Bearing in mind that the Statement of Fitness for Work comes in from 6th April 2010, getting detail at the end of February is not the most helpful, but it is available now and if you haven’t downloaded it, you can get it from the Department for Work and Pensions web site (www.dwp.gov.uk/fitnote).
ACAS are also offering training. The one in the East Midlands is available in Nottingham on 7th April – the day after the new system starts!
Under the “old” Sick Note system, doctors could only advise the patient that they should, or should not, be at work. This has led to employers contracting with Occupational Health (OH) professionals to obtain further advice about employees’ illness, aids and adaptations and likely return to work.
The new Fit Note will contain different information. It will still allow the doctor to state that “you are not fit for work”. But it will also allow them to certify that “you may be fit for work taking into account of the following advice.
If available and with your employer’s agreement, you may benefit from:
• A phased return to work
• Amended duties
• Altered hours
• Workplace adaptations
Comments, including functional effects of your condition.”
The certificate then goes on to say how long this will be for and if the doctor needs to see you again.
I am sure that all HR Managers are working through the implications now but here are some that I came up with.
• Absence Policy
Need to review this and update it where necessary.
• Advice to Managers
Consider if you need to extend your advice on what to do when faced with a “fit to work taking account of”, situation
• Submissions to OH
If faced with a “fit to work taking account of” situation will you submit to OH – or not? The guidance says that if a doctor feels an assessment by an OH professional is required, they will state it here. This cannot prevent the employer submitting the individual to OH, for example if they hit any trigger points.
• What will you do if you cannot accommodate the adaptations and will this be held against you at an employment tribunal?
The guidance says quite clearly that the individual will therefore remain sick. There is no obligation to make the changes, unless the employee is treated as disabled under the meaning of the Disability Discrimination Act (DDA). If disabled legislation applies then adaptations are required as reasonable alterations. The guidance contains a flow chart, which suggests that the employee will need to discuss the advice with the manager. At the end of the day it is the manager’s decision and for the manager to justify at any appeal or tribunal. It may well be that a failure to agree some minor alterations will be used by an employee to show a pattern of poor behaviour by an employer and it will be for tribunals to decide on the facts of any subsequent claim.
The case studies included in the guide all speak about the employee taking the advice and discussing it with the employer. This may be an initial cause of problems if the manager is part of the reason for the absence.
It may be worthwhile to consider that the purpose of the change is to reduce the national sickness rates and it would be sensible for any employer to consider realistic alterations to the employees work to facilitate an early return.
Tuesday, 20 April 2010
Religion or Belief
It was Elizabeth I who said that she had no desire to make windows into men’s souls. I am not sure what she would have made of some recent employment cases concerning religion or belief during the reign of her namesake.
You will recall that the Employment Equality (Religion or Belief) Regulations of 2003, introduced protection against discrimination on the grounds of religion or belief. The structure of the regulations is broadly similar to other anti-discrimination law on sex, race and disability, with the addition of a new free standing protection against harassment. The regulations cover both religious and non-religious belief, so it is unlawful to discriminate against someone because they do not hold particular religious beliefs, as well as holding them.
In London Borough of Islington v Ladele, the claimant was a registrar of births, deaths and marriages, who argued that she had suffered direct religious discrimination when disciplinary procedures were taken against her because she refused to conduct civil partnership ceremonies. She contended that she held orthodox Christian belief that same-sex partnerships were not in accordance with God’s law.
The EAT rejected her claim of direct discrimination, stating that the disciplinary action was taken against her because of her conduct in refusing to carry out her job duties. They also rejected her claim for indirect religious discrimination because the employer was able to demonstrate that its policy of requiring all registrars to conduct civil partnerships was proportionate to the legitimate aim of promoting equal opportunities, and more specifically, providing the civil partnership service in a non-discriminatory way.
This decision was appealed to the Court of Appeal who upheld the EAT decision.
In McFarlane v Relate Avon Ltd the EAT held that a counsellor who was dismissed because of his failure to give an unequivocal commitment to counsel same-sex couples was not discriminated against on the grounds of belief.
Relate employed Mr McFarlane as a counsellor and they provide a relationship counselling service to the public. They operate in accordance with the British Association for Sexual and Relationship Therapy’s Code of Ethics and their own equal opportunities policy. Relate provides services on an equal basis to both same-sex and heterosexual couples.
McFarlane was a Christian, who believed that same-sex sexual activity was sinful. Whilst undertaking a diploma in psycho-sexual therapy (PST), he asked to be removed from any obligation to work with same-sex couples where same-sex sexual issues were involved. Relate told him that such removal would be contrary to their equal opportunities policy, to which he had agreed when he joined. Therefore, his request was refused and he was asked to confirm that he would work with same-sex couples, including on PST issues.
