Case Notes Employment Law

  Case Notes Nicholas Sheridan – Ref NS1 Background I had a meeting today with Nicolas Sheridan Tuesday the 5th of October 2013. Nicholas is in full time permanent employment with Home Securities. He made an appointment today in relation to concerns he has about his job security with his employer “Home Securities”. Nicolas talked me through his work, his duties and the hours he works. He brought to my attention his working conditions and his working environment. As a result of his environment and excessive working hours he has had to seek medical help in dealing with theses issues and subsequently has been diagnosed as suffering with depression and anxiety. He believes this can be attributed to his working conditions and the excessively long hours he works mostly by himself. He mentioned he has to put in the extra hours on a regular basis over and above what his contract states. Nicholas mentioned that due to the recent diagnosis of depression he has had to take several weeks off work to recuperate and he is concerned as his employers do not appear to be happy with the amount of time he has had off. As Nicolas has been diagnosed with depression this is classed as a disability. Under the “Employment Equality Acts [1998 – 2011]” it details in “Section (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties”

1. “An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.”

Based on this his employer will have to put Nicolas back on day shifts and reduce the amount of hours. It cannot be deemed as unreasonable to work on the day shift to accommodate his illness since there are day shifts available. Nicolas mentioned there are companies they work for where two or more security guards are required so he could be put on a shift where he is not isolated.

2. “A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.”

There should be no cost to the employer to put Nicolas on day shifts and reduce the amount of hours he works and to put him on a shift where he works with other security guards. When looking at point B above and the information that Nicolas has provided I can also refer him to the “The Organisation of working time Act ( 1997)”. In this Act working time is referred to as time spent at employers disposal carrying out duties or tasks and is limited to a maximum of forty eight hours per hours per week with some shifts in the week including mandatory breaks with defined rest periods. My client has shown me his time sheets which confirms he regularly works in excess of sixty hours per week. I noted some shifts are in excess of 12 hours each. This is in direct violation of the “The Organisation of working time Act ( 1997)” in the act is states in “Section 15.””(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

