FAQ - Disciplinary & capability procedure: employee goes off sick with stress

Out-Law Guide | 03 Aug 2020 | 12:00 am |

Jon Coley tackles the issue of whether procedures should be halted in these circumstances.
Pinsent Masons Video

We're sorry, this video is not available in your location.

  • Transcript

    NEWS – 24 March 2017

    Judicial assessment – further experience

    It was back in early October last year that we saw a new procedure introduced in to employment litigation, namely judicial assessment, and since then we have been reporting our experience up and down the country at various employment tribunals. You will recall that this is the procedure whereby at the preliminary hearing stage of the litigation, provided both parties agree, the judge will give his or her assessment of the relative strengths and weaknesses of a case, the idea being that this is likely to promote a quicker resolution of the dispute. Importantly, if it happens, it means that particular judge will be barred from a final hearing of that particular case – so that is one of the tactical considerations to bear in mind. I recently had the opportunity of catching up with Laura Starrett from our Manchester office to discuss some of those cases which we have handled across our UK offices which have gone to judicial assessment. I started by asking Laura how effective judicial assessment has been:

    Laura Starrett: “What we are finding is that it is largely dependent on the quality of the judge and also their willingness to provide a definitive view and I think it is worth pointing out that when judicial assessment is taking place at a preliminary hearing it is worth bearing in mind that the disclosure of all the relevant documents hasn't yet taken place. So the judge is forming a view on the ET1, the ET3 and any oral submissions that are made by both parties. So by way of example if you have a case that is going to turn on the witness evidence and there is a whole host of disputed facts it will be difficult for the judge to give a definitive view. However, what we are finding is that it is still helpful to go ahead with judicial assessment particularly where you are dealing with cases involving an unrepresented claimant and you are trying to manage their expectations. So if you have got a judge who is quite willing to identify the weaknesses in their claims and communicate it to the claimant that claimant is more likely to listen really to the judge because they are in an independent objective capacity and they are more likely to listen to that than the views of the lawyer acting on behalf of the respondent. Quite recently we had an unfair dismissal case where both parties had opted for judicial assessment and at the hearing itself the judge took the time to explain the legal test for unfair dismissal to the claimant and really emphasised that it is more than just establishing a general sense of unfairness, so really trying to manage their expectations as to what they would need to establish at a final hearing and that judge in the same hearing also commented on the respondent's conduct in quite favourable terms, so had mentioned that there had been a fair process, that they had weighed up conflicting evidence that was available to them at the time of the investigation and that the decision to dismiss may fall within the band of reasonable responses which would ultimately make that dismissal fair. So whilst the judge wasn't as definitive as we would have hoped for we were able to use a lot of the comments made by the judge in terms of the weaknesses of the claimant's claim in a costs warning letter at a later date and, again, that just feeds into managing the claimant's expectations and also utilising what the judge has said because that really falls home with the claimant because he is in that independent capacity. We also had a discrimination case quite recently and in that case the claimant hadn't really identified sufficient detail in the ET1 to establish that there was an arguable case for discrimination and we made those comments at the hearing itself and the judge agreed with our comments and, again, we were able to take those comments and put them into a costs warning letter in order to move the matter forward potentially to a commercial settlement. Now what I would say generally in terms of judicial assessment is in some cases it is worth doing but there are cases where it simply isn't worth pursuing it and I have got a useful example in that regard. So we had a preliminary hearing in the Watford employment tribunal and in this case the claimant had unrealistic expectations as to what they would achieve at a final hearing in terms of a financial award and the judge in that case took an immediate disliking to the claimant and that worsened throughout the preliminary hearing so much so that that judge then decided to list a preliminary hearing of her own volition to deal with the strike out of all the claimant's claims. Now in that case we didn't feel it was worth pursuing judicial assessment because we had already got a very clear view on how the judge had sized up the case and therefore we didn't really see that there would be much point in pursuing judicial assessment and, more importantly than that, that judge would then have been barred from dealing with potentially the preliminary hearing to deal with strike out of the claims and also to deal with any final hearing. So it was really to our benefit in that particular case not to pursue judicial assessment. So in summary I think it is really important to look at the case in hand as to whether it is appropriate for judicial assessment and then if it is a case that is appropriate then use it in a way to strategically manage the case potentially towards settlement or just dealing with a claimant who is unrepresented, which has its own challenges in itself."