Initially he complied with the instruction, but his supervisor then reported that following a conversation she had with him, she believed that he would not work with same-sex couples on PST counselling. Mr McFarlane did not give an unequivocal commitment and disciplinary proceedings were issued, under which he was dismissed. He complained to an Employment Tribunal.
The ET rejected his claims of direct and indirect discrimination. They stated that his perceived unwillingness to provide PST counselling to same sex couples was the reason for the dismissal and a non-Christian who demonstrated the same behaviour would also have been dismissed.
Concerning the claim for indirect discrimination, they recognised that the policies put persons of the same religion as Mr McFarlane at a disadvantage, but it was a proportionate means of achieving a legitimate aim and was therefore not unlawful.
The EAT upheld the decision and cited the London Borough of Islington v Ladele
case. The EAT stated that it had to be justifiable that Relate employees complied with its equal opportunities policies and procedures in providing a non -discriminatory service.
The final case is of Grainger plc and ors v Nicholson. Nicholson, who was Head of Sustainability, was made redundant by Grainger and he brought a number of claims, including unfair dismissal and discrimination on the grounds of religion or belief.
The discrimination claim was on the grounds that he had "a strongly held philosophical belief about climate change and the environment". He argued that his beliefs were "not merely an opinion, but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears." A pre-hearing review was held to consider various issues, including whether Nicholson's beliefs were protected.
The employment judge held that Nicholson's beliefs were capable of being a belief for the purposes of the regulations, taking into account the case of McClintock, where the EAT held that the test for determining whether beliefs can be considered to fall into the category of a philosophical belief is whether they have "sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society."
The employment judge held it was difficult to argue that beliefs around the impact of climate change did not fall within this definition and Nicholson's beliefs gave rise to the sort of moral order derived from most religions.
The EAT have agreed with him. They stated that they were satisfied that his beliefs were genuine, worthy of respect in a civilised society and that they had a sufficient level of cogency, seriousness, cohesion and importance with regard to case law of the ECHR.
Comment
Both Ladele and McFarlane sought the protection of discrimination legislation to, in effect, discriminate against another group. The courts have been quite firm in saying that employees cannot use Religion or Belief legislation to do this – there is no protection available in law to discriminate under these circumstances. Both judgements relied heavily on the organisations equal opportunities policies and the legitimate aim of both organisations to provide a service to all.
The EAT commented in both cases that employers should encourage flexibility and accommodation where necessary and employers should handle sensitively conflicting beliefs and rights. However both cases revolved around an absolute refusal so it is difficult to see what the employers could do other then to move the employee to a different position. Would the employer then be seen to be conniving with the employee in his or her discriminatory views, also in conflict with a well written equal opportunities policy?
The Grainger case result is far more complex. Grainger has not had his unfair dismissal case heard yet – the EAT decision was only about his claim to use the Religion or Belief legislation. He will still have to demonstrate to a tribunal that he was unfairly discriminated against because of his climate change beliefs.
This is the first reported case where a claimant has successfully argued a belief which was not a religious belief may be protected under the regulations. Previously, tribunals have tended to take a narrow interpretation of what could amount to a belief.
For example, patriotism and loyalty to a flag or support for the British National Party were found not to fall within the definition, although both these cases were made before the definition was amended. While not binding on other tribunals, this case does suggest a broader approach.
Based on this view, strong opinions on vegetarianism or sexual abstinence or those of survivalists would arguably be capable of constituting a "belief".
However, as the employment judge noted, claimants may often find it difficult to establish that the reason for their treatment was on the grounds of their belief, so it is unlikely there will be a deluge of these types of claims.
You will recall that the Employment Equality (Religion or Belief) Regulations of 2003, introduced protection against discrimination on the grounds of religion or belief. The structure of the regulations is broadly similar to other anti-discrimination law on sex, race and disability, with the addition of a new free standing protection against harassment. The regulations cover both religious and non-religious belief, so it is unlawful to discriminate against someone because they do not hold particular religious beliefs, as well as holding them.
In London Borough of Islington v Ladele, the claimant was a registrar of births, deaths and marriages, who argued that she had suffered direct religious discrimination when disciplinary procedures were taken against her because she refused to conduct civil partnership ceremonies. She contended that she held orthodox Christian belief that same-sex partnerships were not in accordance with God’s law.
The EAT rejected her claim of direct discrimination, stating that the disciplinary action was taken against her because of her conduct in refusing to carry out her job duties. They also rejected her claim for indirect religious discrimination because the employer was able to demonstrate that its policy of requiring all registrars to conduct civil partnerships was proportionate to the legitimate aim of promoting equal opportunities, and more specifically, providing the civil partnership service in a non-discriminatory way.
