After reading the recent report on a pass employee at Xplore named Jane I thought it would be wise of me to research on the current problem that has occurred. I have been advised by Xplore that Jane took maternity leave and gave the date of return on the 22nd January 2005, unfortunately Jane was unable to return to work on the given date (22nd January 2005) because she was suffering from post natal depression which some times does occur after pregnancy. Due to this Jane extended her leave beyond the maximum period of maternity leave under current legislations.
Under Jane’s contract of employment she had to attend the companies doctor for a general health examination, after the examination the doctor Jane sore would not discuss their findings nor the content of the report that was being prepared and sent to her employer. Whilst still on sick Jane received a letter from Xplore stating that she was redundant on the basis on the length of absence and the doctor’s report.
The problem at the moment is that Jane still hasn’t received the doctor’s report from the examination and insists that she has been unfairly dismissed. With the above facts I have been given I can only state what the law says about an employees/ employers rights and their rights in their contract that’s why I have provided in this report some legal laws and legislations of an employees/employers rights and contract rights. I can also personally give you my legal opinion on the matter that is backed up with UK laws and legislations.
With the doctors report its is prohibited by the UK Data protection laws that any paper based important documentation that involves an individual or business is handed over to the individual or business in question. This is done to protect the privacy of the person or business selected. This law is also protected by the data protection commissar. With this current law in place at the moment Jane is unable access the doctor’s report on the basis that the documentation is not computerised but paper based, in 2007 the UK Data protection act 1998 will under go the European data protection act which means any personal data collect on individuals and business such as important information and in this case medical reports and documents will have to be computerised as well as paper based, this means that if Jane still wishes to view her medical report in 2007 she will be able to access it legally due to the new European data protection act.
Also in question is the fact that Jane feels she has been unfairly dismissed. I cannot personally determine whether Jane was made redundant due to the medical report or if indeed she was unfairly dismissed because I do not have the authority to access such documentation, but I will provide relevant employment laws which could state her redundancy or her unfair dismissal. If Jane has been made redundant due to the medical report this would have to be on basis of capability and in some form of misconduct. If the medical report shows evidence that Jane is incapable of doing her job to satisfactory level due to depression then indeed Jane has been fairly dismissed.
In the word of dismissal through misconduct this would only apply to the lengthily absenteeism through her illness. But dismissal through misconduct is often investigated so proof of Jane’s absenteeism is needed, but it is vital that you are aware that this kind of dismissal is serious in its matter and its vital that you are sure that dismissal is based on this fact as major consequences will occur if misconduct has been used inappropriately on the employee.
If Jane were to take her dismissal unfairly she would be able to place this case in two legal categories. The following are the categories in question with an explanation of why? Sex Discrimination Why – Jane could argue that Xplore was performing indirect discrimination because they are discriminating about the fact that Jane is unable to carry out particular requirements due to the fact she has had a baby and is now suffering from postnatal depression. This would be classed as sex discrimination because a man would not suffer from such an illness as women would.
Automatic Unfair Dismissal for pregnant employees Why – It is stated in this act that “(a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy) This act clearly states unfair dismissal due to pregnancy or any other related problems, in Jane’s case is would be the connected reasons due to her post natal depression.
I have clearly stated the acts that could fall in Jane’s Xplores situation but if I was to be personally honest if the medical report states Jane is incapable of working then she has been made redundant on the fact that she is unable to work in the current condition at work, but if the medical report states otherwise then Jane has been unfairly dismissed on the basis of her pregnancy. If Jane seek legal advice because she feels she has been unfairly dismissed then this case would go to a tribunal because tribunals deal with work related incidents and legal problems.