Disability claims

[Clitheroekid]

I was recently reading this interesting article - http://blog.affinity-legal.co.uk/2016/1 ... on-claims/

It seems to me that imposing this liability is a completely unreasonable burden on employers, particularly small firms, which are the vast majority. I also suspect that it's a potentially lucrative route for fraudsters.

The problem is that rather like whiplash claims a claim of suffering from stress / anxiety / depression (by strange coincidence `SAD') is almost impossible to disprove.

If someone says they are suffering from whiplash it's quite possible that they are, even though a medical examination would disclose no visual evidence. This is why it's such a lucrative source of fraud, as the examining doctor will always give them the benefit of the doubt and certify a whiplash injury.

Likewise, if I go and work for a small firm and then after a few weeks I go to my overworked and harassed GP complaining of SAD the chances are he will just give me a prescription for tranquilisers / antidepressants just to get me out of his surgery.

Armed with that I send a copy to my employer, thereby triggering the sequence of events described in the article.

I've acted for many employers faced with fraudulent claims, and the vast majority just pay up, knowing that it will be far cheaper and a lot less hassle than defending them. Fraudulent claimants are equally well aware of this, so if they can put together a claim which is (a) reasonably lucrative; and (b) fairly risk-free they will happily do so - time after time after time.

Of course there's no register that a potential employer can check when considering recruiting a new employee to see if they've brought claims before, and the average small employer is pretty clueless about employment law. As the article says, most employers think they're fairly safe to sack someone within the first two years, and it's this ignorance that's exploited by fraudsters.

Even if the illness is genuine, it may well be due to an inherent problem with the employee rather than due to anything the employer has done or not done, but it makes no difference, the claim can still be brought.

To my mind such laws should only apply to businesses that employ above a certain number of employees - say 20 - and who have the time and resources to defend them effectively. It's potentially ruinous to saddle small firms with what could be a liability for tens of thousands of pounds. Such firms are not an extension of the welfare state, and no employer should be forced to pay compensation that is either completely unmerited or at best massively out of proportion to the employee's period of employment with them.

If such a limitation isn't acceptable then I would contend that claims should be subject to the claimant having completed the same minimum two year employment term as required for other claims.

What do fellow Fools think?

[quelquod]

It's just as potentially ruinous for a small firm to cause a bad or fatal accident to an employee but I expect that you wouldn't suggest they should be exempt from compensation. Similarly you wouldn't apply a 2-year test where the employee was disabled by say a company's reversing JCB chopping off a limb. I don't think you can fairly be selective about types of illness or disability in this way. Surely it's down to even small firms to take advice, insure, operate safely and all the rest or take the consequences?

[supremetwo]

I was recently reading this interesting article - http://blog.affinity-legal.co.uk/2016/1 ... on-claims/
Of course there's no register that a potential employer can check when considering recruiting a new employee to see if they've brought claims before, and the average small employer is pretty clueless about employment law.

It is also unlawful for an employer to ask about mental health at a job interview.

Hardly a level playing field.

http://www.mind.org.uk/information-supp ... -jobs/#one

[rgifford]

Can a company protect themselves from this sort of claim by only paying Statutory Sick Pay (claimed back from the government) and by not sacking the long term absent?

[midnightcatprowl]

Can a company protect themselves from this sort of claim by only paying Statutory Sick Pay (claimed back from the government) and by not sacking the long term absent?

Statutory Sick Pay can no longer be claimed back from the government. Many small employers are still not fully aware of this and it can be a serious problem for smaller businesses particularly the really small business no matter how genuine the illness.

It is, sadly, helping to create a situation where even more small businesses will just not risk taking on employees and prefer to avoid growing the business rather than to employ.

[Clitheroekid]

It's just as potentially ruinous for a small firm to cause a bad or fatal accident to an employee but I expect that you wouldn't suggest they should be exempt from compensation. Similarly you wouldn't apply a 2-year test where the employee was disabled by say a company's reversing JCB chopping off a limb. I don't think you can fairly be selective about types of illness or disability in this way.

No, of course I wouldn't deny the right to compensation for the type of injury you're describing. However, there's a major difference, in that such injuries would be covered by the compulsory employers' liability insurance. It's very unlikely that the type of claim mentioned in my original post would be covered by EL insurance.

Surely it's down to even small firms to take advice, insure, operate safely and all the rest or take the consequences?

The point I was making is that even if a small firm does take advice and has all the normal insurance in place they can still be saddled with a substantial uninsurable claim when they may have done nothing at all wrong.

The government are supposedly committed to reducing red tape and lessening the burden on small businesses, so removing this risk would be a positive contribution to that policy.

