Mental disabilities   Does a doctors certificate stating 'stress' or 'clinical depression' demonstrate a disability?

Asthma and employers’ responsibilities   Is asthma a disability?

Avoiding common redundancy pitfalls   Find out how to avoid potential costly mistakes

Compromise agreements   Discover how they can help with redundancy

Tribunal Insurance   The modern way to reduce employment legislation risk

Mental disabilities

The Disability Discrimination Act (DDA) came in to force in 1995. Cases have been coming through thick and fast and it is only now that the Act is becoming clearer as the tribunals and courts have had an opportunity to consider the Act.

The meaning of disability according to the act (schedule 1)

• "a physical or mental impairment which has a substantial and long-term adverse effect on (the person’s) ability to carry out normal day to day activities."
• ‘Long term’ means that the disability has lasted 12 months or is expected to last 12 months. It does not have to be continuous and can be intermittent.
• Mental impairment loosely described as ‘stress’ or ‘clinical depression’ on Doctor’s certificates may be considered insufficient to demonstrate disability. The Act says that the illness must be a well recognised clinical psychiatric condition or illness.

In the case of McNicol v Balfour Rail Maintenance Ltd [2002], Mr McNicol suffered by back pain. It was established that there was no physical cause and was diagnosed as ‘functional overlay’, which is a psychological condition in which the individual continues to feel pain even though the cause no longer exists. This, however, is not a recognised clinical psychiatric condition and the Employment Tribunal rejected the claim that McNicol was suffering from a disability.

In the case of Morgan v Staffordshire University [2002], Mrs Morgan, a catering worker had been assaulted by her female supervisor. She was offered alternative employment but there was no assurance that she might not come across her assailant again. Mrs Morgan resigned and claimed constructive dismissal and disability discrimination. During her employment she had taken time off with Doctor’s certificates for stress, anxiety and depression. Her mistake at the tribunal was that she relied on just the GP’s certificates and no ‘informed medical evidence’ showing a diagnosis of a clinical condition was produced. The Employment Tribunal rejected her claim of Disability Discrimination.

It is not the job of the Tribunals to collect necessary medical evidence – however they may allow an adjournment for the parties to do so employers, however, have an obligation to address stress as part of their management of health and safety.

The DDA is still a complex area of employment law and needs to be handled with care and with professional advice. We believe that employers faced with a potential disability issue would do well to obtain advice and support from occupational health professionals and employment law advisers.

If you have disability issues at work and would like advice contact us on 01473 890037.

Asthma and employers’ responsibilities

In 1997 asthma was claimed as a disability under the Disability Discrimination Act 1995 in the case of Cox v The Post Office. Cox had been dismissed for his poor attendance record. The tribunal considered whether it was a physical impairment  which had a substantial adverse effect on the employee's ability to undertake normal day to day activities. Cox had also suffered from the condition for a number of years. What happened:

The tribunal confirmed that Cox's dismissal over disability-related absences was discriminatory and unfair.

The TUC also highlight a case study of a school cook who developed occupational asthma. With the help of her union, the cook secured compensation, which included back pay totalling £200,000. Could your organisation afford that? To ensure compliance with current legislation it is important for employers to be aware of:

• The causes of asthma.
• How to deal with employees that suffer with asthma prior to joining the organisation
• How to deal with employees who contract asthma whilst in their employment and comply with current legislation.

For occupational health advice and assessments, pre-employment and during employment health screening please contact Picasso HR Ltd on 01473 890037

Avoiding common redundancy pitfalls

When you are faced with making an employee redundant, there are many traps for the unwary. A claim of unfair dismissal may be brought against an employer if:

• the affected employee believes that it was not a true redundancy situation or
• the procedure was unfairly conducted or the employer behaved unreasonably.

Here are some issues employers need to be aware of based on our knowledge and experience;

Compromise agreements

If an employer wants to ensure that no claim is brought against him by his employee, he will ask the employee to sign a Compromise Agreement. A Compromise Agreement consists of payment of a sum of money to an employee, in return for which he agrees not to bring any proceedings relating to his employment against the employer. The first £30,000 is not taxable.

Compromise agreements can also be used in other situations when employment is terminated and an employer wants to avoid litigation. If you would like a Compromise Agreement drawn up or more information please call us on 01473 890037 or e-mail us.

An employer would be well advised to take professional advice before making redundancies.

Tribunal Insurance

Imagine this. You are the model employer. You have done everything by the book. You have taken advice and you are totally confident about the case against your employee. You sack the employee. 4 weeks later you are the not so pleased recipient of an IT3 form indicating that the ex-employee feels so aggrieved that you are being taken to an employment tribunal. You have already invested time and energy dealing with all the paperwork and communication, now you will have to take your eyes off the business to prepare for the tribunal case. However, worse is to come. Much worse. Despite you believing you have a cast iron case, the tribunal sees otherwise and you get stung for a huge amount of money – taken from your profit. Completely out of the blue, unforeseen, unplanned. Find out how to remove the uncertainty here

The only surprises business people like are at Christmas and birthdays. Businesses like to know where risk is present and to deal with that risk. Tribunal insurance protects companies against these unforeseen events.

How does our insurance work.

A company must demonstrate that they are competent employers and are adequately implementing employment legislation. This is easily achieved by working with Picasso HR for employment advice on a regular basis. Insurance premiums are paid on the basis of annual payroll. In the event of any incident that could ultimately result in a tribunal claim being brought against an employer, the employer must first seek advice from our HR advisors. This could involve the following for example:

• Long term sickness or absenteeism
• When a member of staff requires maternity benefits
• When interviews go wrong
• When considering redundancies

Insurance covers costly legal fees and most awards of compensation.

Picasso HR is able to provide insurance for employment disputes. For more information call us on 01473 890037

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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