    Job applicants with spurious intentions: what should employers do?

    You may have seen the article featured in Personnel Today this week about job applicants with spurious intentions. The article is based around Gerald Freedman, a self-proclaimed business consultant and a lay committee member at the Law Society of Scotland, who has been applying for roles with hundreds of charities, colleges and universities claiming to have various serious disabilities requiring numerous reasonable adjustments in order to attend interview. He has been in the news again because The Times reported having seen a number of his threatening letters.  His approach is to send a lengthy letter to potential employers spelling out their obligations under the Equality Act 2010 and threatening to launch legal action or “go public” if organisations do not offer him an interview and accommodate his requests. The article goes on to mention the useful ECJ ruling last year in the German case called Kratzer. In that case the ECJ ruled that a job applicant who was applying for jobs purely with aim of seeking compensation is not protected by the Equal Treatment Directive and so not entitled to compensation. In the UK we have case law saying much the same thing - an EAT case called Keane dating back to 2009. That case remains good law and in light of it Fiona MacLellan has this advice for HR:

    Fiona MacLellan: “We have been seeing more recently compensation seeking claimants and what we are describing here is a claimant that applies for a role but doesn't actually want the role but their application is made with a view of then building a claim against the employer and in our experience it tends to be discrimination claims and they will then put forward the argument that they did not get the opportunity to interview because of their age or their sex or their race. There has been recent case law in this area, for example the Keane case which was an older woman, an accountant around the age of 51 and quite experienced, and she applied for a role which was advertised for a junior accountant. She was unsuccessful in her application and she didn't get to an interview and shortly after she raised an employment tribunal claim on age discrimination and later also sex discrimination and she didn't just do this to the one employer she did it to various employers. These people tend to be people who are a bit like a dog with a bone, someone who holds onto something and keeps going with it shall we say, and they tend to follow through and they can be quite intimidating to deal with and therefore it is sensible if anybody in HR finds themselves experiencing this situation where they are faced with a potential applicant who phones up saying I think I was rejected for discriminatory reasons to seek advice from employment lawyers because we do have experience of dealing with these people and with the case law that is out there now it shows that actually if you can show that these people are purely applying to build a claim and were not applying for the role then we can show that they have not suffered any detriment because they never wanted the role and therefore they do not have a discrimination claim."

    FAQ: Disciplinary/capability procedure – employee goes off sick with stress

    Finally to our FAQ slot. A situation you must have come across many times is where you are taking someone through a disciplinary procedure, or perhaps a capability procedure, and the employee is clearly not happy and has perhaps even raised a grievance against the manager. The next thing that happens is they go off sick with stress, claiming that it is the procedure itself which is the problem and which is adversely affecting their health. You suspect it’s a tactic but you can’t prove it. Understandably the manager handling that process is going to be wary - they have a procedure to get through, possibly more than one procedure if a grievance has also been raised, but at the same time they don’t want to be blamed for making matters worse. So the question is, given that situation, should you halt the process? Jon Coley gives his view:

    Jon Coley: “Our advice, very often, is not to do that but is to actually not allow the employee in appropriate circumstances where they are "playing the game" to feel that they have got the upper hand in that process. It is easier for an employer to get it back on track, often early referral to occupational health can assist with that. One can see how the letter to occupational health can be phrased in a way that says look the individual is absent from the workplace with stress, we are sure that one of the contributory factors to his stress may well be the fact that he has got an outstanding disciplinary or performance management process and therefore in those circumstances should the individual not be invited to attend the meeting and get that process through so that it can help their recovery from the stress that they are allegedly suffering from. If the letter is phrased in that way it is difficult to see, except in exceptional circumstances, how occupational health could determine the individual would not be well enough to attend that disciplinary hearing or that performance management process."

    For now, from me, that's the news. Good bye.