The following details have been provided by PCS DWP Group:

New CSHR Legal Advice Process for CSHR Casework Managers

New CSHR Process for Legal Advice

Civil Service HR Casework has issued guidance for CSHR Caseworkers to take legal advice from the Government Legal Department (GLD) for DWP Attendance Management action “where the Business are considering referral to the Decision Maker (DM) in cancer cases/post cancer cases (irrespective of the absence length).This process will also apply to DM’s who have received such cases where the Business has not sought legal advice before referring the case to them.

CSHR classifies cancer/post cancer cases as a complex case

DWP managers should take advice from CSHR Casework for complex cases. Calls to CSHR Casework for advice in in cancer cases/post cancer cases at the Referral to the Decision Maker, or Decision Maker, stage of DWP Attendance Management procedure will be recorded by CSHR as a complex case. The CSHR Casework process for such cases includes:

• The caller (Business contact) should be asked to consider our advice carefully and to come back to the HR Consultant the next day to discuss their decision. The HR Consultant should set a BF for the following day to chase the Business up should they not contact the HR Consultant. 
  

• If the Business (or HR Consultant) calls back and the Business is still considering referral to the *DM, they are to be advised that we are now required to refer the matter for legal advice. The HR Consultant must ask the business to provide their rationale for considering referral to the *DM. This information will be included with the referral. No further action should be taken by them until legal advice has been received.

Safeguard against unfair dismissal and disability discrimination 

This CSHR Casework process for taking GLD advice in cancer cases/post cancer cases provides a safeguard against unfair dismissal and disability related discrimination. This process was introduced out of a case where HR and GLD intervention was significant in reaching a decision to continue to support a cancer related absence.

Equality Act 2010 and Cancer

Individuals automatically meet the disability definition under the Equality Act 2010 from the day they are diagnosed with cancer. This puts a statutory responsibility on DWP as an employer to try to help and support employees with cancer. Support may include, where reasonable, work related changes before, during and after the employee’s cancer treatment. Employers have a positive duty to make reasonable adjustments for employees with disabilities.  A reasonable adjustment under Attendance Management Procedure may include a Disabled Employee’s Trigger Point (DETP) to provide support for disability related sickness absence. A person who has been diagnosed with cancer continues to be covered by the Equality Act for the rest of their working life. This protection applies even if treatment is no longer needed.

Discrimination arising from disability

The Court of Appeal Judgment (section 79) in the case of Griffiths v DWP, pointed to the importance of the extra protection provided under Equality Act 2010 (section 15) prohibiting discrimination arising from a person’s disability:

79. …the positive duty to make reasonable adjustments is only a part of the protection afforded to disabled employees. The fact that the employer may be under no duty to make positive adjustments for a disabled employee in any particular context does not mean that he can thereafter dismiss an employee, or indeed impose any other sanction, in the same way as he could with respect to a non-disabled employee. The employer is under the related duty under section 15 to make allowances for a disabled employee. It would be open to a tribunal to find that the dismissal for disability-related absences constituted discrimination arising out of disability contrary to section 15. This would be so if, for example, the absences were the result of the disability and it was not proportionate in all the circumstances to effect the dismissal.