However, the doctrine of frustration should not be relied on since the courts are generally reluctant to apply it where a procedure exists for termination of the contract. It is therefore better for the employer to take dismissal action after following proper procedures. Specific health problems Consideration should be given to introducing measures to help employees, regardless of status or seniority, who are suffering from alcohol or drug abuse, or from stress. The aim should be to identify employees affected and encourage them to seek help and treatment. See the Acas advisory booklet Health, work and wellbeing available
APPENDIX 4 75 7 to purchase or download on the Acas website Employers should consider whether it is appropriate to treat the problem as a medical rather than a disciplinary matter. There is sometimes workforce pressure to dismiss an employee because of a medical condition, or even threats of industrial action. If such an employee is dismissed, then he or she may be able to claim unfair dismissal before an employment tribunal, or breach of contract. Also, the Equality Act 2010 makes it unlawful for an employer of any size to treat a disabled person less favourably for a reason relating to their disability, without a justifiable reason. Employers are required to make a reasonable adjustment to working conditions or the workplace where that would help to accommodate a particular disabled person 17 . Failure to return from extended leave on the agreed date Employers may have policies which allow employees extended leave of absence without pay, for example to visit relatives in their countries of origin, or relatives who have emigrated to other countries, or to nurse a sick relative. There is no general statutory right to such leave without pay, except to deal with an initial emergency relating to a dependant under the Employment Rights Act 1996. Where a policy of extended leave is in operation, the following points should be borne in mind: ● ● the policy should apply to all employees, irrespective of their age, sex, marital or civil partnership status, pregnancy and maternity, racial group, disability, sexual orientation, gender reassignment, or religion or belief ● ● any conditions attaching to the granting of extended leave should be carefully explained to the employee, using interpreters if necessary, and the employee’s signature should be obtained as an acknowledgement that he or she understands and accepts them. Employers should be aware that agreed extended leave can preserve continuity of employment, even when such leave is unpaid and other terms and conditions of employment are suspended for the duration of the leave ● ● if an employee fails to return on the agreed date, this should be approached in the same way as any other failure to abide by the rules and the circumstances should be investigated in the normal way, with disciplinary procedures being followed if appropriate
DISCIPLINE AND GRIEVANCES AT WORK – THE ACAS GUIDE 76 ● ●
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- Fall '16
- Farah Nabilla
- representative, disciplinary problems, acas code