Archives for March 2013

Disabled employees can be sacked for poor attendance

Some employers think it isn’t possible to terminate the employment of an employee with a poor employment record if they are disabled. That’s not true. A recent case confirms that and illustrates how it can be a fair dismissal.

The employee had a long record of intermittent short term absences based on back problems, chest problems and stress-related conditions which were manifested as anxiety, panic attacks and sleep disorders. His absences were managed under a strict short-term absence policy. Meetings were postponed or held in his absence when he failed to attend. He was given a first written warning under the short-term absence policy and transferred to the employer’s long-term absence procedure. After an Occupational Health report the employee was asked to complete a “stress at work” questionnaire. He never did, despite a reminder. At a final stage meeting under the long-term absence procedure the employer took the view that the employee’s continued absence was unfair to colleagues, the department was under pressure, and there was a possibility the employee might not in fact return to work.

The employee’s claim for unfair dismissal was rejected. The Employment Tribunal and Employment Appeal Tribunal ruled that he had not been subject to discrimination on grounds of his disability. The employer had a duty to make reasonable adjustments but none had been suggested by the employee. It would not have been a reasonable adjustment for the employer to exempt the employee from its absence management policy.

Every case turns on unique facts. In this case the employer had followed set procedure which was strictly applied to all employees. An error in applying the policies did not invalidate them. Even the decision to terminate when the OH assessment said the employee might be ready for a phased return in a couple of months was upheld on the basis this was only a possibility. The EAT noted that the tribunal had found that “this was not a borderline case” as the employee’s absence record was “severely poor”; he had been absent for 100 days in the previous eight months.

The lessons? For employers it is to have policies to manage absences and to apply them consistently. For employees who have a disability it is to challenge the employer with practical reasonable adjustments that could overcome the effect of the disability (EAT) which then places the burden on the employer of justifying why they would not be reasonable or effective.

Equality Act 2010 places an employer under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, put a disabled person at a substantial disadvantage in comparison with persons who were not disabled. The duty is “to take such steps as it is reasonable, in all the circumstances of the case, for the employer to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect”.

Jennings v Bart’s and the London NHS Trust UKEAT/0056/12

For advice on Employment Law contact Neil Howlett or Andy Hambleton.

Late Payment of Commercial Debts

In tough times cash is king, which means efficient credit control. The Late Payment of Commercial Debts (Interest) Act 1998 has always been a useful tool. It gives a statutory right to interest of 8% over the current base rate, plus a right to charge a fixed sum for your costs of recovery (currently £40 for a debt of less than £1,000). These are good rates. You don’t have to go to court to get them. You don’t even have to have this written into your Terms & Conditions – if you have a lower rate of interest in these you may not be able charge the Late Payment Rate. Businesses are entitled to claim interest and charges when a debt remains unpaid after the date specified on the contract, or in the absence of a contract, 30 days after the delivery of the goods or service.

From 16th March 2013 the Late Payment legislation has been reinforced. For contracts entered into on or after that date with non-public authority purchasers, there will be a maximum payment period before Late Payment Interest of up to 60 days. Where the purchaser is a public authority purchaser, the maximum payment period is 30 days. These periods run from the later of the receipt of the supplier’s invoice, or the receipt of the goods and/or services. It is possible for the parties to agree a longer period or a trigger based on the purchasers confirmation the goods and/or services are in accordance with the contract, but these variations must not be ‘grossly unfair’ to the supplier. The aim of these changes is to put pressure on payers. The intention is that most will abide by these deadlines and not take the risk that seeking longer terms may be found to be unfair.

Also, where the supplier’s actual costs in recovering the debt exceed the fixed charge sums the supplier will have a right to recover the reasonable costs of recovering any debt.

You can find the new regulations and helpful guidance on operating them, including online interest calculators, and templates at Pay on Time

Finally, for those who wonder about the impact of the European Parliament and Council, the recent changes implement EU Directive 2011/EU.

This note is for information only, the Late Payment regulations have exceptions and you should look at the guidance or take advice before using them.

For further help contact Neil Howlett in Frome or Andy Hambleton in Wells