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Posted By Mike Miller
Hi everyone,
I am seeking some opinions on a recent scenario. I will not disclose any names or places at this time. An employee is taken on in a teaching environment as an assistant. The person (male) has a disability due to a previous manual handling accident, (now history) the disability was disclosed and fully understood and the employee worked in the post for one week.
Due to another unfortunate but confirmed accident at home (slipping on a tiled floor) the employee was forced to report sick and was off all the following week. On the Friday he was telephoned at home and instructed to report to the HR department the following Tuesday because they said that they had discovered a discrepancy on his application form.
When he turned up on the day he was asked if he could return to work the next week. He said that this was not possible as the fall had aggravated his spinal injury and had been instructed by his GP to take complete rest lying down. He was then subsequently sacked on the spot because they said that his disability had been overlooked by the 'busy HR department' and he would not be capable of performing the tasks of the job.
There was in fact no occupational work assessment done or risk assessments prior to him taking up his post.
The questions are many but was it legal? Was this disability discrimination?
Was this an organisation making a very careless mistake and clumsily trying to rectify it by offering one month salary as a sweetener?
Your comments would be useful and I thank you in anticipation.
Mike
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Posted By Heather Aston
Mike
You might get more response on this one in an HR forum or a legal one - however I'll have a go.
As I read the DDA, it is unlawful to sack a disabled employee if the employer has not first considered whether any reasonable adjustment can be made to their job. This might for example include offering them a different role if one were available or making physical adjustments to a workplace.
Your description of the individual being "sacked on the spot" tends to indicate that no such attempt was made. If this is so then the individual concerned may seek redress through an industrial tribunal - forms available at the Job Centre, advice at CAB, limit in which to bring action 3 months.
Note that there are exemptions from some of the provisions of the DDA for employers with less than 20 employees - was this the case here?
While there are certainly circumstances under which it is perfectly lawful to terminate the employment of a disabled employee, the onus is on the employer to do everything possible to make reasonable changes first. The excsue "we were too busy to read your application form properly" - isn't likely to impress an IT.
Heather
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Posted By Steve Cartwright
When most people start new employment it is normally subject to a probationary period. This enables the employer to see if they are suitable for the job. During this period the employer can terminate employment at any time, by claiming he/she was not suitable. When you are employed by a company you usually sign a contract to work a certain amount of hours a week. When an employee fails to fulfill their side of the contract especially during a probationary period then an employer may terminate that contract. Put yourself in the employers shoes. If the employee is taking time off work now at the start of their employment what will they be like in a few years time. I may be a sceptic but with todays claim culture I could see a potential claim their.
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Posted By Heather Aston
Steve
Agreed, but under the DDA an employer is NOT allowed to sack someone simply because they have a disability unless they can show that it was not practical for them to make reasonable adjustments to the job. "Sacking someone on the spot" does no imply they've made that effort.
Getting rid of someone because they are not up to the job is one thing, but where disability is involved it is a whole different ball game these days.
While the individual involved propbably has no case for unfair dismissal since they hadn't worked there long enough, they do have a case for disability discrimination I would think. (IANAL)
We have certainly refused to employ people on the basis of a pre-existing condition - usually back problems or WRULD. However we have only done so after a proper pre-employment assessment and would certainly have been able to justify our actions at an IT if it had ever got that far. In my experience, provided the reasons are sound and properly explained to the prospective employee, there is seldom a problem.
If an employer does not carry out these checks, they cannot just say "whoops we made a mistake" and show the person the door.....
Heather
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Posted By Kieran J Duignan
Mike, on the basis of the information you outlined, I'm very much inclined to share Heather's view that the employer may well be in breach of the DDA.
As a Fellow of the CIPD, may I suggest a line of approach that may to the best advantage of the employee involved?
Check whether the H R executive who took the action and his/her Departmental Manager are members of the CIPD (which these days they probably are) and write warning them of a claim of professional misconduct against them personally to the CIPD unless they take action to negotiate an outcome acceptable to the employee.
As a HR profesional, I think it is in the interest of the HR profession to challenge H R folk who betray their code of profesional conduct.
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Posted By Jim Mc Nally
I think in response to the actual question. The employee has not as far as I can see been discrimated against. Having declared that he had a pre-existing condition, the company employed him on that basis. The fact that outwith the work environment he has injured himself to the extent that he is unavailable for work would be the same rule which would apply to any other employee of the company. I think that the aspect of his brief employment probably allowed the company to act as it did as most companies probably have such a policy in place for probationers. However, if the company can show that the non availability of work scenario is applied across the board then my view would be that there is no discrimination here.
I welcome your views.
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Posted By Kieran J Duignan
What Steve and Jim argue may well apply as far as the Employment Rights Act 1996 is concerned.
The employer also has responsibilities to disabled job applicants and employees to show how they have considered 'reasonable adjustments' to the work environtment to accomodate a disability. From Mike's account, they signally failed to do so in this instance.
What is more, if the matter were to be tried, the potential damages which may be legitimately claimed under the DDA are much higher than under ERA.
In the real world, Mike and his mate are likely to get much speedier redress by challenging the professional conduct of the HR people involved; this doesn't preclude proceedings under the DDA but allows Mike and his mate to ask senior H R professionals to conduct a hearing in which the H R guys involved have to answer for their behaviour to the disabled employee. Harassment by a HR executive is hardly behaviour the CIPD can afford to condone with any employee, much less with one with a disability.
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Posted By Kevin Walker
Interesting subject, but what does the employment contract state? Some I have seen have reference to time off work during probationary periods,injury and inability to carry out their assigned task. If the contract makes no mention then there may be a case to be answered. The other issue is that it was okay after one week to go and see the HR Staff but couldn't start after another week? How bad is this injury?
Kevin
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Posted By Mike Miller
Hi there
I would like to start by thanking all those who gave a contribution to my query it has been most helpful.
The incompetence of the HR team in this incident takes your breath away. It is inconceivable to think that they would ask an employee with a serious injury if they would be prepared to return to work within one week when the GP had indicated that at least 3 weeks were needed. Would they ask all sick and injured employees to return to work against a doctor’s advice?
No discussion regarding reasonable adjustments no offer of redeployment and finally they asked this person how they would like to be finished, suggesting that resignation would be the best bet and even dictated the letter to a person who was under duress and still reeling from the shock.
OH! By the way there was no discrepancy on the application form, that was just a rouse!
Despicable!
Thank you all once again I will use the advice given especially from those HR’s out there.
Mike
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Posted By Kieran J Duignan
Mike
I appreciate your strong feelings and support your willingness to take a stand on this matter.
At the same time, may I also encourage you to consider that senior figures in the CIPD and other parts of the HR community are human too: they are much more likely to be positively influenced by a display the kind of professionalism you claim is absent on the part of those you criticise.
Take care - but take it!
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