Jersey Employment Tribunal Decisions

Nolan v Voisin Department Store Limited, Gerard Voisin and Alison Le Vesconte [2020] TRE 053

Summary: An employee suffering from a disability successfully managed to obtain a judgment confirming that they were subject to direct disability discrimination by being requested to attend a meeting (having already declined to attend an earlier meeting) whilst on long term sick leave. The Tribunal was particularly critical of the Employer’s conduct saying [at para 46]: “whether or not the meeting is properly described as a welfare meeting the fact of the matter is an employer is required to wait until that person becomes medically fit to attend work. Until that time, an employer should respect the medical advice that has been received, which of course indirectly applies to the Employer. It is difficult to see any circumstances in which it would be appropriate for an employer to look behind such medical advice and therefore any employer that does so runs the risk of being found to have treated their employee unfavourably.

Action Point: This case once again highlights that Employers must be careful with how they interact with employees on long term sick leave. If the sickness is considered genuine, then the employer should avoid forcing the employee to hold meetings, other than to ensure the welfare of the employee or on a medical practitioner’s advice. If the employer suspects that the sickness absence isn’t genuine, then the employee should be asked to attend a medical appointment with a practitioner appointed by the Employer for a second opinion. Ultimately, however, an employer can dismiss an employee who does not attend work once the sickness absence policy has expired and who refuses to attend a meeting to discuss a plan to arrange for their return to work.

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