Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Do you have Occupational Health in your workplace or does your contract or a policy state you are entitled to seek assistance from them?Please note that it is a very busy night this evening and I am the only employment lawyer on so there will be a delay in responding but I will get back to you sap, thank you
Hello Ben. Thank you for getting back to me that fast. Unfortunately neither my contract or anything else says that I am entitled to seek assistance of Occupational Health. Also we have not got this service in our firm.
My name is Petra.
Hello Petra, thanks for your patience. It is not a formal requirement to have OH in your workplace or for qualified professional to determine doctors’ reports you have provided. It is entirely possible for the employer to have no dealings with OH at all and take all decisions about your employment that relate to your health themselves. For example, many small employers will not be able to afford to pay for OH involvement and it could simply come down to you getting signed off from work, or having a report or suggestions done by your doctor and considering them and applying any changes or adjustments as necessary.
Whilst stress in the workplace is becoming an ever-increasing problem, no specific legislation deals with it. The rights of employees in these circumstances are scattered across various legislation and common law examples.
A good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.
As no standalone claim exists for being exposed to stress, the affected employees have the following options open to them if they were going to challenge their employer over this:
1. Grievance - this is a formal internal complaint, following which the employer is obliged to investigate the issues and deal with them in an appropriate manner. It should always be the first step in trying to bring the problem to the employer's attention and to try and reach a resolution.
2. Constructive dismissal - this occurs where the employee resigns because they feel they were left with no other option in the circumstances. Further considerations include:
3. Personal Injury - this is a claim for negligence against the employer. Further considerations include:
In the first instance, I would advise going down the grievance route first and only consider pursuing legal action as a last resort if it is evident that the matter cannot be resolved in any other way.
Also if you raise a grievance it does not mean they cannot take any disciplinary action against you – there is nothing stopping the employer from doing so but the fairness of such action could be challenged, especially considering the reasons for you absence.
Thank you for your answer. Would you please let me know how these disciplinary actions could look like and if there is some kind of trigger or would that be completely up to the Employer? As a German native I am kind of shocked about this legal hole.
How could this decision from termination of my contract if it comes so far be challenged? Would you know of any costs which could arise if it would come to a tribunal?
Dismissing an employee due to sickness absence is a potentially fair reason for dismissal under the Employment Rights Act 1996 as it would amount to a capability or even a misconduct issue.
However, to justify it as being fair the employer needs to follow a fair procedure and act reasonably. First and foremost the employer needs to comply with any workplace sickness absence procedures and policies. For example these could list the number or duration of absences before formal action is taken.
In any event, when considering the fairness of the employer's actions, a tribunal would usually look at the following factors:
There are no specific triggers that would start such action, it is for the employer to decide on these but again they must follow the general rules of fairness, or there could also be a specific policy which states specific triggers.
If you are going to make a claim in the tribunal then there would be certain fees associated with claiming, such as claim fee and hearing fee, which could be more than £1,000 but if you win you can get these back from the employer.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?