Legal Q&A: Reintegrating staff

The British Airways (BA) uniform policy has finally been changed to allow crosses to be worn. Six months after starting unpaid leave, Nadia Eweida, the check-in worker who was at the centre of the dispute, is returning to the workplace. However, reintegration after a long time out of work can be hard for both the employee and the employer, especially where there has been a dispute.

Q In what circumstances can the issue ofreintegrating an employee arise?

A There are a number of potential scenarios where this problem may arise. For instance, the employee may be absent for long periods if injured in a workplace accident, which may result in litigation relating to the personal injuries.

Other instances include claims of discrimination connected with pregnancy or maternity leave. Maternity leave could result in a considerable absence, as all staff who are expecting children after April this year will qualify for the additional maternity leave period of up to one year.

Possibly the most difficult situation, however, is where the employee has been subject to disciplinary proceedings in relation to misconduct. There may have been a decision taken to suspend or dismiss the employee, but then the employee gets reinstated following an appeal or a tribunal hearing. Either way, care will need to be taken that they are reintegrated into the workplace as smoothly as possible.

Q What particular problems can arise?

A As there may have been changes in working practices, the employee may need extra support to understand and work with these changes.

If the employee has been absent due to a long-term health problem, consider whether they are ‘disabled’ within the meaning of the Disability Discrimination Act. There will be a duty to make reasonable adjustments to remove any disadvantage the employee may face due to the disability. This can extend to making adjustments to premises and any working practices.

Where an employee returns to work following a dispute connected to a discrimination complaint, it is important to guard against any claim that they have subsequently been treated less favourably due to raising a claim.

As in the BA case, there may also be the issue of unpaid wages during the period of absence. Whether those wages will have to be paid will depend on the circumstances of the absence and the terms of the contract. Does it allow for an employee to be placed on unpaid suspension?

Q What claims can employers face when things go wrong after reintegration?

A Remember there is an implied term of mutual trust and confidence. If sufficient support is not given, then the employee may resign and claim that this fundamental term of the contract has been breached, giving rise to a claim for constructive dismissal.

If reasonable adjustments are not made for a disabled employee, there may be claims for disability discrimination, or victimisation claims relating to any previous discrimination complaint.

If back pay is outstanding there may be a claim for unlawful deductions from wages.

Q What steps can an employer take to avoid further disputes or potential claims?

A Keeping in contact with the employee during the period of absence will help them still feel there is a connection. To a certain extent this has been recognised in the new maternity legislation being implemented in April. This will allow for up to 10 ‘keeping in touch’ days during the maternity leave period and it makes clear that reasonable contact is also allowed.

Providing reassurance to the employee is very important. Discussions with the employee prior to the return date should focus on what support may be helpful. This can range from the provision of training courses, to an adjustment in working hours to gradually build up the employee’s time in the workplace.

In the BA case, Eweida had kept in touch with colleagues and had seen that 257 had signed a petition supporting her. While it is unlikely many other long-term absences will lead to petitions being passed around, it will be important for the employee to have the reassurance that colleagues will welcome them back.

In the most difficult cases, it may be that the dispute has been personal between the absent employee and another member of staff. In this instance, make sure you inform the other member of staff that the employee is returning and explain that the dispute is now at an end. If the employees are unable to work together, consider relocating them or reorganising their duties to avoid or reduce contact between them.

By Guy Guinan, partner, employment team, Halliwells

See next week’s issue of Personnel Today for a full Q&A on the new maternity regulations

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