However if an employer agrees to provide a reference, whether it is verbal or written there is a duty to take reasonable care to ensure that the contents are true, accurate and fair and are not misleading. This duty of care relates not just to the departing or former employee but also to a prospective new employer who may be influenced by its content in deciding whether to make an offer of employment.

One question that often arises is whether an employer can provide a bad reference. The answer to this depends on whether it is true or not. The worst case scenario is where an employer provides an untrue bad reference out of malice that cannot be substantiated and the departing or former employee loses employment opportunities. In this situation the employee can sue for damages for financial loss or even defamation and possible unlawful discrimination.

Where an employee is dismissed and brings proceedings say for unfair dismissal and unlawful discrimination then the provision of an untrue and bad reference can be an aggravating factor and potentially classed as victimisation. The employment tribunal can take this into account when assessing any compensation.

Conversely employers can be sued by future employers who hire the departing or former employee as a direct result of a glowing reference that turns out to be untrue. There was a flux of case law in the 1990s where a number of former employers were successfully sued by former employees and new employers because they relied on references which turned out not to be true. Spring v Guardian Assurance plc and others [1994] IRLR 460 HL is one authority that springs to mind, where in extreme circumstances a former employee successfully sued his former employer for negligent misstatement which resulted in the loss of employment opportunities and where he was barred from the insurance industry.

For this reason many employers have now implemented a strict written policy on the provision of references. Many employers will now only provide a basic factual reference with no subjectivity. It is therefore common practice for many employers to provide minimal information for example just the dates of employment, job title and salary with no detail to as to how good or bad the employee was at their job.

It is also common practice for employers who do provide a reference to include a disclaimer of liability arising from any errors, omission or inaccuracies that may be contained. Disclaimers will generally be of limited effect however there is no real disadvantage to the employer by including one.

Some employers also have a policy not to provide references at all and this could imply that you have a problem with the departing or former employee. This in turn could lead to allegations that you are discriminating against them and have broken the mutual trust and confidence. It is therefore good practice to respond to each reference request and to back it up with a statement that it is not your policy as an organisation to give references.

Where the employment relationship breaks down and this results in a settlement agreement it is also customary for the employer to provide a reference as part of the deal. It is our experience that employers are usually only willing to provide the most basic and factual of references. It is better in these circumstances for the departing employee to attempt to secure a personal reference from a colleague who can perhaps vouch for the quality of their work and any contributions during the course of their employment.

It is also good practice to be consistent in the treatment of employees when providing references. Providing a reference to one employee but not another could result in a claim of unlawful discrimination giving rise to legal risk and costs.

Another issue is what happens if the departing or former employee wants to see the reference? The general principle is that you do not have to disclose the reference. However a new employer will have to disclose the reference if the former employer has consented to its disclosure and that it is reasonable in all the circumstances for the new employer to do so.

If you really do not want the reference to be disclosed to the departing or former employee then it is vital that you inform the prospective new employer that you do not consent to its disclosure or any confidential parts of it to the employee. It is obviously better to make this request in writing.

The Information Commissioner has also issued a Data Protection Good Practice note in relation to subject access and employment references. This suggests that in most circumstances the employer should provide the information in a reference to the person to whom it relates. Where the person who wrote the reference refused their consent to disclose the reference this will not justify withholding the information contained in the reference, especially where it has affected the individual’s ability to take up a job offer. The Information Commissioner also recognises that there may be circumstances where it would simply be inappropriate to divulge the details or to disclose the reference for example where there is a threat of violence and/or intimidation by the former employee towards the person who wrote the reference.

To summarise there is no right to a reference, except that employers need to ensure that it is true and accurate and on this basis it is a good idea to ensure that time and thought is given to the task to minimise any future risks.

If you have any issues relating to reference requests then contact Michael Stewart – Partner and Head of Employment. Tel: 020 7467 3988 E-mail: se@jamesedwardassociates.com

Many larger employers will no doubt have comprehensive performance improvement policies (PIPs) combined with disciplinary procedures to address these issues. These may be either contractual, in which case they must be followed, or they may be non-contractual which means that they may not be followed.

