Reward insight
had a short period off work but felt unsafe in parts of the building and considered the school was not taking pupil aggression seriously. The claimant went off sick in December 2011 with a diagnosis of stress at work. The school arranged cognitive behavioural therapy and in March 2012 she was referred to occupational health (OH). An OH report in April 2012 said that considerable work was needed to resolve the claimant’s anxieties and the belief that she was not adequately supported by the school. Another OH report in August noted that treatment was not improving her condition and she remained unfit for work. A meeting was arranged in November to discuss the claimant’s absence but she did not wish to attend. The school asked for written information but the claimant’s reply to most questions was that OH should contact her general practitioner (GP). The school contacted her GP but the reply was to the effect that the school should speak to the claimant. A formal medical incapacity process was started and a hearing took place in January 2013. There was no evidence before the panel of the effect of the absence on the school itself but the claimant told the panel that she had been referred to a therapist for treatment which had made a big difference, although her therapist could not confirm a return until her treatment had finished. The panel decided the claimant should be dismissed because it was not likely she would return to work in the near future. The claimant appealed against this decision. The appeal hearing took place in April 2013 and the claimant said she was now fit to return full time and produced medical evidence to this effect. A fit note from her GP, dated the previous day, said she was now fit for work; and a letter from her psychologist written in February 2013 expected the claimant to return to her pre- trauma functioning after finishing treatment. The appeal was dismissed on the grounds that there was inconsistent information, there was concern that the claimant would relapse and there was no evidence to show the claimant had completed her sessions and had recovered. The claimant made a number of claims including discrimination arising from a disability and unfair dismissal. The employment tribunal (ET) decided that her dismissal was discrimination arising from her disability and the school could
not objectively justify it with their aims of efficient running, reduction of costs and providing a good standard of teaching. The dismissal was disproportionate in meeting these aims because there was no evidence about the impact her continuing absence was having on the running of the school and, because of this, it was reasonable to wait a little longer to see whether she could return to work, especially in light of the evidence available at the appeal. A less discriminatory way of dealing with the inconsistent medical evidence produced at the appeal was to obtain a further OH report before making a final decision. The school appealed and the employment appeal tribunal found in favour of the school. This decision was further appealed to the Court of Appeal (CA). ...the employee was aware when he volunteered for the scheme that his loan would have to be repaid The CA gave guidance that there may be a time when the “give me a little more time and I will recover” argument will not make it unreasonable for an employer to dismiss because they are entitled to some finality when there is no certainty about when the employee will return. The CA also decided that the ET was not perverse to decide it was disproportionate for the school to dismiss at this stage and not wait to receive a further OH examination. The CA judged that the ET was correct to require evidence of the impact of the employee’s absence because the question at the appeal was whether the school had managed to cope with the absence of the employee so it could be expected to put up with absence for a further period to receive more medical evidence. Ali v Petroleum Company of Trinidad and Tobago The Privy Council has examined a case concerning the question of when repayment of a loan agreement can be waived. The claimant was employed from 1978 and in 1989 he received a company
scholarship to study for a degree at Louisiana State University. The fees were paid for by the company and they also paid him a monthly allowance to help meet his financial commitments in Trinidad. The allowance was made as a repayable loan which, in the letter offering the loan, stated repayment would be waived if the claimant returned and worked for the company for a period of five years. The claimant returned to the company in May 1994. He had hoped he would receive promotion as a result of gaining the degree but didn’t and he wrote to his manager revealing he felt let down by the company and sought reassurance at an impending restructure. In October 1995, further restructuring led to a launch of a voluntary redundancy scheme. The claimant was sent a letter informing him he was in the target population the company was seeking to reduce and he was invited to apply to the voluntary redundancy scheme. He was also sent an information booklet and told to consider this carefully, consult with his manager and sign a letter if he wished to be included in the scheme. The claimant signed the letter and was made redundant. The employer deducted over $200,000 from his redundancy pay to cover the loan payment. The Trinidad and Tobago courts found that the employee was aware when he volunteered for the scheme that his loan would have to be repaid. They judged that by voluntarily applying and accepting redundancy he had rejected the chance to continue to work for five years and was aware of the impact of this when he did so. Two issues of law were brought to the Privy Council with the important issue being whether an express term can be subject to a ‘limiting’ implied term i.e. whether there was an implied term restricting the company from demanding payment. The Privy Council decided that a term could be implied in to the loan agreement which had the effect that if the employer prevented the employee from fulfilling the waiver terms, i.e. they prevented him from working for five years, then the loan would not have to be repaid. However, in this case, because the employee had volunteered for redundancy the employer had not prevented him from working the required five years and was, therefore, permitted to deduct the amount of the loan from the employee’s redundancy pay. n
35
Issue 30 | May 2017
| Professional in Payroll, Pensions and Reward |
Made with FlippingBook - Online catalogs