February 19 2007 Employment Law Enews

Welcome to the latest edition of steeles employment law enewsletter.

Stress claims and counselling services

A recent decision of the Court of Appeal has confirmed that an employer who provides a confidential counselling service can still be held liable for psychological injury to an employee resulting from stress, even where the employee has not made use of the service.

The leading judgment in the area of workplace stress remains the decision of the Court of Appeal in the case of Hatton v Sutherland (2002). In that case, the court set out general guidance that should be applied in stress cases to determine whether the employer has breached its duty of care to the employee. The guidance remains good law and has been largely applied by the courts in stress claims since then. One of the factors the court said should be taken into account is whether the employer provides access to a confidential counselling service for employees suffering from stress. It was suggested that employers who offer such a service are unlikely to be held in breach of duty towards their employees.

This issue has been re-examined by the Court of Appeal in the recent case of Intel Corporation (UK) Ltd v Daw. The employee worked in the company's payroll department and had expressed concerns about her workload and the organisation of her work. Despite assurances made by managers, nothing was done to alleviate her workload and eventually she suffered a nervous breakdown. The High Court upheld her claim for negligence on the basis the employer had failed to take the necessary steps to reduce her workload. Whilst a confidential counselling service was available to all employees (and had not been used by the claimant), this was not enough to discharge the employer's duty of care. She was awarded a total of £135,000.

On appeal, the Court of Appeal confirmed this decision even though, on the face of it, it did not accord with the guidance in the Hatton case. The Court held that even though in Hatton it was stated that an employer who offers a counselling service is unlikely to be found in breach of duty, such services are not "a panacea by which an employer can discharge its duty of care in all cases". In the present case, the employee's problems could only be dealt with by management reducing her workload.

Sick pay for disabled employees

Knowing how to deal with employees who are on long-term sick leave, and who are likely to be regarded as "disabled" within the meaning of the Disability Discrimination Act 1995 (DDA) can be difficult for employers. The question of whether they should be paid a greater amount of sick pay than non-disabled employees has been considered again by the Employment Appeal Tribunal (EAT), and the answer seems to be that in most cases, this would not be regarded as a "reasonable adjustment" for the employer to make.

In Fowler v London Borough of Waltham Forest, the claimant had been absent from work for a disability-related illness for four years and there was no prospect of him returning to work in the immediate future. He had exhausted his entitlement to sick pay, although this had been extended by the employer on two occasions. He was dismissed under the employer's sickness procedure, although he was reinstated on appeal. His claim for disability discrimination was rejected by the tribunal and in particular, the tribunal held that the failure of the employer to pay the claimant sick pay or wages throughout his sickness absence did not amount to less favourable treatment for a reason related to his disability.

The EAT has now dismissed the claimant's appeal. It found there was no duty on the employer to pay additional sick pay as a reasonable adjustment under the DDA. The facts of the case were distinguished from that of Nottinghamshire County Council v Meikle (2004), where the employee's continued absence was caused by the employer's failure to make reasonable adjustments and the Court of Appeal had considered it was therefore reasonable that the employer should have to pay the employee during her absence. The EAT held in this case that save in exceptional circumstances (such as those in Meikle), payment of wages or sick pay to a disabled person absent from work could not constitute on its own a reasonable adjustment because it could not be said to facilitate a return to work.

Provided the employer has explored all the possible options for returning to work and the employee's absence is not due to any failure on the part of the employer to take the necessary steps to facilitate a return, it is unlikely to be necessary to pay a disabled employee sick pay above that provided in the contract.

Cancer in the workplace: new guidance

Useful new guidance on employing people suffering from cancer has been published in conjunction with the Chartered Institute of Personnel and Development (CIPD). The guidance, Cancer and Working: guidelines for employers, HR and line managers, has been produced following a recent survey that identified the need for advice and guidance on how to deal with cancer and cancer-related issues in the workplace. It is the result of a collaboration between the CIPD, the Working with Cancer group and Cancerbackup charity.

The guidelines have been written to address the needs of those affected by cancer, but can be applied to any employee diagnosed with a critical, life threatening or terminal illness. They provide guidance on the practical issues concerning such employees, including treatment programmes and returning to work. It recommends all employers to introduce a cancer/critical illness policy, and includes an example of such a policy.

Anyone diagnosed with cancer is now automatically protected by the provisions of the Disability Discrimination Act 1995, and the guide will help employers to act in accordance with their duties under the DDA. The guide can be accessed on the CIPD website

Breakfast Briefing: Dealing with Personal Disasters at Work - 8 March 2007

It is very likely that, at some point, most employees will be faced with a "personal disaster" which will impact on his/her working life. When faced with bereavement, emotional trauma, relationship breakdown, divorce or the serious illness of a spouse, to whom do your employees invariably turn at work - you!

Personal problems and stress have a major impact on the productivity of staff and therefore directly affect an employer's profitability. With this in mind we are hosting a breakfast briefing that will give you some of the answers and advice on what to do when faced with a variety of personal disasters. The briefing will provide you with valuable practical advice designed to help you and your staff cope with stressful situations. We will provide the legal background including advice on dealing with performance issues when an employee's work starts to suffer as a result of personal problems.

This briefing will include case studies and offer practical guidance on dealing with these issues. Participation through role play will provide an insight into how to respond to members of staff suffering from their own personal disasters.

Over breakfast, experts from steeles' Private Client and Employment teams will examine both the ethical responsibilities and prescribed legal duties placed upon employers. An expert from occupational health specialists Cavell and Lind Ltd will discuss the effects of personal stress on members of staff and how to deal with this. We are also delighted that an expert from the Sunshine Project will be joining us to provide guidance on dealing with issues such as bereavement.

This seminar will provide a unique opportunity to not only learn more about the issues facing employees and their legal background, but also to develop the skills necessary to deal with them. As an HR professional you cannot ignore your staff's "Personal Disasters" even if they want to!

This seminar takes place at King's Lynn Masonic Centre with a 7:45 for 8:00am start and concluding no later than 10:30am. The cost is £40 including VAT, to reserve your place please call 01603 598 000 or book online

This article copyright © 2007 Steeles Law llp. All rights reserved.