Q:
I have a member of staff who has Multiple
Sclerosis. Most of the time she is well, but
occasionally, she suffers an episode where
she is quite debilitated and experiences blurred
vision and reduced power in her limbs. She
usually comes into work, but often is unable
to carry out major aspects of her job. I sympathise
greatly with her and she is a great asset
to us when she is well, but it is difficult
to accommodate her when she is poorly and
there isn’t enough room in the office
for me to bring in a temp to help out. The
work still needs to be done. What can I do?
A: You will be familiar with
the Disability Discrimination Act 1995 (DDA),
which is aimed at ensuring that staff are
not treated less favourably as a result of
disability. Section 6 of that Act stipulates
a duty on employers to make reasonable adjustments
to premises, to consider the reallocation
of duties, or even to look at transferring
an individual member of staff to an alternative
post by way of assisting them in work. The
Act doesn’t publish an exhaustive list,
and what is classed as “reasonable”
will depend on the specific circumstances
of each case. You will, therefore, have to
talk to this member of staff and find out
what you can do to assist her when she is
suffering from an episode of ill health. This
could include the provision of specialist
equipment or furniture - ergonomic chair,
assistive technology for the office etc.,
and could stretch to you reorganising her
job role to ensure that she isn’t undertaking
tasks that might be difficult.
You cannot assume she shouldn’t come
into work, nor must you refuse to allow her
to work or cease paying her. The Act’s
scope, in terms of reasonable adjustments,
requires that you consider offering this member
of staff a different job, even if it may involve
a change in the nature of her employment.
(Although there is no obligation to create
a vacancy where none exists.) However, if
you feel that this person cannot do the job
you have employed her to do and you do not
have an alternative, she would have a case
for unfair dismissal on the grounds of discrimination
if you have not made every effort to accommodate
her in some capacity within your organisation.
Q:
I have been asked to supply a reference for
a member of staff who was dismissed for misconduct.
Although I have no doubt his dismissal was
fair, he had previously had a long and relatively
blemish-free career with us. I have known
his family for some years and have no wish
to cause them long-term suffering. My question
surrounds the supply of references for this
man. If I write a reference which fairly reflects
his skills and abilities but doesn’t
go into detail about the reasons for his departure,
but include a statement in the reference that
it is given “without legal responsibility”,
am I covered?
A: I presume that by “Am
I covered?” you mean “Can I withhold
the truth?” Whilst a disclaimer couched
in those terms would free you from liability
when faced with an action for negligent misrepresentation,
I urge caution. It will be of little help
if it can be shown that you deliberately and
fraudulently misrepresented the employee’s
status in the organisation.
Q:
I have a member of staff who has been absent
from work for six months and who has been
seen out and about, apparently fit and well.
I made sure that the staff handbook, issued
with the statement of terms and conditions,
contains a clause about the requirement to
see an occupational health specialist under
the auspices of absence management. I have
interviewed this member of staff about his
absence and he agreed during the meeting to
an appointment with our occupational health
practitioner, with a view to me establishing
a likely return to work date. However, I have
heard from the Doctor that the member of staff
failed to turn up at the appointment. I wrote
to him stating that, unless he followed the
procedure, I would have no choice but to terminate
his contract on the grounds of unacceptable
attendance and have had a solicitor’s
letter in reply, stating that he refuses to
attend the medical examination. What do I
do now?
A: This is tricky as, on
the face of it, you have covered every angle.
Well done for ensuring that the contractual
requirement is written in for staff to undertake
medical examinations. However, even where
there is a contractual right to require a
medical examination, the member of staff cannot
be compelled to attend. If he continues to
refuse a subsequent appointment, then this
should be treated as a disciplinary matter
and the reasons for refusal considered at
the disciplinary hearing. Good luck!
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