Employment Bulletin
11 April 2008
Redundancy definition
Martland v Co-operative Insurance Society (EAT)
Is it a redundancy when terms and conditions of employment are altered, the employee refuses to accept the new contract which is offered, and is dismissed?
Where the job itself is still essentially the same, it is not really a redundancy according to this case. The reason for the dismissal would be for some other substantial reason. There would be no entitlement to a redundancy payment.
Where the job itself is different, perhaps as a result of a restructure or relocation, there is likely to be a redundancy in the work carried out under the old contract. The dismissal is for redundancy. The employee is entitled to a redundancy payment.
Early ill-health retirement
Murray (L00761) - Pensions Ombudsman
Who makes the decision as to whether an employee is entitled to early ill-health retirement? Normally it would be the Trustees of the pension scheme. They in turn will rely on medical evidence. It is vital that the correct procedure is followed.
Miss Murray was a member of the Royal Bank of Scotland staff pension scheme. This gave an entitlement to early ill-health retirement when a medical practitioner appointed by Trustees certified a condition likely to mean permanent incapacity preventing effective employment at the Bank.
What happened was that the Bank's in-house occupational health specialist was asked to advise. This resulted in a focus on a return to work. Miss Murray's own consultant psychiatrist advised that the prognosis was not good if there was to be a return to work at the Bank.
The Ombudsman found that the Trustees were at fault in not following the Scheme Rules and procedures to the letter. They should ensure that the medical practitioner is an appropriately qualified person and that the questions asked and the approach taken follows the Rules of the Scheme.
If an HR Department is involved in an issue of this kind it is important to remember that they are advising Trustees under Scheme Rules rather than advising the employer on a sickness issue under the Company's sickness procedure.
Ill health and your business
The Government has committed £11m of capital funding to improving occupational health services for businesses. The funding received by NHS Plus will be used to increase its current offering through the creation of six new demonstration projects located in Merseyside, East London, West Yorkshire, the North East, Devon and Worcestershire.
NHS Plus is a network of NHS occupational health departments across England, supplying services to non-NHS employers. It offers support to industry, commerce, and the public sector, with a focus on small and medium sized enterprises.
The NHS Plus network can advise employers how long workers are likely to be off sick, and what they can do to try and help them get back to work as soon as possible. They can give guidance on the effectiveness of treatment, on the prognosis for recovery, compliance with HSE guidelines and employment/health law including COSSH and the Disability Discrimination Act.
We have a number of clients who have benefited from the services of NHS Plus which has provided, inexpensive, quick and convenient access to occupational health advisors.
Please click here for further information about NHS Plus.
For further information on either of these articles, please contact Mike Davies at mdavies@vwl.co.uk or on 0117 314 5336.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