However, whatever the size and resources of the employer’s business, if the under-performing member of staff has in excess of two years’ continuous service then they have ordinary unfair dismissal rights that they can pursue. The employer will in these circumstances be at risk if they simply terminate the employment relationship without following some form of fair process.

Here are some handy tips that it is recommended that employers follow if any members of their workforce are under-performing in their role.

1. From the outset it is probably best to have an informal discussion with the employee in question and as soon as possible, commonly known as counselling. As the employer you will be able to find out why the employee is under-performing and whether there are any mitigating circumstances, for example personal problems at home, looking after dependents causing tiredness or any other external factors. It may well transpire that the employer is at fault for creating an increased workload where for example, staff have left and are not replaced creating additional work or it could be that the employee is having problems with a new system of work and that more training is required.
2. If there are no obvious causes for the under-performance and if counselling fails to address the problem, then it is recommended that the employer follows a formal disciplinary process which can be combined with some form of performance improvement plan. The aim of this is to improve standards of work and not to punish the employee in question.
3. Where under-performance can be identified, the employer needs to bring this to the attention of the employee and to explain where there are gaps in their performance and what needs to be done by the employee (and the employer) to get them to an acceptable level of performance. This must be measured over a reasonable period of time and it is recommended that the employer provide continuing support and training if required.
4. If performance improves then this should be the end of the matter. If performance does not improve to the required standard, then it is recommended that you implement an ACAS approved disciplinary procedure.
5. This is usually a three to four stage process which involves arranging a disciplinary hearing where the allegations are backed up with examples of under-performance which can be put to the employee and where they need to be given a full opportunity to defend their position. Remember that the employee has the legal right to be accompanied by an independent work colleague or a trade union representative at a disciplinary hearing.
6. It is recommended that full minutes are taken of the disciplinary hearing which can be provided to the employee for their review and verification. If the employee wishes to record the disciplinary hearing then as the employer you can refuse to allow this, however as the process should be open and transparent it could be argued that it would provide a contemporaneous record of the hearing and that the employer records the hearing which will aid the preparation of the minutes.
7. As under-performance is usually not classed as gross misconduct (unless it involves an act that causes serious loss, financial or otherwise) then it is recommended that a series of warnings be issued at each stage of the disciplinary process.
8. At the first stage it is recommended that a verbal warning be issued lasting up to 6 months of the employee’s record. Thereafter if performance fails to improve to the required standard, a first written warning can be issued, followed by a final written warning lasting up to 12 months on the employee’s record. The next stage would be dismissal with notice. Do also sure that performance targets are attainable and are measured over a reasonable period of time to give the employee the opportunity to improve.
9. Remember to conduct a disciplinary hearing at each stage of the process and to allow a right of appeal against all disciplinary sanctions that are issued to the employee.
10. Any appeal hearing should be conducted by a senior manager that was not involved in the initial decision to issue a disciplinary sanction. If the business is very small and there are not enough independent senior managers available, then it is recommended that the appeal is outsourced to an established HR practice or business professional to deal with.

Where employees have less than two years’ continuous service then they generally do not have any ordinary unfair dismissal rights and so technically you could dismiss with notice without going through a disciplinary process as there is less risk. However, you need to be careful that your disciplinary policy is not contractual or has not become a custom and practice as a consequence of using the policy for all members of staff over a period of time.

Remember too that employees have day one discrimination rights and it is important to ensure that you are not discriminating either directly or indirectly, for example where someone has a long-term ill health condition which could be a disability in law. We would also recommend that you follow an ACAS approved disciplinary procedure as set out in their Code of Practice. It is also good practice to follow these minimum standards for all members of staff regardless of their length of service.

If you have concerns about performance in the workplace and how to deal with it, then contact Michael Stewart – Partner and Head of Employment at James Edward & Associates.

