As we head into the summer months and COVID restrictions are due to ease, increasing numbers of employees will be requesting time off. With demand in certain industries also picking up such as in retail and hospitality, it will not be possible to please every individual. However, the past year of COVID lockdowns has left many individuals with residual scars. We are beginning to see a rise in long-term mental health claims and with the unknown of “long COVID”, we predict further increases in such claims which are capable of being considered a disability, under the Equality Act. A holiday may benefit these individuals and might even be recommended by their GPs. How can you handle these delicate situations appropriately?
In Cummins Ltd v Mohammed, an employee had been dismissed for gross misconduct, having allegedly not obtained authorisation for time off and flying to Pakistan on a ‘therapeutic holiday’. He had a valid sick note during this period and a GP had recommended a break to manage his anxiety and depression, which was accepted as a disability. However, an occupational health report within the same period had declared him fit to work. Mr Mohammed claimed that the holiday was arising out of his disability, and that Cummins Ltd had discriminated against him in dismissing him on that basis. The first instance tribunal agreed and Mr Mohammed was successful in his claims.
On appeal, it was held that the tribunal had failed to adequately consider why Mr Mohammed had been dismissed. Was it purely because of the ‘therapeutic holiday’? Was it because it had been unauthorised? Was it because an occupational health report had since declared him fit to work? Neither the employers reasoning for the dismissal or the employment tribunal’s decision was clear on this point.
Once it can be established what gross misconduct the employer is actually relying on, a tribunal should have considered whether the employer had genuine belief that Mr Mohammed was guilty of the misconduct and that the employer had reasonable grounds for that belief based on a reasonable investigation. Then, it needs to be considered whether the dismissal fell within the range of reasonable responses of an employer. This is the standard test and one that was not followed by the original tribunal in coming to their judgment. The Employment Appeal Tribunal was critical of how the employment tribunal reached their decision and the case was remitted to a different tribunal, to re-consider the above points.
What does this mean for you or your business, and what do you need to be doing now?
We are seeing more misconduct cases being linked to a disability, and in particular, claims under section 15 of the Equality Act “arising from” claims.
Given this, there are a number of issues you should consider arising from this case:
- Having a paper trail
A contested point in this case was whether the leave was in fact authorised. In not having complete meeting notes, and therefore creating a level of uncertainty, it is easier for claimants to litigate at tribunal.
Furthermore, simply having a paper trial is not good enough – the paper trail needs to be framed accurately and carefully, to ensure that there is no contradiction or ambiguity, between for instance, the actual reason for dismissal, and the reason given to the Claimant, at the time.
- Workplace policies
What do your workplace policies say about requesting leave? What do they say about the position, when an occupational health report says the employee is fit, but a current sick note says they are not? Do you have a mental health policy in place?
As requests for leave in the summer come rushing in, it may be worth reconsidering your workplace policies, to ensure they are fit for purpose and can additionally cover sensitive issues surrounding mental health, arising out of the pandemic. Furthermore, it should be noted that any ambiguities in your policies tend to be interpreted in favour of the employee, so make sure there is no ‘grey area’.
It is also fundamental that policies are not just gathering dust on a shelf – they must be followed and updated to reflect evolving good practices, to increase your chances of being considered as acting fairly, should it ever be called to question.
When imposing any sanction, you must be clear in showing that the ‘punishment fits the crime’. Have you clearly matched up the sanction with the allegations? Have you considered lesser sanctions that might be able to achieve the same aim, such as a final written warning, before dismissal?
Furthermore, what is the actual reason for sanctioning? In sensitive cases such as those involving disabilities, you will need to be clear that the dismissal is based on the alleged misconduct, rather than purely the disability. Of course, contextually the disability may play a part, but the more distanced you can place yourselves from it, the less likely you will be considered as acting discriminatorily.
4. Medical reports
Any informed decision you make will need to be based on up to date medical advice. Ensure that rather than seeking generalist occupational health reports, you tailor your referrals, so the clinician is provided with the appropriate context, to create an accurate report.
5. Be clear about the outcome
The decision should be unambiguous and clearly reference the findings on the allegations raised in the disciplinary. Each allegation should contain an outcome confirming why the disciplinary chair has reached the decision they have.
6. What to do now?
From our experience, issues surrounding mental health in employment law are highly complex and early consideration of all the above issues are critical to prevent lengthy and costly disputes.
If you are concerned that your employment practices surrounding annual leave, disciplinary sanctions and mental health issues are not up to date or fit for purpose, please contact BPE’s employment team to discuss this further.
A copy of the judgment is available here.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.