[oldtimer]

It seems to me from reading the information given that this is an "unintended consequence" of poorly drafted legislation intended to protect people with disabilities.
I think you should draw the attention of your MP to this legislation and how easy it would be to exploit it.

[dspp]

CK,
Yes you are right that a minimum size threshold and the 2-year threshold would help with this and other issues. Re size threshold the union recognition legislation (which is harmonised across EU) is set at 20-employees and so that would be a useful peg to hang it on. Some other very serious ones that disproportionately affect small businesses are:
- requests for reduced / flexible hours working
- pregnancy & maternity leave
- adoption leave
The combination of the first two especially make small firms very averse to employing younger females. I fully appreciate it is not PC to say this, and I fully appreciate that this is the law of unintended consequences, but it is the reality. Another path for these is to make them equally applicable to menfolk but that just makes all youngsters high risk from a firm's perspective. I wonder how agencies manage these risks - yet another reason to run someone through an agency and/or on a short term contract(s) for a year or so to check whether they bed in.
regards,
dspp

[quelquod]

The point I was making is that even if a small firm does take advice and has all the normal insurance in place they can still be saddled with a substantial uninsurable claim when they may have done nothing at all wrong.

Yes, I was being a devil's advocate to point out that you can't fairly discriminate against people who have become disabled through (possibly work-related) stress just because it's difficult to detect fraudsters. People have pretended to have back problems (equally undetectable) for donkeys' years.

Some other very serious ones that disproportionately affect small businesses are
- pregnancy & maternity leave

And indeed because of this significant point I never in nearly 30 years owning a small business ever employed someone who I considered might be a risk in this regard. Whilst unfair, it's a natural consequence of dumping the disproportionate costs and prolonged difficulty on a small business which a larger one can amortise.

[dionaeamuscipula]

Some other very serious ones that disproportionately affect small businesses are:
- requests for reduced / flexible hours working
- pregnancy & maternity leave
- adoption leave
The combination of the first two especially make small firms very averse to employing younger females.

It is fortunate, therefore, that younger females are (on average) paid about 20% less. Compensates nicely.

DM

[dspp]

DM,
I am not saying it is right, I am just saying how it is through the eyes of a small business owner. Personally I have never discriminated and a lot of young female engineers (and some other types) have got a professional start in life as a result of my viewing through a sex-blind lense at recruitment. They were simply the best candidate at interview. But equally my fellow directors and I have sometimes looked at each other in private over a pint and said "cor she's a cracker, betcha she's pregant within X years, we're on the hook for that", or "she's already had one and I wonder how long until #2 and #3 arrive". As the proud father of a young lady I/we have then gone and hired the best person for the job in the hope that one day someone else will take the same risk, and done so at the same rate/salary as the equivalent male applicant. But it is a risk and if you are a small and struggling business it can be a very big risk. I have also known young ladies who very openly brag about studying X at taxpayer expense (because some skillsets are heavily subsidised, think nursing & midwifery), getting job Y because they want a family, queuing up Z babies at neat intervals and company expense so that they are off for P years, then leaving anyway at end of maternity years to raise the family - then wondering why back-to-work mothers have a hard time getting employment after so many years of skill fade and - in cases like these - sheer cynicism. It is not easy is it ? It is even more diffult to discuss it frankly without being pilloried for setting out the reality from the small employer's perspective.
regards, dspp

[melonfool]

It's a slightly scare-mongering article.

Tribunals are not stupid and even if such a claim were won the payment is unlikely to be tens of thousands for someone with short service, a pre-existing condition and where it is a small employer.

However, ignorance of the law is no excuse, even for small employers.

Sacking someone off sick always carries a risk and any employer worth their salt would know that. Totally free advice on exactly this sort of matter is available from ACAS for employers, not to mention other sources including the govt own website.

In this example the employer should have asked the employee for more details of their illness and asked to have a doctor's report on the prognosis. They could have used the free government occupational health advisors to determine if the illness could be considered a disability.

Dismissing someone with a disability is not in itself unlawful, by the way. If they are not capable of doing the job the dismissal can be fair, but a fair process has to be followed. There could well have been reasonable adjustments they could make, though without more details it's impossible to know what.

I disagree that a size limit on employers is a good thing. It would likely lead to people being mistreated in small firms and also to employers setting up separate limited companies to employ people to keep under the limit when they are at the margins.

Mel

[quelquod]

Dspp, I think that you possibly worked in a larger concern than mine (15 employees tops) and it was too great a risk for me to lose say 10% of my staff and be unable to replace her for many months then possibly find that she didn't return. Just pragmatic I'm afraid, but as Spock might have said, 'the needs of the business outweighed the benefit to the one'.