Before we look at the facts of the Scottish authority it is important to remind ourselves about the law on disability.

The Law

A person is defined as having a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. They must meet the threshold as set out under section 6 (1) Equality Act 2010.

The word ‘substantial’ is important as it means more than minor or trivial and can include the time taken to complete a task. The impairment must also have a long-term effect and last at least 12 months or for the remainder of the worker’s life if terminal.

It is also not necessary for an impairment to have a medically diagnosed cause. This is on the basis that it is the effect of the impairment that matters as opposed to the cause.

The impairment also has to have a long-term adverse effect on day- to -day activities and this means things that people undertake on a regular basis. Things like attending and taking part in social activities, walking, travelling, cooking, shopping, eating. It can also include the ability to get dressed, shower, and other domestic activities that we take for granted.

Earlier this year the Equality and Human Rights Commission sent out a tweet that stated that long covid should not be treated as a disability. This surprised many and caused consternation for many, so much so in fact, that it issued a clarification statement. It stated that long covid was not a deemed disability and that not all cases of long covid will pass the disability test. They went on to also say that “This does not affect whether long covid might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities” It also recommended that employers make reasonable adjustments where necessary for those deemed to be disabled.

What is Long covid?

After being infected with Covid, many people find that their symptoms reduce within 7 days to 4 weeks. Some people on the other hand experience symptoms for longer periods of time, and in some cases many months after their first diagnosis.

The NHS suggests that Long covid can take two forms. The first is referred to as ‘Ongoing symptomatic covid’ which is where symptoms continue for more than 4 weeks but less than 12 weeks. Then there is ‘Post covid syndrome’ which is where symptoms continue for more than 12 weeks and cannot be explained by another condition.

There are in fact many symptoms of long covid and some examples are as follows:-

• Fatigue
• Brain fog (loss of concentration, loss of memory)
• Breathlessness
• Palpitations
• Insomnia
• Dizziness
• Pins and needles/numbness
• Nausea
• Loss of taste and smell
• Muscle pain/Joint pain/abdominal pain
• Diarrhoea
• Skin rashes

The Office for National Statistics also suggests that 3.1% of the UK population have symptoms of long covid and that it was greatest in people between the ages of 35 to 69.

The recent Scottish authority

This involved Mr Burke who was a caretaker at Turning Point Scotland where he tested positive for Covid-19 in November 2020. At first his symptoms were mild, but then Mr Burke developed severe headaches, fatigue, anxiety and joint pain. He had difficulty in showering and dressing himself and this would involve him having to lie down to rest from sheer fatigue and exhaustion. He was also unable to undertake domestic activities such as cooking, ironing and shopping because he had a lack of energy.

Mr Burke remained off sick from work and as a consequence his pay ceased in June 2021. Mr Burke issued a series of GP fit notes and he was sent to Occupational Health where their reports made reference to the fact that he was suffering from long covid and post viral fatigue syndrome. Initially they suggested that Mr Burke was able to return to work and that it was unlikely that he was disabled. However Mr Burke was unable to return to work because of the fatigue that he was experiencing.

Unfortunately Mr Burke was dismissed by his employer in August 2021 on the grounds of incapacity and ill-health and they cited his continuing absence from work.

The dismissal letter stated that “having reviewed the capability report including occupational health opinion closely, and taken the details of our discussion into consideration, it is my view that you remain too ill to return to work…….and there appears to be nothing further we can do to adjust your duties or work environment that would make your return more likely. In addition, there does not appear to be a potential date on which there is a likelihood of you being able to return to full duties in the future.”

As a consequence of being dismissed, Mr Burke issued proceedings in the employment tribunal including disability discrimination. One of the issues at the Preliminary Hearing stage was to determine whether Mr Burke was disabled under section 6(1) Equality Act 2010 which was one of the hurdles that he would need to satisfy in order to pursue his disability discrimination claim. Unfortunately, the employer did not concede on the issue of disability and argued that Mr Burke was not disabled in law, and so it was left to the employment judge to determine the issue.