This decision was appealed to the Court of Appeal who upheld the EAT decision.
In McFarlane v Relate Avon Ltd the EAT held that a counsellor who was dismissed because of his failure to give an unequivocal commitment to counsel same-sex couples was not discriminated against on the grounds of belief.
Relate employed Mr McFarlane as a counsellor and they provide a relationship counselling service to the public. They operate in accordance with the British Association for Sexual and Relationship Therapy’s Code of Ethics and their own equal opportunities policy. Relate provides services on an equal basis to both same-sex and heterosexual couples.
McFarlane was a Christian, who believed that same-sex sexual activity was sinful. Whilst undertaking a diploma in psycho-sexual therapy (PST), he asked to be removed from any obligation to work with same-sex couples where same-sex sexual issues were involved. Relate told him that such removal would be contrary to their equal opportunities policy, to which he had agreed when he joined. Therefore, his request was refused and he was asked to confirm that he would work with same-sex couples, including on PST issues.
Initially he complied with the instruction, but his supervisor then reported that following a conversation she had with him, she believed that he would not work with same-sex couples on PST counselling. Mr McFarlane did not give an unequivocal commitment and disciplinary proceedings were issued, under which he was dismissed. He complained to an Employment Tribunal.
The ET rejected his claims of direct and indirect discrimination. They stated that his perceived unwillingness to provide PST counselling to same sex couples was the reason for the dismissal and a non-Christian who demonstrated the same behaviour would also have been dismissed.
Concerning the claim for indirect discrimination, they recognised that the policies put persons of the same religion as Mr McFarlane at a disadvantage, but it was a proportionate means of achieving a legitimate aim and was therefore not unlawful.
The EAT upheld the decision and cited the London Borough of Islington v Ladele
case. The EAT stated that it had to be justifiable that Relate employees complied with its equal opportunities policies and procedures in providing a non -discriminatory service.
The final case is of Grainger plc and ors v Nicholson. Nicholson, who was Head of Sustainability, was made redundant by Grainger and he brought a number of claims, including unfair dismissal and discrimination on the grounds of religion or belief.
The discrimination claim was on the grounds that he had "a strongly held philosophical belief about climate change and the environment". He argued that his beliefs were "not merely an opinion, but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears." A pre-hearing review was held to consider various issues, including whether Nicholson's beliefs were protected.
The employment judge held that Nicholson's beliefs were capable of being a belief for the purposes of the regulations, taking into account the case of McClintock, where the EAT held that the test for determining whether beliefs can be considered to fall into the category of a philosophical belief is whether they have "sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society."
The employment judge held it was difficult to argue that beliefs around the impact of climate change did not fall within this definition and Nicholson's beliefs gave rise to the sort of moral order derived from most religions.
The EAT have agreed with him. They stated that they were satisfied that his beliefs were genuine, worthy of respect in a civilised society and that they had a sufficient level of cogency, seriousness, cohesion and importance with regard to case law of the ECHR.
Comment
Both Ladele and McFarlane sought the protection of discrimination legislation to, in effect, discriminate against another group. The courts have been quite firm in saying that employees cannot use Religion or Belief legislation to do this – there is no protection available in law to discriminate under these circumstances. Both judgements relied heavily on the organisations equal opportunities policies and the legitimate aim of both organisations to provide a service to all.
The EAT commented in both cases that employers should encourage flexibility and accommodation where necessary and employers should handle sensitively conflicting beliefs and rights. However both cases revolved around an absolute refusal so it is difficult to see what the employers could do other then to move the employee to a different position. Would the employer then be seen to be conniving with the employee in his or her discriminatory views, also in conflict with a well written equal opportunities policy?
The Grainger case result is far more complex. Grainger has not had his unfair dismissal case heard yet – the EAT decision was only about his claim to use the Religion or Belief legislation. He will still have to demonstrate to a tribunal that he was unfairly discriminated against because of his climate change beliefs.
This is the first reported case where a claimant has successfully argued a belief which was not a religious belief may be protected under the regulations. Previously, tribunals have tended to take a narrow interpretation of what could amount to a belief.
For example, patriotism and loyalty to a flag or support for the British National Party were found not to fall within the definition, although both these cases were made before the definition was amended. While not binding on other tribunals, this case does suggest a broader approach.
Based on this view, strong opinions on vegetarianism or sexual abstinence or those of survivalists would arguably be capable of constituting a "belief".
However, as the employment judge noted, claimants may often find it difficult to establish that the reason for their treatment was on the grounds of their belief, so it is unlikely there will be a deluge of these types of claims.
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