EMPLOYMENT LAW NEWSLETTER

In which we consider… Issue 438 • The Mother’s Day Brush Off March 2015 • Being Non Specifically Sick • Something To Like

- An ironing board - An alarm clock - A used garage sale toaster - Spanx knickers - A pedal bin - Hair dye - Carb Control and Fat Control Pills – and Canasten cream (all genuinely promoted in Boots for Mother’s Day)

Although to be fair, there were a couple which were not about housework, family servitude and weight loss. These included a fake ‘MOM’ tattoo transfer for babies, or a real MOTHER tattoo (on her formerly perfect child). Of the above, probably the permanently tattooed daughter would be the worst. So, if either of my daughters happens to be reading this, BEWARE. If you ever do this I will have a DAUGHTER tattoo done* in retaliation and display it to all your friends whenever they visit. FOREVER! Just so’s you know. Can you do better? If you’ve received something which resulted in a rictus smile please share, or if you know you gave something grim, share that too! Email me or post on the WG Employment Facebook page…you don’t have to explain. Which is more than can be said for Ms Donelian in the case of Donelian v Liberata UK Ltd. Here the EAT had to consider whether an employer had constructive knowledge of an employee’s disability, and whether enough reasonable steps were taken to ascertain the reason for the employee’s persistent absences. HAVE YOU BOOKED…?

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Ms Donelian was employed as a court officer by Liberata UK Limited (Liberata) for nearly 11 years. During her time with Liberata she claimed to suffer from a variety of ailments including hypertension and “work-related stress”, which led to regular absences from work. From the end of 2008 and throughout 2009 she was absent for a total of 128 days, giving additional reasons such as viral infections, dizziness, difficulty breathing, reaction to medication, and wrist pain. On one occasion there was no explanation given at all. Ms Donelian was referred to Liberata’s occupational health service in May 2009, with the employer requesting answers to a number of questions including whether there was any medical condition that explained the pattern and irregularity of her absences. In July 2009, Liberata received the medical report clarifying that Ms Donelian was not disabled but it did not directly respond to the questions that were posed by Liberata. After Liberata addressed this issue, a more detailed medical report was issued, which still did not address the

If you’ve got a mother, or you are one, you can’t have failed to notice that this weekend brings Mothering Sunday. And if you are planning to buy a gift for a mother, can I whisper some gentle advice in your ear..? DON’T GET HER A DUSTPAN AND BRUSH SET!!! Or a vacuum cleaner. Or an apron. Or an iron. Or ANYTHING which will make housework ‘easier’, unless it’s an attractive and personable SERVANT. I found a display of brightly coloured dustpans and brushes in a shop in Southampton’s West Quay a few days ago, next to a sign reminding me that this was ideal for Mother’s Day. I could have wept. Or found the store manager and vigorously dustpan&brushed him (for surely it was a he) backwards into the silicon cake moulds. Surely you don’t have to be a rampant feminist to find this kind of thing insulting. (The display, not the GBH with a plastic kitchen cleaning accessory.) And yet, here in the 21st century it goes on all the time: gifts for mum which are all about what other people would like from her. I did a little online research for the worst Mother’s Day gifts of all time and here are a few I discovered:

• Ms Donelian’s ailments were more directly linked to colds, flu, and general stress and anxiety which would not normally lead an employer to a disability.

• On the facts presented to Liberata from Ms Donelian herself and the occupational health report, it was unlikely that any of the illnesses she experienced would lead to a prolonged absence to bring her within the definition of a disability.

• Liberata had followed every avenue available when investigating her disability status, including follow up with the medical report, holding “return to work” meetings, and correspondence with her GP.

There were flaws to be found in the medical report, including the fact there was no face to face meeting with Ms Donelian and so was based only on documental study. It also did not review the impact Ms Donelian’s condition was having on her, and went on to recommend that a managerial approach rather than a medical one would be more appropriate to rectify her health issues. Ms Donelian appealed to the EAT, arguing that Liberata had relied solely on the medical report; therefore not considering their own judgements, and that they hadn’t done enough to reasonably investigate her disability and escape constructive knowledge. The EAT supported the tribunal in its decision. It found that Liberata had not just relied on the medical report, as proven by the “return to work” meetings and consultation with the GP which led them to their own conclusions, and showed that it had made every effort possible to determine whether Ms Donelian was disabled. This case can come as some comfort to employers who have troublesome and regularly absent employees as it shows that it is an employer’s action as a whole that can determine whether there is constructive knowledge of a disability. It’s important for employers to realise however, that each case is determined on its own facts and situation. And finally…liking things these days is not what it used to be. Time was if you liked someone you just felt a general sense of wellbeing in their presence, and if you liked a thing…you…well, you usually ate it. Or wore it. Or sniffed it or something. You get my drift. But LIKES now have a different kind of power. On Facebook you can gauge how many people you are connecting with by the number of likes you get for any given comment, joke, picture of a cat in a dishwasher… Some LIKES, though, are more important than others, and next week we will be asking you to like us and a local charity for a very good reason (ie: not merely our shallow sense of personal worth)…your likes will have a cash value for the charity we are supporting. When you like, we’ll donate. See? You don’t even have to donate money yourself; you merely have to give the charity the Facebook equivalent of a warm smile and we’ll do it for you. More from me on this next week. Don’t miss it. You’ll like this. Not a lot. But enough… *And I haven’t decided yet WHERE I’ll have it. Be afraid…

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questions. Even though Liberata did not follow up again, “return to work” meetings were held in an effort to establish whether Ms Donelian was disabled by discussing this with her and her GP. In October 2009, Ms Donelian was dismissed for persistent short-term absences, failure to comply with the absence procedure and failure to work her contracted hours. Consequently, she brought a number of claims to the tribunal including a claim for failure to make reasonable adjustments. The tribunal dismissed all the claims, finding that Liberata had no constructive knowledge of Ms Donelian’s disability. This was for a number of reasons:

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