ThePeopleAlchemist Edit: HR, Business and ill health at work

ll-health at work can be a sensitive issue, especially when handling long term or repeated absence. Tribunals have sympathy for employees with health issues, even where no disability is involved, and expect employers to take steps to obtain medical evidence, to consult with employees and only dismiss were “reasonable”. The difficulty with dealing with absence is treading the line between making reasonable adjustments for someone who is genuinely sick and not tolerating anyone trying to use the system. Not making reasonable adjustment for someone’s illness – whether physical or mental – could lead to a claim and can be tricky because there are lots of different strands – you can directly discriminate, indirectly discriminate, there can be discrimination arising from a disability, and the way you build a defence depends on what type of claim it is. Should the question of a potential dismissal arise, it is worth taking into consideration a recent Court ruling, specifically that the ACAS code of practice on disciplinary and grievance does not extend to dismissals on the grounds of ill-health. In “Holmes v QinetiQ” Holmes (who was disabled) worked as a security guard. Following extensive absences, he was dismissed, as it was felt he could not do his job. At the tribunal, Qinetiq agreed it had treated him unfairly and had failed to obtain up-to-date health reports. Homes won compensation but the tribunal did not uplift the ward by 25%, which tends to happen if an employer has not complied with the ACAS code, and he appealed. The appeal was based on three grounds of which one is applicable here - that the ACAS code of practice applied in the circumstances and so an uplift was available. All three, however, failed. The Employment Appeal Tribunal (EAT) did not even consider any specific breaches of the code, choosing to focus on applicability and found that:

• The Code will only apply if there is 'culpable conduct' by the employee
• It discussed whether the word 'disciplinary' should be given a wide meaning to include any detrimental action taken against an employee (including dismissal for ill health) or
• A narrow meaning restricting it to punishing an employee or correcting their actions.

The conclusion was that the narrow interpretation is correct. When the ill health leads to the employee performing his role to an unsatisfactory standard there would be no culpable conduct. It was hard to see any circumstances in which it would be justified to apportion blame to an employee who was performing poorly only due to his genuine ill-health. On the other hand, when an employee fails to comply with the relevant sickness procedures or where the circumstances give rise to a suspicion that the ill health is not genuine, then there is an allegation of culpable conduct, the severity of which does not matter, the mere presence is enough for the Code to apply. In these circumstances, the Code applies so far as the culpable conduct is concerned. Holmes was therefore not entitled to uplift for breaching the Code. So, in practice:

• The EAT stated that the ACAS Code applies to deal with the culpable conduct and not the lack of capability so when this initial investigation is ongoing the Code will continue to apply.
• As soon as the issue becomes restricted purely to capability due to ill health then the Code does not have to be followed, allowing greater flexibility for employers.
• The difficulties arise when there is poor performance involved as this must first be investigated in full, often with the use of a disciplinary procedure.
• If there is any likelihood that the disciplinary procedure should be followed then it must be and it is important to closely scrutinise attendance and performance records before deciding that the Code does not apply.