Employment Law E-Bulletin Issue 35

• Salmon v Castlebeck Care UKEAT/0304/14/DM – a successful appeal against dismissal automatically revives a contract
• Saad v University Hospital Southampton UKEAT/0184/14/DM – Anxiety may not always constitute a disability
• Increases to statutory maternity, paternity, adoption and sick pay announced.
• Department of Work and Pensions updates guidance on Fit for Work Service

Salmon v Castlebeck Care UKEAT/0304/14/DM – a successful appeal against dismissal automatically revives a contract

The Claimant in this case, Mrs Salmon, was dismissed for gross misconduct by her employer, Castlebeck Care (Teesdale) Ltd (Castlebeck). The following week Castlebeck transferred to Danshell Healthcare Ltd (Danshell).

Mrs Salmon had appealed against her dismissal, and after the transfer had occurred, the transferring HR director heard her appeal and made a decision that the dismissal was unsafe. However, no decision was made to re-instate her or confirm that her original contract has revived as a result.

Mrs Salmon therefore brought an unfair dismissal claim against both Castlebeck and Danshell. The ET upheld the claim against Castlebeck but dismissed the claim against Danshell, concluding that it had never been her employer.

Mrs Salmon appealed to the EAT arguing that her successful dismissal appeal should have revived her contract immediately meaning that her employment would have automatically transferred to Danshell when the business transfer took place.

The EAT allowed the appeal and Mrs Salmon was able to pursue her claim against Danshell. In this case the appeal panel was not restricted in the exercise of its powers, and therefore the inference to be drawn was that Mrs Salmon succeeded on her appeal. It held that once an appeal against a dismissal had been upheld, the contract was automatically revived. There was no need to communicate that decision.

Employers should note that this decision is subject to there being a contractual term or provision relating to the hearing of appeals which could prevent it. These should always therefore be considered

Saad v University Hospital Southampton UKEAT/0184/14/DM – Anxiety may not always constitute a disability

The claimant in this case, Mr Saad, brought a claim in the ET for disability discrimination upon the non-renewal of his fixed term contract. The ET accepted that Mr Saad suffered from a depressive and general anxiety disorder, but it concluded that he was not disabled for the purposes of discrimination legislation because, although he had a mental impairment, this did not have a substantial, adverse, nor long term effect on his ability to carry out day to day activities. Mr Saad appealed the decision arguing that the ET had not considered the affect the illness had upon his interaction with colleagues and ability to concentrate.

In dismissing the appeal, the EAT stated that the ET was correct in its assessment that Mr Saad’s condition did not have a substantial and long term adverse effect on his ability to carry out normal day to day activities. It had considered his ability to communicate with colleagues, access the work-place and concentrate.

Employers should note that this does not mean that depression and anxiety may not amount to a disability in other cases. Each case will depend on the specific circumstances of the employee. When managing sickness absence, including mental illness, employers should seek medical evidence and legal advice if there is any uncertainty as to whether there may be disability.

Increases to statutory maternity, paternity, adoption and sick pay announced.

 The Welfare Benefits Up-rating Order 2015 provides for the up-rating of certain social security benefits and payment which are to be increased by 1% from April 2015.

 In particular it will increase the following:

• statutory maternity, adoption, paternity, additional paternity and shared parental pay up to £139.58 per week from 5 April 2015; and
• statutory sick pay up to £88.45 per week from 6 April 2015

Department of Work and Pensions updates guidance on Fit for Work Service

The DWP has updated its guidance for employers and line managers on fit notes to include details of the new Fit for Work (FFW) service.

The FFW service is a new service which has been created following the recommendations of Dame Carol Black, who was the government’s national Director for Health and Work until 2011. It provides free health and work advice through its website and telephone advice service, as well as free occupational health assessments and return to work plans to assist employees, who have been absent on sick leave for four or more weeks, to return to work. GPs and employers will be able to make referrals to FFW and, although it will not be mandatory, the guidance suggests that referrals will be the default position.

The FFW service is being introduced on a phased basis and is due to be complete by May this year.

The updated guidance includes a case study in which an employer makes changes to an employee’s role based on FFW assessment. ‘Getting the most out of the fit note: guidance for employers and line managers’ can be downloaded from the www.gov.uk website.