Watson Esam | News | Employment Law Issues - A Case Study

Circumstances

Miss W, a fit and healthy 32 year old PA worked for a company for 5 years.  She had a history of migraine with sporadic episodes, resulting in a few days' sick leave every year.  Last year her migraine became so severe that she had a few weeks' sick leave and was trying new medication.  It became clear that she was likely to take a couple of days' sick leave every month in future.  Her employer predicted a downward spiral and told her that she was no longer suitable for the job, dismissing her and giving her 5 weeks' pay in lieu of notice.

Legal Issues

Unfair dismissal, disability discrimination, 'fit notes'

Outcome

The employer had a duty to consider whether the migraines constituted a disability, how her return to work could have been managed by investigating her illness and symptoms, her likely return dates and ways to adjust the job or workplace to assist her.  In this case it might have helped to have had an adapted VDU screen, different lighting in the office or a place to rest.  All of these might have been considered reasonable adjustments.  As it stood Miss W would have succeeded in an unfair dismissal and disability discrimination claim for the employer's failure to follow procedures.

From 6th April 2010 'fit notes' come into force, replacing the current sick notes.  The idea being that a GP can give advice relating to adjustments, altered working hours and phased return to work, all of which would enable the employer and employee to make an informed decision on how best to manage the return to work.

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