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regular comment for managers on workplace health issues

Managing Return to Work – Northern Ireland 2005

Joan Lewis,  MCIPD,MA (Law & Employment Relations)

Legal considerations

  • Employment Rights Act 1996
  • Capability a potentially fair reason for dismissal
  • Fair procedures needed
  • Impact of new dispute resolution procedures

Practical issues relating to dispute resolution

  • Employee objects to having health issues treated as a problem
  • Standard and modified procedures
  • Any proposed sanction is appealable
  • Employee has the right to raise a grievance

Disability issues

  • Risk of overlap between disability discrimination and dealing with ill-health
  • Justification and the amended Disability Discrimination Act 1995
  • Reasonable adjustments
  • Paul v National Probation Service

A safe place for the returner

  • HASWA effect
  • Dorset Hospital case
  • Risk assessment for existing job
  • Employee employed to do a job!
  • Glitz v Watford Electric Co

The Lynock approach

  • Nature of  illness
  • Likelihood of recurrence/other illness
  • Length of/spaces between absences
  • Need for job to be done
  • Others carrying the load
  • Even-handed policy
  • Clarification of issues to employee

Lynock applied

  • Review & compare absence records
  • Check HR contacts
  • ? medical report re special needs?
  • Meeting or home visit
  • Consider domestic factors
  • ? ergonomic assessment?
  • Employee participation in risk assessment
  • The nature of the illness
  • Freer Bouskell and claustrophobia
  • Recurrence & reliance on key person
  • Taylorplan v McInally
  • Length of absences & pattern/consistency
  • Does employee return or leave
  • Variation of terms
  • Impact on others & involve team in return-to-work assessment
  • Deal with regular workers resentment
  • The ultimate choice
  • East Daubney v Lindsay – consult
  • Bliss v S E Thames RHA
  • No co-operation = end of the line

 The OH burden

The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; if he has fallen below the standard – he is negligent.

Stokes v GKN (Bolts and Nuts) Ltd [1968]1WLR 1776

Filed under: Uncategorized

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