1. 4 months, or
2. 6 months—
3. (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii)where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection” From the case history I can agree that his medical condition is closely linked to his working environment. Nicolas is suffering from depression that has been confirmed by his GP. In light of this I also reviewed the “Safety, Health and Welfare at Work Act, (2005)” where this also mentions that depression falls under the umbrella of a disability This Act obligates employers to ensure they do everything reasonably practicable to ensure the safety, welfare and health of their employees. In light of this I asked Nicolas had he informed his employer that that the stress he was under was related to his work environment and the shifts he was put on and he advised me no he did not. He advised me that the certificate from the GP stated that he was unfit for work and that it did not specify that he had mental health issues. I referred him to the case of “Barber (Appellant) v. Somerset County Council (Respondents)” where in paragraph 43 in the judgment from Lord Justice Hale she detailed a number of "practical propositions applicable to cases where complaint is made of psychiatric illness brought about by stress at work”. I can link her judgment directly linked to Nicolas’s case— “(3)Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large … An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.” Based on this comment from Lord Justice Hale Nicolas needs to inform his employer of his mental health issues however he has complained about the excessive working hours. “(7)To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it” I asked Nicolas’s would his employer know he was stressed at work and he said no as he works alone on the night shift and his employer would not see him. I asked had he communicated to his line manager about being stressed and he said no but that he has complained about the excessive working hours. I referred him to the case of “Intel Incorporation (UK) Ltd v Daw, Court of Appeal [2007]” In this case the employee did not let the employer know she was stressed but she did complain about the work load and the employer made no attempts to reduce her workload as a result they were found liable and Mrs Daw was awarded A£114,764 plus interest. The employer was deemed to have failed in their duty of care to Mrs Daw. This again can be seen in the case of “Dickens v O2 PLC [2008]” Again in this case the employee complained of being overworked and her pleas were ignored and she was signed off on anxiety and depression" (recognised disabilities). This employee was awarded in excessive of A£100,000. Based on the above there is a clear duty of care owed to Nicolas from his employer. Reviewing the information provide to me and the review I have done on the “Employment Equality Acts [1998 – 2011]” which lends itself due to the circumstances to the , “Safety, Health and Welfare at Work Act, (2005)” and “The Organisation of working time Act ( 1997)” I have made the following suggestion to Nicolas (1) Firstly he needs to approaches his employer make them aware of his condition. (2) He needs to request that he be put on the day shift where there are other employees on the same shift (3) His workings hours are to be reduced in line with what was set out in his contract of employment. Failing I mentioned to him that his employer has the right to refer him to a medical practitioner nominated by the company at any stage to verify his illness. The basis of this referral has to be made clear to the employee. Case Notes Carrie Kiernan – Ref CK1 Background I had a meeting with Carrie Kiernan on Wednesday 1t of September 2013 regarding her pregnancy and her employment with Home Securities. Carrie is currently 15 weeks pregnant and she works in a physical job. Carrie is currently employed as a CCTV camera installer and repairer. I asked Carrie to give me a breakdown of her daily duties and working conditions. Carries starts work at 7.30am daily Monday to Friday and finished at 5-5.30 pm. Her day includes the installation of CCTV cameras and any hard ware associated with the equipment. To install the cameras Carrie has to use scissor lifts, cherry pickers, safety harness and ladders to access the areas where camera’s have to be installed. Carries job on occasion also involves her having to access enclosed spaces to run cables and installations accessories. Carries wants to know where she stands in regards to job security when she is no longer physically able to perform her duties detailed in her contract of employment as her pregnancy progresses. After reviewing the Maternity Protection Act (1994 to 2004) I ascertained that the employer will have to perform a rick assessment on if not already done detailing Carrie duties and work environment to ascertain what the risks are to Carrie’s Health and Safety and well being in her normal day to day duties. I advised Carrie that until I see this assessment I cannot advise her fully. I referred her to the case of “Susanne Bunning –v- GT Bunning and Sons” that is not enough for her employers to perform a generic risk assessment as in this case it was ruled the Tribunal said (at paragraph 31): "Taken as a whole, we consider the risk assessment to be a superficial and cursory one, inadequate as a generic assessment of risk and bearing no indication that it paid any particular regard to the needs of a woman of child-bearing age." I also referred Carrie to the case of “Collins V First Quench Ltd [ 31 January 2003]” where Mrs Collins successfully sued for A£179,000 because her employer failed to carry out a risk assessment and failed to ensure she was not harmed during her work under i.e safe from attack “under Regulation 3 of the Management of Health and Safety at work Regulations 1999” However in the meantime I advised Carrie that under the “Maternity Protection Act (1994 to 2004)” she is obliged to let her employer know 4 weeks before she plans on going on maternity leave. I advised Carrie that in light of her current duties that she should advise her employer as soon as reasonable practical – section 9 para 1(a) of the act requires her to furnish them with a medical certificate to confirm the pregnancy. I advised Carrie that because of her qualification and the nature of her work if the risk assessment she couldn’t work in her current position and they could not find her work in another department within the company she have to take health and safety leave as laid out in the “Maternity Protection Act (1994 to 2004) Section 18 paragraph 1 A & B” it states “that the employee cannot be moved on a duly sustained grounds and that the work in which the employer proposes is not suitable” meaning that they cannot put Carrie in work that is not suitable for her. If Carrie has to apply for the Health and Safety leave the employer is obliged[CK1] to pay full salary /wages for the first three weeks and to provide certification after to acknowledge that is leave under the Health and Safety Leave section 18 2 A&B . It should be noted that the company must first try to place Carrie in suitable work to avoid unnecessary leave if this situation arises. In relation to the period up to the birth of her child and subsequent maternity leave Carrie if she availed of the Health and Safety benefit she would be paid Health and Safety benefit and paid her normal salary/ wage as it is stated in her contract of employment with Home Securities. This cannot be disputed as it is stated in the Maternity protection Act. Per “Section 22 subsection 1(a) and Employee on maternity (protected leave)” of the “Maternity Protection Act” I also informed Carrie that if she had to avail of this leave it cannot be treated as being absent from employment and must be included in payment if contractual and also paid for any accumulated leave of public holidays accrued whilst on she is Maternity leave. In summary my advice to Carrie is to notify her employer of her pregnancy all antenatal appointments. Carrie is also to request the health and Safety assessment they performed for women of childbearing age in that work environment and if it not prepared for one to be prepared for her. If it is deemed her work would put her in danger they can (a) offer her alternative role or if not she can (b) avail of Health and Safety leave.

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