‘Reasonable adjustments’ can apply post employment
A probation officer suffering from depression decided to hand in her notice on 20 December 2006. A Chief Inspector responded to the resignation by asking the probation officer to rethink her position. She then wrote a second letter of resignation which was accepted and her employment terminated on 17 January 2007.
On 26 January, the probation officer was diagnosed with depression. Shortly afterwards, she asked to be reinstated claiming her decision to leave was brought on by her depression. The police force said that if she wished to return, she would need to submit a fresh application as it was impossible to simply allow her return. The probation officer then brought a claim for disability discrimination.
The EAT decided that the police force had failed to make reasonable adjustments by not permitting her return. It noted that a chief inspector initially asked the probation officer to reconsider her position and the EAT questioned what had changed between this moment in time and when she asked to be reinstated. It concluded that her reinstatement would have been a ‘reasonable adjustment’ and therefore, the police force had breached the Disability Discrimination Act 1995 (DDA 1995).
This is a surprising decision by the EAT as it suggests that employers may be affected by the DDA 1995 and the provision to make reasonable adjustment after employment has terminated, at the request of the employee, and after it has given the employee time to consider their position. It is expected that should a similar situation arise in the future, the Tribunal may consider factors such as the time between resigning and making a request to be reinstated and whether or not a replacement has been recruited.
Snow reaps havoc yet again
It’s not yet quite that time of year but the snow appears to have arrived early. With temperatures plummeting and snowfall reaching levels previously recorded back in the 1970’s, businesses are once again feeling the effects of the snow. Transport connections have already broken down and many employees are unable to get to work leaving employers with a skeleton staff. Many employees across the country will be genuinely stuck at home but others may just be using the snow as an excuse to avoid work.
Generally, if a workplace is open for business, employers do not have to pay employees who do not attend work due to travel difficulties or bad weather. However, employers may wish to consider each situation independently. If an employee has tried to get to work but is not physically able to reach their workplace, they may wish to treat this situation differently to one where the employee has made no attempt to get to work. Employers are advised to review their contracts of employment when querying whether to withhold pay.
Be prepared:
Employers should email their staff to remind them of the consequences of not attending work should bad weather strike. Employers may consider asking employees to make the time up if they fail to attend the workplace. Employers may also like to confirm that if sick days are taken during snowy periods, sickness absence management procedures will be followed involving a return to work interview and potentially, disciplinary action could follow.
For those employees living further away, query whether they could work from home.
Employers may be considering asking their employees to take annual leave. However, employers cannot force employees to use their holiday without consent unless the contract of employment specifically allows it.
If employers have to close their business due to adverse weather conditions, employees will be entitled to receive full pay unless the contract contains a temporary lay off clause.
