Need help with capability and long term sickness?
If you have a condition that effects your everyday life, is a long term or progressive condition, then you may be classed as disabled under the Equality act 2010 (EqA10). This is especially important if you are facing a formal sickness review process and a possible capability hearing.
The definition of disability is much more encompassing than a lot of people realise. The EqA10 defines 'disability' as someone who has a 'physical or mental impairment, that has a substantial and long term adverse effect on that persons ability to carry out everyday activities.'
Having been involved in a few long term sickness issues with women members, it concerns me that some staff may have protection under the EqA10, and are not being afforded the legal protection that this powerful European law requires of employers.
Whether someone is classed as disabled can only be determined by the courts, although there is guidance and case law that can help to determine if someone may be covered.
The Trust will usually ask an Occupational Health Doctor for their opinion on whether someone is classed as disabled under the EqA10. This is important to realise, as some people may 'play down' their symptoms when faced with a health appointment instigated by their employer. It's important to contact your UNISON rep or county lead as soon as possible, so they can advise you early on.
How does this Equality Act help me?
If you are classed as disabled under the EqA10, then you have greater protection in law. This includes the duty on an employer to make 'reasonable adjustments.' On the face of it these words, used to describe the steps an employer has to take to enable a person classed as disabled under the EqA10 to return to the workplace can be viewed in many ways. Over the years case law has defined the steps employers are supposed to take and the level of 'reasonable' that the courts view as necessary. Historically this has been underestimated by employers.
Why is case law important?
Case law sets a precedent for the way the laws are interpreted. This means that over time the bare bones of the law and the working of these laws are used by Judges to define how it will affect the people the law relates to. The actual wording of the law is not changed, although over time the meaning and application is defined by this case law.
A good example of this is the case of Meikle -v- Nottinghamshire County Council (2004 IRLR 703 CA)
Ms Meikle was signed off work as she was unable to continue in a situation where her employer had failed to make necessary reasonable adjustments to her workplace. The employer reduced Ms Meikles pay to half after 6 months, and this was viewed as disability discrimination by the courts. It would have been a reasonable adjustment for the employer to continue to pay her full pay, while they looked into reasonable adjustments, rather than penalise her financially for her disability.
The duty of the employer to make 'reasonable adjustments,' can include, allocating some of the disabled employees duties to another employee, transferring an employee into a vacancy without the need to got through a competitive interview process, creating/devising a new job role, offering training to allow the employee to take on a different/higher paid role, moving a non disabled employee to make room for the disabled employee. Under the act employers are allowed to favour disabled employees.
Generally the larger the employer the more they have at their disposal to make these adjustments.
In the case of Ridout -v- TC Group (1999 IRLR 628 EAT) it established that the onus to suggest reasonable adjustments lies with the employer - they cannot assume that their duty has been discharged if the disabled employee and their adviser cannot suggest any suitable adjustments.
Although it is always advisable, to make some suggestions on reasonable, as this makes is more difficult for the employer to argue that no adjustments exist.
UNISON can offer advice to members who may be classed as disabled under the EqA10, including referral to a specialist employment law solicitor, if necessary.
If you'd like more information, or need help with capability, please contact your local rep, county lead, or a branch officer.
We also have a dedicated Officer for Disabled members (David Edwards) who you can contact for help, support or advice.
Contact details can be found on the branch website: http://www.eeas-unison.com/ or on the back of this newsletter.
UNISON Women's Officer