Employment Law E-Bulletin Issue 38

Easton v B&Q plc [2015] EWHC 880 (QB) – Was an employer liable for psychiatric illness caused by occupational stress?

The employee was a successful manager of a store who became ill with stress. He alleged that this was due to the negligence and/or breach of statutory duty on the part of B&Q.

After 5 months away from work with depression, the employee returned to work at a different, less busy store. However, he was later recertified as unfit for work due to depression.

The key question considered was whether this injury (i.e. the second period of absence) was reasonably foreseeable. The foreseeability threshold in stress claims is high as an employer is entitled to accept that an employee is fit to return to work where they have returned to work after a period of sickness without any medical qualification (as was the case here). As the employee returned to work after the first absence (albeit whilst still on medication) and had no history of psychiatric history before the first period of absence, it was decided that the employer could not have reasonably foreseen the employee’s relapse.  As such, the employer was not liable for the employee’s psychiatric illness.

This case shows that where an employee returns to work after a period of sickness absence due to psychiatric stress and is certified as fit to work (even though they are still on medication) the employer may be entitled to rely on this.  An employer would, however, be well advised to take steps to minimise stress to this person or, at least, to ensure adequate arrangements to support that person on their return. 

Hart v St Mary’s School (Colchester) Ltd UKEAT/0305/14 – Changing working hours: can schools rely on contractual clauses?

Employment contracts can only generally be changed by mutual agreement. However, employers will often seek to reserve the right in the contract to vary the terms unilaterally i.e. without the consent of their employees.

In this case the Employment Appeal Tribunal (EAT) considered whether a variation clause was sufficient to allow an employer to change working hours. 

The employee worked for 3 days a week. The employer decided to change its timetable so that core subjects were taught in the morning. It commenced a consultation process with the employee to change her hours, so that she would work the same number of hours, but over 5 days rather than 3. The parties were unable to reach agreement. The employee needed to avoid working Fridays due to family commitments. The employer insisted on the change to working hours and relied upon a clause in her contract which stated that she should work all school hours as may be necessary for the proper performance of her duties. 

The employee resigned and claimed constructive dismissal. 

Initially, the ET rejected her claim. The employee appealed, arguing that a contractual right to unilaterally increase a part-time worker's hours conflicted with the nature of a part-time contract.

The EAT agreed with the employee and considered another clause in the employee’s contract which stated that in respect of a part-time contract the contract ‘may be subject to variation’ subject to the employer’s requirements.

The EAT held that the wording "may be subject to variation" was not sufficiently clear and it could be that this was intended to apply to a request from the employee to vary her hours, confirming that the school was only obliged to agree a variation subject to the requirements of its timetable. 

Employers should be aware that any attempt to reserve the right to unilateral vary contracts of employment will be carefully scrutinised by the courts.  First, the employer must not use that discretion arbitrarily otherwise it may breach the implied duty of trrst and confidence.  Following this case, careful consideration should be given where the proposed variation would affect part-time employees differently to full-time employees. Whilst a consultation process is required, it may not be sufficient if the variation wording in the contract is imprecise.

Shared Parental Leave – Be prepared

A big change occurred on 5 April 2015 in respect of parents’ rights to take leave after the birth or adoption of their child. The Shared Parental Leave Regulations 2014 (the Regulations) create an opportunity for parents to be more flexible with their leave, but the complexities of the legislation may cause a headache for employers.

Employers are advised to make sure their handbooks or policies are up to date and include a policy for Shared Parental Leave because any employee who has a baby or adopts a child may be entitled to take this new form of leave. There are a lot of procedural requirements in the Regulations and we would advise that employers prepare for this now, before a request for Shared Parental Leave is made. 

For any further information on this or any other Employment matter, please contact Keith Land on 0191 226 4892 or keith.land@sintons.co.uk