Recent case law, which says sick note Steve must have holiday pay whilst malingering at home, has not amused small businesses.
Most, according to a survey, are worried about hiring staff with health problems because of two European cases: one of which says holiday pay must be paid even to those who are on long term sick leave, and another that says staff who are ill whilst on leave can take their leave again at a later date.
A survey for the Federation of Small Businesses, revealed that 59% of small businesses would either be more cautious about taking on staff with health problems or more reluctant to take on anyone at all, because of the rulings. Another 19 % said they would consider removing their company sick policies and replacing them with the much stingier statutory sick pay and 17 % said they would consider sacking someone on long-term sick leave.
Of course, refusing to hire anyone again because of this is daft, and sacking people for being ill is a bad idea too. The latest figures from the Employment Tribunal Service (ETS) reveal there was a 13% increase in disability discrimination cases last year to 6578 – with an average award of £27,235 for successful claimants.
It is pretty common to put those with poor attendance records into redundancy pools or to sack them for capability reasons. But the Tribunals are inundated with cases where employers have bungled this particularly where illness is an issue.
There were hefty increases in the number of unfair dismissal and breach of contract claims up 29 and 31% to 52,711 and 32,829 respectively, according to the ETS figures. Last year also saw a 153% increase to 11,371 in claims for failure to consult over redundancies properly. Not all of these claims have sick leave in them as an issue, but some certainly do.
The new Equality Act, prevents companies from asking new recruits about their illnesses until after they have made a job offer. This means they will no longer be able to quietly discriminate against ill or disabled applicants and increases the likelihood that they will employ people with health problems.
It is best to view this as a good thing for both sides. Offering flexible working or home working to long-term sick or disabled staff can help them stay productive and help valuable skills to be retained in the workforce.
Peta Fluendy is employment law consultant at Sutton based De Brett and Co
http://www.debrettlaw.co.uk/ employmentlawconsultant@gmx.com
Tags: employment law, Managing staff, Peta Fluendy, sick leave
This post has been commented once
1
June 18th, 2010 at 1:29 pmEnterprise News in Brief « FMWF says:
[...] >> You can also read advice from FMWF blogger and leading employment lawyer Peta Fluendy in one of her recent posts – Tribunals flooded with cases involving health problems [...]