessive time on the internet may cause irreparable damage to the working relationship.

Q Most of our staff want to take time off to watch the matches. Do we have to allow this, even if it will leave us short-staffed?

A - Employees are not entitled to insist that they take their annual leave during the World Cup. Requests for holiday can be refused by the employer. The fact that a major sporting event is ongoing does not prevent the employer putting its business needs first.

However, given that the World Cup only comes around once every 4 years, there is a strong practical argument for allowing a reasonable amount of time off to ensure that employees do not take matters into their own hands and call in sick instead.

Employers should remember, however, that not all football fans in the workforce are English, and not all are male. Fair treatment should therefore be given to those employees who support one of the other 31 nations in the competition. Likewise, requests for annual leave from female fans, or from those employees who have no interest in football, should be considered equally.

Q Everyone seems to want to watch the England games! I need people in work, so what can I do to keep my business running smoothly?

A - If it is not possible to accommodate everyone's annual leave requests to fit in with popular matches, it may be possible for employers to consider more imaginative solutions.

For example, employers could introduce 'shift swaps', or could allow their staff to start and finish their working day earlier or later than usual. It may also be possible to show some matches on a TV in the workplace where staff could work through their lunch and/or start work slightly earlier than usual in order to make up the time.

It is important to remember that employees who are not interested in the football should be afforded similar perks wherever possible. For example, many people are avid followers of the Ashes or Wimbledon, and the employer should bear this in mind when these events come around later in the year.

Q Do I have to allow my staff to wear their football shirts in work?

A - Most employers have a dress code of sorts. Employees can be disciplined if they fail to obey a reasonable order (such as adhering to the dress code or wearing suitable attire to work). That said, there may be a considerable benefit in allowing employees to wear their shirts to work in circumstances where it will not affect the business or the working environment. Keeping employee morale high is always beneficial to the employer.

Once again, please remember that this policy should be implemented consistently throughout your workplace. It should not simply be extended to those employees who wish to wear England football shirts.

Q How should I deal with fans' rivalries in the office?

A - Employers should remember that football-related banter between fans of rival countries may appear to be in good spirits, but can in some circumstances amount to harassment on the grounds of race or nationality. Employers should therefore protect themselves by expressly clarifying that taunting of rival fans in the workplace will not be accepted.

Q We often read about football related violence. If our employees are involved in any such incidents, can we discipline them?

A - Unfortunately, it is not always possible to discipline or dismiss an employee for actions carried out in their own time. It will be necessary to illustrate a link between the act of hooliganism and the employer's business. If, for example, an employee is caught on the local news wearing a company branded t-shirt, or works in a role where their face is instantly recognisable by clients or customers, it may be possible to commence disciplinary action against them. However, we would strongly suggest that you take expert advice before proceeding down this path. In short, take a fair, consistent and sensible approach – keeping staff morale high by allowing flexibility to watch games can be a real plus for your business – but remember you are entitled to put your business needs first.
If you have any other queries about how to deal with personnel issues that arise during the World Cup, please let me know on 01392 687609 or tom.stenner-evans@michelmores.com.

Tom

Welcome to the Employment Law Blog

2010-06-17T07:29:00.001-07:00

Hello, and welcome to the Michelmores Employment Law Blog.

Employment law is a dynamic field that changes on an almost-daily basis. We recognise that it isn't easy for business owners, managers and even HR professionals to keep on top of the constant developments.

Although there are monthly update emails, training seminars and, of course, Google(!) to rely on, we have come to the conclusion that clients would benefit from a constant stream of useful employment law updates on the larger and more relevant changes to the law.

And so the Employment Law Blog was born.

We hope you find it useful and informative. My first post (to follow shortly) will be a topical Q&A piece on employment law issues during the World Cup.

Regards

Tom Stenner-Evans

The content of this blog is intended only as generic guidance. Its contents should not relied upon as a substitute to bespoke legal advice.

Employment Law Advice

Disability - What constitutes a 'mental impairment'?

World Cup Fever – Avoiding Legal Penalties!

Welcome to the Employment Law Blog