The legislators and activists sometimes don't understand the difference in meaning between 'equal' and 'equivalent'.

[dspp]

qq -
I've owned / built up / shut down things that started as one of me in a shed and went up to twenty or so. And much bigger. As you rightly say it is the biggest risk when you are the smallest business. Right now the one I run and part-own is about the same number as you. I fully agree that many legislators don't understand, and nor for that matter do many of the general population. After you take out all the people that don't work; all the people who work for the state; all the people that work in big enterprises; and all the mom'n'pop bands you are left with very few enterprises that employ in the 3-30 people range and really understand the level of risk in taking on a new employee. I suspect you and I are in violent agreement on this one. As it happens I've chosen over the years to take the risk (so I can look my daughter in the eye when she is older), but I was well aware of the reality of the risk. I've also faced down some 'try-on' industrial tribunal attempts over the years so I am well aware of what can happen.
regards, dspp

[Diziet]

- requests for reduced / flexible hours working
- pregnancy & maternity leave
- adoption leave
The combination of the first two especially make small firms very averse to employing younger females.

Seeing as more women than ever work outside the home the net effect is that the equality legislation is effective. I don't have an enormous amount of sympathy for discriminatory practices and in general it is more attitude and prejudice at work rather than reality.

[quelquod]

Nothing to do with equality legislation, just a symptom of today's grasping instant-gratification society where (particularly) younger couples need to have the latest and best of everything immediately and dump as much of their child-rearing costs and responsibilities on the state as it will take. Abetted of course by the state's enthusiasm to see couples split up as freely as possible so that it can shoulder even more costs in sweeping up the mess. But of course there are those who consider this a price worth paying in order to achieve equality at the bottom.

Anyone who thinks that the costs to a business is equal between the sexes simply has not owned or been accountable for one.

[Diziet]

Nothing to do with equality legislation, just a symptom of today's grasping instant-gratification society where (particularly) younger couples need to have the latest and best of everything immediately and dump as much of their child-rearing costs and responsibilities on the state. Abetted of course by the state's enthusiasm to see couples split up as freely as possible so that it can shoulder even more costs in sweeping up the mess. But of course there are those who consider this a price worth paying in order to achieve equality at the bottom.

A fine rant, but the pressures on young couples do not mean that equality legislation is not necessary. Quite the opposite.

[Gengulphus]

A fine rant, but the pressures on young couples do not mean that equality legislation is not necessary. Quite the opposite.

No-one has said that equality legislation is not necessary as far as I remember - i.e. you're addressing a point that hasn't been made.

The point that has been made is that, at least as it stands at present, equality legislation imposes excessive risk and/or costs on small businesses. Whether that's actually true, I don't know - I haven't any experience of running a small business - but it's plausible that a risk which, if it actually materialises, will affect say 20% of your workforce (for a small business with 5 employees) is a lot more dangerous than one that will affect 1% of your workforce (for a larger business with 100 employees).

Blanket statements like "in general it is more attitude and prejudice at work rather than reality" don't help to settle the issue, because it's about specific circumstances, not what happens "in general".

My point is that you need to address the points that have been made rather than the ones that haven't if you're to shed light on the issue for those of us who have no actual experience of it...

Gengulphus

[Diziet]

Ah, thank you for explaining all this to me, because I had no idea about what the discussion was about <sarcasm alert here - your post came across as pretty patronizing>

When the legislation came in, all sorts of businesses, big and small, made terrible claims about how awful it would be for them. And, having been directly discriminated in my career, more than once, i do have direct experience, and, seeing as I i am an extremely hard working and successful employee, very little sympathy.

[Gengulphus]

Re size threshold the union recognition legislation (which is harmonised across EU) is set at 20-employees and so that would be a useful peg to hang it on.

One general point to make about that is that making the same size threshold apply to lots of things would produce a "cliff edge" phenomenon: hiring e.g. your 20th employee might impose a lot of extra costs and risks, and possibly even worse, impose a very steep learning curve on the employer at that point. Together, they could make small businesses very reluctant to grow beyond 19 employees...

So I would actually argue that other 'coats' should be hung on different 'pegs'. Spread the costs, risks and learning out as say one new thing for the employer to handle at 10 employees, one at 15, one at 20, one at 30 and one at 50, and it will be much easier for employers to face. They'll still complain about it, of course, but they're unlikely to be anything like as daunted by it.

Of course, that does mean having to prioritise the various duties the politicians want to impose on employers...

Gengulphus