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A local lawyer is urging employers to be sensitive in how they handle sick leave, after an ex-Voisins employee was handed £2,500 in discrimination compensation because he was pressured into attending a 'welfare' meeting - which was actually to discuss a pay-off - while off sick.
BCR Law English Solicitor Nour Belal had this to say...
"This was a case about discrimination on the grounds of disability. In this case, the claimant alleged unfair treatment during his employment with Voisins Department Store Limited and specifically during a meeting which took place whilst he was “signed-off”.
The Discrimination (Jersey) Law 2013 protects individuals in Jersey against discrimination on the grounds of disability as a 'protected characteristic'. The Claimant had a disability which in turn gave rise to certain mental health difficulties. The claimant had been signed off from work on several occasions on account of his disability.
Pictured: The case involved a former Voisins employee.
The claimant brought a claim for unfair dismissal, wrongful dismissal, indirect discrimination and direct discrimination based on the protected characteristic of his disability. The claims for unfair dismissal and wrongful dismissal failed on account of his resignation being prompted by advice from a medical professional and not a result of his employer’s actions.
The claimant’s claim for indirect discrimination also failed as it was accepted that reasonable adjustments were in place to support the claimant within his role. The claimant succeeded, however, in his claim for direct discrimination which was brought against Gerald Voisin, his direct manager and the Managing Director of Voisins Department Store.
The claimant had previously explained to his employer that as a result of his disability (including his mental health issues) he found it very difficult to attend meetings. The claimant had requested that reasonable adjustments be made in respect of meetings - such as being allowed to have someone to accompany him, being given proper notice of meetings, being provided with agendas and having the opportunity to agree to notes being taken at any meeting.
There is a legal requirement for employers to make reasonable adjustments to accommodate the needs of employees with disabilities to make sure they are not at a substantial disadvantage in comparison with persons who are not disabled. The Tribunal in this case agreed that the employer did facilitate the needs of the Claimant whilst he was attending work.
Pictured: BCR Law English Solicitor Nour Belal.
The key issue arose when the respondent asked the claimant to come in for a meeting on 17 February 2020 whilst the claimant was signed off from work on account of his disability. This request was made further to the claimant already declining to come into work for a meeting on a previous occasion. The respondent asked the claimant to come in for a meeting under the guise of discussing the claimant’s “welfare”.
However, when the claimant did arrive to the meeting, it transpired that the meeting was more about his capability to perform his role and the Respondent raised issues around the needs of the business, pay-off and potential termination of the claimant’s employment.
The tribunal concluded that the meeting was more adverse than beneficial to the employee and ultimately held that the conduct of the respondent during the meeting resulted in the claimant being treated unfavourably.
In particular, the Tribunal found that the meeting was not “a proportionate means of achieving a legitimate aim”. The defence can be claimed by an employer in response to a claim of discrimination. The claimant had previously declined to attend a meeting and had been signed off as medically unfit to attend work.
It was therefore not appropriate to meet with the claimant, particularly where the intention was to discuss a “pay-off” which would necessitate the termination of the claimant’s employment and especially when the respondent claimed the meeting was a welfare meeting.
This case highlights the importance for employers not to attempt to circumvent proper processes and procedures when dealing with employees who have been signed off from work especially, those who are struggling with mental health disabilities, any other form of disability or illness.
It further highlights that employers should not lure employees to attend a meeting under false pretences.
Mental health disabilities and stress related illnesses are now the principal cause of absence from work. The Tribunal in this case found that the employer was unreasonable in ignoring the medical advice given and insisting and or pressurising that the employee attend the Meeting.
Pictured: Ms Belal said the case highlighted the importance for employers not to attempt to circumvent proper processes and procedures when dealing with employees who have been signed off from work.
HR managers, employers and business owners must take care to approach employees on sick leave with sensitivity. Employers could face a claim for unfair or wrongful dismissal if due care is not taken to ensure that any contact made with employees is reasonable and for a proper cause.
If an employer is considering having a meeting with an employee in respect of their employment whilst that employee is unable to attend work, the best thing an employer could do is wait until the employee is medically fit to attend. However if this is not possible and or practical, legal advice should be obtained.
Employers should also ask for medical evidence, have proper policies in place, follow a fair capability or sickness procedure and make sure that employees are treated fairly when any considerations are made in respect of potentially terminating their employment."
