The Employment Appeal Tribunal (EAT) has recently addressed the interesting issue of whether a claimant has the mental capacity to bring legal proceedings.

In Johnson v Edwardian International Hotels Ltd, the employee believed that his dismissal was procured by the Jehovah's Witnesses and brought a claim for unfair dismissal. The employer contended that the employee's belief about the involvement of the Jehovah's Witnesses in his dismissal was "delusional"; that the employee was suffering from some kind of mental illness and there were serious doubts as to his capacity to bring legal proceedings.

The Tribunal invited the Official Solicitor to investigate whether the employee had sufficient capacity to litigate and stayed the claim pending the investigation. The employee subsequently appealed. After the appeal was lodged, the Official Solicitor confirmed that it would not investigate the employee's mental capacity on the basis that its functions did not extend to Tribunals.

The EAT allowed the employee's appeal. It provided some indication of the steps that are open to a Tribunal when it has grounds to believe that a litigant does not have capacity to conduct the case (although it was reluctant to provide definitive guidance). It identified two key points:

• The Tribunal rules do not provide a mechanism, as is available in the ordinary courts, for the Tribunal to appoint a "litigation friend" to conduct proceedings on behalf of an individual
  
  
• There is a presumption in High Court proceedings that a party has capacity and this should apply in the Tribunal

The EAT noted that Tribunals should be very wary of trying to investigate a party's mental capacity. If the case appears misconceived, it may be struck out on that ground without any need for investigating capacity. The EAT also stated that Employment Judges should be trusted, in exercising their case management powers, to balance the interests of the parties in such cases. If the conduct of one party makes the case truly unmanageable, the claim may have to be struck out even though it is appreciated that the conduct in question is the product of mental illness.

Redundancy and suitable alternative employment

The EAT has recently examined whether an offer of suitable alternative employment was unreasonably refused by an employee.

In Commission for Healthcare Audit and Inspection v Ward, the employee had become disillusioned with the handling of the redundancy process. Whilst alternative roles were identified, the employee did not consider them to be suitable on a number of grounds, including status, job content and experience and future job prospects. Although there was a material difference in job content between the old and new posts, the Tribunal was satisfied that the new post was suitable "on balance" for the employee. However, when combined with her perception, the lack of clarity regarding the offers and her disillusionment, it confirmed that she had not been unreasonable in refusing the offer and was therefore entitled to a redundancy payment.

The EAT dismissed the employer's appeal against this decision. It held that a Tribunal is entitled to take into account their view that the new post was only marginally, rather than plainly, suitable for the employee, when deciding whether or not the refusal was reasonable. It noted that where a new job offer is overwhelmingly suitable it may be a little easier for the employer to show that a refusal by the employee is unreasonable - this is part of the balancing exercise carried out by the Tribunal.

Flexible working - right to request extended

Following the publication of an independent review, the Government has announced this week that the right to request flexible working is due to be extended to those with parental responsibility for children up to the age of 16. It is expected that this extension will benefit an extra 4.5 million parents in Britain.

At present, the law gives the right to request flexible working to parents with children under the age of six or disabled children under the age of 18, and carers of adults. The independent review was commissioned last year by the Government, and carried out by Imelda Walsh, HR director of Sainsbury's, in order to determine how the current right to request could be extended. Ms Walsh's recommendations that the right should be extended to parents of children aged 16, and that the extension should be implemented at once (rather than staged), will now be followed by Government consultation.

Acas - consultation on revised discipline and grievance code

Acas has issued a revised code of practice on discipline and grievance for consultation.

The revised code is intended to take into account the changes being made to workplace dispute resolution, particularly the proposed repeal of the statutory procedures, under the Employment Bill (click here to read our summary of the Bill following its introduction last year).

The new code is intended to be central to the Government's efforts to streamline and simplify the dispute resolution system and is aimed at complementing the removal of statutory measures by establishing concise, principles-based guidance to help resolve disputes early.

One key change to note is that although a failure to follow the code will not, in itself, make a person or organisation liable to proceedings, Tribunals will be able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the code. 

Acas has stated that the revised code is intended to come into force in April 2009, at the same time that the Government introduces the changes to dispute resolution. Acas will also then publish fuller, freestanding, non-statutory guidance to provide supporting information on handing workplace disciplinary and grievance issues. Consultation on the draft code closes on 25 July 2008.

Sick days - public/private sector gap

Absence from work cost the UK economy £13.2 billion last year, with the average employee taking 6.7 days off sick, according to a recent survey by the CBI/AXA.  The research revealed that the gap between absence rates in the public and private sectors has also reached a record level.

Whilst the private sector improved its absence levels over 2007, the public sector stood still. The average absence level across the public sector workers was nine days, compared with 5.8 days in the private sector.

The survey also revealed that of the 172 million days lost to absence in 2007, more than one in ten (12%) were thought to be non-genuine. Two-thirds (65%) of employers think that some staff are using such days to extend weekends. 60% said that fake sickness was used to extend holiday, and a third of employers (34%) suspect that "sickies" are in fact used for special events like birthdays and major football games.

Unsurprisingly, long-term absence (20 days or more) continues to be a concern. Although only 5% of absence periods became long-term, they accounted for 40% of all time lost, costing £5.3bn. Long-term absence accounted for half (50%) of all time lost in the public sector, but under a third (31%) in the private sector.

Rise in employers being fined for illegal workers

According to the BBC, after new fines came into force in February this year for employing illegal migrant workers (click here for a summary of the changes), there has been a large increase in the number of employers being prosecuted.

The BBC has reported that a total of 137 businesses have been caught employing illegal migrant workers since February, and has stated that this is ten times more than the number caught in the whole of 2007, and double the number of prosecutions in the past decade.

National Staff Dismissal Register

Action Against Business Crime have recently led an initiative aimed at reducing losses in the retail sector which are attributed to staff dishonesty. The National Staff Dismissal Register has been developed for staff who have been dismissed for dishonesty and, although already controversial, is expected to go live this month.

The register is intended to hold details of individuals who have been dismissed or have left employment whilst under investigation for acts of dishonesty, including theft of money or merchandise, falsification or forgery of documents and causing damage to company property. 

This information is intended to be shared with other members of the register who are able to access the national system to search for details of an applicant during the recruitment process. It has been reported that a number of major retailers have already signed up.