No surprise as it’s been on the way for a while but the Department for Work and Pensions has decreed that GPs’ sick notes are to be replaced by ‘fit notes’ from 6 April 2010.
The DWP’s formal response to consultation says the new format notes will contain two options: either ‘unfit for work’ or ‘may be fit for work taking account of the following advice’. This seems a bit of a step back from saying someone who has been off sick is fit to work and will likely mean more discussion between employer and employee as to whether the latter is fit enough to return to some form of work, and whether the employer will be able to make any necessary adjustments. It could well make life more onerous for employers.
Eversheds partner Simon Rice-Birchall said: “Whether the new approach succeeds will depend, to a large extent, on how well GPs adapt to using the form. The DWP says it will be issuing guidance for doctors on the new medical statement and there will also be specific guidance for employers, although no publication date has been given.
“Employers will need to look carefully at how they manage sickness absence. Those with carefully considered return-to-work programmes will be better placed to benefit from the new regime. In contrast, employers who fail to engage with the new approach could find themselves at an increased risk of disability discrimination claims. This is because a new style report might highlight changes that an employer could make to the employee’s duties or workplace that would help them return to work sooner.”
Beachcroft partner Rachel Dineley added: “In its response the government has recognised that it is not the doctor, but the employer, in consultation with the employee, who is best placed to make the decision as to whether they can accommodate any changes to facilitate a return to work. It encourages employers to initiate discussions with their employees. If an employer is not able to facilitate a change or adjustment the GP’s advice on the statement will be evidence that an individual has a condition which prevents them carrying out their current role. Employers who work with occupational health practitioners may disagree with the GP’s advice. If the employee’s condition constitutes a disability, under the Disability Discrimination Act – to be replaced with provisions in the Equality Bill, currently going through Parliament – the employer will have a duty to make reasonable adjustments in any event.”
Court of Appeal issues major TUPE ruling
The Court of Appeal has given its decision in Alemo-Herron and others v Parkwood Leisure Limited. This overturned an earlier Employment Appeal tribunal (EAT) decision in favour of the employees, and restored the Employment Tribunal’s original decision in favour of the employer. The ruling can be seen as applying common sense to cases where employers have inherited staff under transfer of employment terms and find themselves bound by national pay agreements in which they play no role.
The case involved 23 claimants, represented by Unison, who had been employed by the London Borough of Lewisham’s Leisure Department until 2002, when the department was outsourced to private company CCL and their employment contracts were protected under TUPE. The employees switched employers again after a further TUPE transfer in 2004 from CCL to Parkwood Leisure. Because the employees’ employment contracts provided that their terms and conditions were in accordance with collective agreements negotiated by the National Joint Council for Local Government Services, the question was whether Parkwood, was bound by pay increases agreed between the NJC and the trade unions after Parkwood had become the employer.
Charles Newman, TUPE expert at Beachcroft LLP, said: “This case will come as a welcome relief for private sector employers who take on outsourced contracts. They will not be bound by future pay increases negotiated after a TUPE transfer by the former public sector employer rather than them.
“TUPE is a particularly complex area for employers, and the EAT decision in this case had highlighted just how some TUPE decisions can lead to unfortunate results in practice from a commercial point of view. The EAT decision had decided that if a private sector employer inherited a workforce under TUPE that had had the benefit of trade union negotiated pay rises under a national collective agreement, the new employer could still be bound in the future by future negotiations between the old employer and the trade unions – even though the new employer would not be a party to those negotiations, and would have no input into them whatsoever.”
Contingency fees ceiling to be raised
The Damages Based Agreements Regulations 2010 have now been finalised and come into force on 6th April 2010 reported Daniel Barnett’s employment law newsletter. The cap on contingency fees, provisionally set at 25% when the consultation paper went out in December, has been raised to 35%.
Contingency fees are based on a percentage of money recovered and are not to be confused with conditional fees commonly known as ‘no-win, no-fee’, where the representative charges a base-fee plus an uplift if they win the case.
Stir-fryer stirs it up in Evesham
A stir-fryer’s claim for compensation for alleged unfair dismissal failed at the Birmingham employment tribunal last week – and cast doubts over what constitutes a rude one-fingered gesture. Mohammed Barham lost his compensation claim for unfair dismissal at Birmingham Employment Tribunal against Kanes Foods Ltd. He alleged there was a conspiracy against him. But manager Michael Sutton denied the conspiracy allegation and said Barham had been dismissed for misconduct following several incidents. These included allegedly refusing to clear debris from the floor after Barham claimed it was not his job. He was also accused of being aggressive. He was alleged to have dropped a crate and was later accused of making a one finger sign to a manager which the management regarded as rude. After he was given a final warning about his behaviour, he was eventually dismissed. Barham denied he made a finger sign and said he used his thumb to indicate to the manager that everything was fine. Well that’s one for the video referee I would say.
Ralph Savage
