Fit for trainspotting

Boy and poor performers may soon be less of a drain on the system when
occupational health practitioners decide who is fit for work – and who is not.
Stefan martin reports

life, choose a job, choose a career, as Ewan McGregor’s Renton character in
Trainspotting says. But in hindsight, would you choose to hire again the same
employees you have? According to a recent CBI survey, 45 per cent of employees
fall below the benchmarks set by employers. So who are the poor performers
and what is the best way to deal with them? 

take Sick Boy. CBI figures show that 6.8 days are lost per employee due to
sickness. It is also claimed that HR managers believe these absences are
often down to Renton-style malingerers, assisted by GPs dishing out sicknotes
like sweets. 

poor performers could include Tommy-type employees, whose weekend cocaine and
champagne sessions hang over into the working week. Not forgetting the
victims of “Begbie” style bosses who may be stressed out or bullied to breaking
point. And, finally, Spud, a Tim-nice-but-dim character who is not up to
the job.

should not shy away from performance management, particularly in sensitive
areas such as stress. There are pitfalls, but following company procedures
carefully can deliver effective remedies for under-performers. We are also
seeing case law and legislative developments starting to take a tougher stance
on the potential for opportunist claims that might result. 

on the outcome of an investigation into why an employee is under-performing,
the next step is to choose the most appropriate course of action. In most
cases, this will either be via the disciplinary or sickness/capability

the Spud case, where the reason is incompetence, employers must provide
employees with sufficient warnings and an opportunity to improve, within
reasonable targets and timescales. If there is no improvement, dismissal
can be carried out fairly provided the employer follows procedures
correctly. New statutory disciplinary and grievance procedures, which come
into force in October 2004, should cut the likelihood of procedural mistakes
and unfair dismissal claims arising.

who are stressed out or bullied by Begbie types are potentially cases for the
sickness procedure. To that end, a compliance check on health and safety is
vital. Does the employer’s risk assessment take account of stress and
harassment? By following draft benchmarks issued by the Health & Safety
Executive earlier this year, employers now have a checklist that can help them
determine if their stress management procedures are up to scratch. 

contractual claims and civil claims, if the employer is in breach of its
implied term or duty to take care of an employee’s health and safety, are also
a big worry on stress cases. The spectre of claims arising under the Disability
Discrimination Act 1995 (DDA) is often present, too.

case law has seen the courts taking a no-nonsense approach to stress. The
Court of Appeal case, Sutherland v Hatton, 2002, IRLR 263, sets out
indispensable guidance for employers on how to protect against claims. For
example, an employer that offers confidential stress counselling is unlikely to
be found in breach of duty.

must also consider their duties to make reasonable adjustments under the DDA,
for example, by trying to find suitable alternative work or altering hours and
work allocation of stressed employees. This will bolster any defence of
DDA claims.

Morgan v Stafforshire, 2002, IRLR 190, the Employment Appeal Tribunal made it
clear that random references to stress and depression were not sufficient to
support a DDA claim unless it could be demonstrated that there was a clinically
well-recognised illness.

may get frustrated over using the sickness procedure to deal with the Sick Boys
they believe are milking the system. In Tommy’s case, under-performance because
of drugs and alcohol problems can be dealt with by the disciplinary or sickness
procedure. The days of Sick Boy being signed off by GPs for weeks are numbered.
Under a new Department of Health scheme, GPs will give up sickness
certification by April 2006 and occupational health practitioners will
decide who is fit for work. 

legal parameters for employers, such as the new statutory disciplinary and
grievance procedures and the HSE benchmarks on stress, should be helpful when
dealing with under-performance. As for the demise of the GP and the dodgy
sicknote, Sick Boy can expect more of a tough-love approach to his minor
ailments from doctors in the future.

Martin, a partner at international law firm Allen & Overy, spoke at the
sixth Employers’Law Conference on 11 November

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