Stephen Miller and Frances Ross from Clyde & Co (Scotland) LLP provided a helpful primer on several aspects of employment law, including practical commentary on the legal landscape on mental health issues at work and dealing with protected beliefs on social media.

Capability (absence) dismissals

With local authorities facing issues with growing absence levels and reduced workforces and budgets, Ross shared pointers on ensuring a solid basis for absence-related decisions, which can often cause concern if employees are classed as disabled. She flagged the following areas where things can go wrong:

• Not following your policies. “Your policy is what you’ve said you’re going to do if employees have repeated absences, so it’s important you follow that and have a paper trail,” she said.
• Sticking too rigidly to policy. You may need to make adjustments for those who need it, so avoid a “one-size-fits-all” approach.
• Not considering early enough if the employee is likely to be considered disabled.
• Employees being left without contact for extended periods. “Managers sometimes believe they shouldn’t be contacting employees who are off sick, particularly if it’s with stress,” said Ross. “You can find there’s been no contact for six months, putting you on the back foot, As a minimum, make sure you’re complying with your policy around regularity of contact.”
• Not giving enough thought to reasonable adjustments. Ross advised thinking about this at an early stage.
• Not obtaining input from occupational health, or not acting on the recommendations. However it is critical that before getting an occupational health assessment, the specialist is aware of the context.
• Not having up-to-date medical evidence. “We need medical evidence to support the conclusion that there’s no realistic prospect of the employee being fit to return or achieving acceptable levels of attendance within a reasonable time frame,” said Ross.
• Not considering alternatives to dismissal. “Dismissal is the nuclear option”, said Ross, so not considering options like adjusting the role or redeployment can put employers at risk of a disability discrimination claim.
• Tolerating absence for too long. “That can make it difficult to show why, all of a sudden, it’s not sustainable,” warned Ross. “You need to show why it’s no longer sustainable.”

Mental health

In the UK, over 17 million working days are lost in the UK to stress, anxiety and depression each year and one in three young people experience symptoms of conditions such as depression and anxiety. This means all employers will have many employees experiencing mental ill health, some of whom will be disabled.

“It’s important managers are trained in dealing with mental health so they can spot the signs and know how to respond,” advised Ross, adding that managers need to be educated in how the duty to make reasonable adjustments works. Examples of reasonable adjustments for employees experiencing mental health difficulties could be adjusting working hours, allowing more frequent breaks, reallocation of duties and considering work location.

On whether exclusive homeworking could be seen as a reasonable adjustment, Ross said such a situation would be “the exception rather than the norm”. She added: “What you’re looking at is: is the employee disabled? How does their disability affect them, and does the way that it affects them mean that a requirement to sometimes work from the office puts them at a particular disadvantage, as opposed to just being a preference.” Employers could instead look at other adjustments short of full-time homeworking, such as fewer days in the office, more flexibility over the days, or the ability not to come in at short notice.

Getting occupational health advice is critical, but OH specialists must be given a clear referral explaining the employee’s role in detail. “All these situations have to be dealt with on a case-by-case basis,” Ross concluded, adding that manager confidence was key.

Employee beliefs

Employers are grappling with the challenge of employees expressing views on social media that may conflict with the rights and freedoms of others. This is particularly potent in the case of those expressing gender critical beliefs, such as in the well-known Maya Forstater case. “We’ve seen a series of decisions decided in favour of the claimants holding these beliefs, where it’s clear that the bar for failing the requirement to be ‘worthy of respect in a democratic society’ is high,” said Ross. “Beliefs that are unpopular can still be protected.” She cited case law around the distinction between “holding a belief and the expression of the belief”.

This is an area in which case law is constantly evolving. Ross advised having clear policies, especially around social media and helping staff understand that even if it’s a personal social media platform, it could be seen as relevant to employment. “Make sure people have appropriate training, so they understand the policy,” she said. Employers should avoid knee-jerk reactions: response must be proportional.

Drugs and alcohol

Nervousness around random testing for drugs and alcohol is “misplaced”, said Miller. “The 1974 Health and Safety At Work Act makes it an offence to allow people to attend work under the influence of drugs or alcohol… so that’s a pretty solid starting point [for random testing],” he added. However, employers should make sure only to test groups where there is genuine risk, and random testing must genuinely be random.

For part one of this session, covering the Employment Rights Bill and the new Duty to prevent sexual harassment, click here.

Blog by Katie Jacobs, an award-winning freelance journalist, writer and editor, who specialises in writing about the world of work.

She was previously Editor of HR Magazine and Senior Stakeholder Lead at the CIPD.