At the Preliminary Hearing the employer suggested that Mr Burke was exaggerating his symptoms, and made reference to the brevity of his GP’s fit notes. They also suggested that the reason Mr Burke failed to return to work was to avoid an internal restructuring exercise within his team.

During the course of both Mr Burke and his daughter’s evidence, the employment judge was satisfied that they had both given evidence of his ongoing symptoms and noted that there were severe restrictions at the time, on being able to secure face-to -face consultations with a GP. The employment judge also accepted that people suffering from long covid are likely to have good days and bad days.

It was also noted that the employer’s attempt to suggest that Mr Burke was over-exaggerating did not follow the rational that was set out in the dismissal letter which stated that he was “still experiencing symptoms of extreme fatigue” and which suggested that he remained “too ill to return to work”.

The employment judge held that Mr Burke’s suffered from impairments that had an adverse effect on his day-to-day activities and that overall the effects were substantial (notwithstanding the fact that he had good and bad days). It was also held that the effect’s of Mr Burke’s condition were also likely to be long-term.

This means that now it has been held that Mr Burke’s long covid condition has now been classed as a disability his case can now proceed to a full merits hearing where his substantive claims can be heard.

[Burke -v- Turning Point Scotland [2022] ET 4112457/2021]

What is best practice for employers in dealing with workers who are suffering from long covid?

Although the Burke authority is non-binding in law, it is the second of its kind on long-covid and confirms and re-iterates the section 6(1) hurdles that need to be overcome. It is clear that not every long covid sufferer will be classed as disabled if they do not overcome those hurdles and that as is usually the position, each case will be judged on its own facts.

Overall it is important that employers should tread carefully and be aware that a worker with long covid symptoms could be disabled in law and will have employment rights that they can pursue. There is also a duty to make reasonable adjustments in law and a failure to do so can be used against an employer in a disability discrimination claim.

Here are some pragmatic tips for employers to consider when dealing with workers who have long covid or indeed any long term illness.

Investigate and communicate Gather as much information as possible about the worker’s medical condition and prognosis. Collate GP’s fitnotes, all correspondence, notes of return to work meetings. Keep the situation under constant review and ask for more information from the worker’s GP (with their consent). Take time to communicate with the worker the nature of their symptoms, and any patterns they experience, and how they feel that their symptoms are impacting on their ability to work including travel to work.

Specialist advice Consider obtaining advice from an Occupational Health specialist, or an external medical specialist to keep updated on the worker’s condition. Bear in mind that the worker’s condition may change from time to time, as will their ability to meet section 6(1) thresholds. Be careful to ensure that you accurately set out the worker’s health symptoms and ask the specialist to provide a view as to whether they are disabled making reference to the effects on day-to-day activities and whether the effects are substantial.

Follow up Where specialist advice is unclear or is contradictory with other medical advice, then do follow up and seek further medical advice.

Make adjustments Where the employer has information which suggests that the condition might be long-term then consider if any adjustments can be made, for example providing additional rest breaks, agreeing flexible working arrangements, introducing part-time hours and homeworking, changing the worker’s role and/or adjusting their workload, offering counselling, refraining from taking disciplinary action for sickness absence.

Training Provide training to managers as to how they can best handle sensitive discussions around health and how to manage workers who are suffering from long covid. Ensure that written policies are understood and followed.

Policies Review relevant policies for example equal opportunities, health and safety, reasonable adjustment, disability, sickness absence, flexible working to ensure that they are up-to-date, and are fit for purpose and above all are non-discriminatory. You could even introduce a covid policy for the workplace.

We are now seeing a number of cases being heard by employment tribunals relating to covid, and it is certain that more authorities and developments will follow. As ever it is a case of watch this space.

If you have any questions relating to long covid and long-term sickness absence in general then please contact Michael Stewart (Partner and Head of Employment) at James Edward & Associates. Tel: 020 7 467 3988 E-mail: se@jamesedwardassociates.com