Staffing Problem

[switch484]

Hi, I need help with a problem that I have with a member of staff. This lady has worked for us since December 2004, and since then she has had about 6 weeks off work sick, not all at once but over a period of time. She has endometriosis, and walks around the office clutching a hot water bottle and is hunched over when she walks and when she is sitting at her desk. She came back to work on Tuesday for the first time in two weeks and could hardly walk, so I got a taxi for her and sent her home. She went to the doctors initially and was told that she needed to go into hospital and have a laparoscopy to find out exactly what was wrong. The waiting list for this is about 6 to 9 months. Since then she has been constantly ill and went to her doctor again and was told that she would advise her to go to Casualty and she will be seen as an emergency , but she has refused as she said that after she was prodded and poked around by her own doctor she was in so much pain that she is not going to put herself through that again. Obviously that is a choice only she can make but where does that leave us as her employer. When she is in the office she can't concentrate on her work, and spends most of her time with her head on the desk. She has come into work today and said that she feels that she cannot continue to work full time and wants to reduce her hours. This is something that we are not able to do at the present time and need to have someone full time. (not that she is here much anyway) What I want to know is what can I do, I pay her full sick pay and the fact that she is not working is costing me money and is causing problems within the company as other people are having to cover her work and are not happy with this, Please help.

[Stephen]

Hi there. Sorry to hear about your difficulties. We can certainly offer some suggestions of how to resolve this matter, but your best course of action may depend on what is in any policies/procedures & employment contract you may have, so have sent you a PM.

Best wishes,
Steve

[Jayne]

Hi,

We have had this problem with some of out staff in the past. It is really hard to sack them. Each case is different, normally you can sack someone within the first 12 months without getting in trouble, but it is different when they are i'll. I phone ACAS up and tell them all about it and they tell you your rights and what to do.

Good luck with this (Staff are Pants)

jayne

[switch484]

I couldn't agree with you more, business would be so much better without customers and staff. Thanks for the advice.

[americatelefon.com]

Hi. I've heard about a similar situation. There was a lady, who was often ill and skipped work a lot. she got fired and the company had a lot of problems with it.
I think you should hire an assistant for her if u r able to. Then at least there'll be a person who can help her.

Regards,

[Stephen]

Interesting idea americatelefon! You're right though in that it can be a minefield. In particular with something like endometriosis, it can be considered a disability, so in the UK at least the disability discrimination act needs to be considered. As such, the length of an employee's service doesn't in itself provide a route out. Sex discrimination could also be argued for an issue that (almost exclusively) only affects women.

That said, there are options, but they can depend upon what's in a company's procedures (absence and sickness, conduct/performance etc) and also what's in the employee's contract of employment.

As ever, life is much easier with good documentation in place!

[SillyJokes]

It must be very frustrating.

I appreciate it is her choice but surely she should get the help she needs?

Otherwise she seems to be incapable of doing the work she was hired to do and is not doing all she can to get herself better.

That does not sound fair.

If it was your responsibility to provide care you would jolly well have to but she has no responsibility to make reasonable efforts to improve her health?

I would imagine the number of employees you have would have a bearing on what you can do to resolve this issue.

[switch484]

In reply to Americantelfon's response, I can't afford to pay for an assistant as well as her wages. If I could then there wouldn't be a problem with her going part time. The Job that she does is not a job that can be shared it is quite complex and you need to know what is going on at all times. (this is why with her not being here it is causing so many problems within the office and for customers!).

In answer to sillyjokes, questions we are only a small company with 6 employees so every member of staff is a key member.

I agree with what was said about the fact that if we had to provide assistance to her she would be jumping up and down making sure that we provided it. The employment law at the moment seems to forget about the employers and what we have to go through. Her absence is making my business suffer and causing unrest with her colleagues, and most of all our customers.

[Richard Conyard]

You need someone that knows HR a little more, but here are a few steps.

Check your employment contract with her, the level of illness is obviously unacceptable.
Request a doctors certificate
Check if you're entitled to claim any SSP (you will need the cert for this)

One last thing, make sure you have records of absence, dates, times, days and half days.

[bwglaw]

I have had a quick read of your post. It may appear that you, as the employer, may have a duty to make reasonable adjustments, if the employee meets the definition of disability within the meaning of the Disability Discrimination Act 1995.

This is an area of law that I practice and specialise. If you would like assistance please do not hesitate to contact me at legal.services@handsongroup.co.uk

I provide advice, assistance and representation to our other division's clients, Hands On Access. Their website is http://www.handsonaccess.com and they specialise in the DDA 1995. If you put a legal question to them it will come to us.

[switch484]

I would hope though that for her to be classed as disabled or with a disability then she has to have been seen by a doctor and diagnosed or at least seem as though she is doing something to help herself, as at the moment she is refusing to be seen because the last time she did it hurt. It seems that we as employers have to pull out all the stops but the employees don't have to do anything.

At this present moment in time she is incapable of doing her job, but it seems my only choice is to let her continue or get someone else in to work with her. Either way this is at the expense of my business.

[bwglaw]

As the employer you would be entitled to request a medical opinion i.e. medical certificate from her GP, or failing that, give notice in writing that unless the employee can prove her absence then you, as the employer, will ask a GP to carry out an assessment. The employer will meet this cost.

Additionally, state that you as an employer are keen to identify any reasonable adjustments in the event you (the employee) has a disability or a long-term condition. If you (the employee) has a disability or a long-term condition that may affect your ability to carry out any duties we will contact Access to Work for an independent assessment who will also advise on any reasonable adjustments.

You can put in that letter that by refusing to participate may lead to disciplinary action, which may result in dismissal.

I should point out that a 'reduction in hours' can be a reasonable adjustment. In any event, avoid dismissal until you have shown that you have carried out your duties etc. Get advice before dismissing the employee.

The above is just guidance and not legal advice and I can only give advice upon the full facts and circumstances by email or any other appropriate means.


I would hope though that for her to be classed as disabled or with a disability then she has to have been seen by a doctor and diagnosed or at least seem as though she is doing something to help herself, as at the moment she is refusing to be seen because the last time she did it hurt. It seems that we as employers have to pull out all the stops but the employees don't have to do anything.

At this present moment in time she is incapable of doing her job, but it seems my only choice is to let her continue or get someone else in to work with her. Either way this is at the expense of my business.

[Richard Conyard]

You could look towards a company like:

http://www.pinnacleperformance.co.uk/

The price per month normally isn't too harsh and you're only a phone call away from getting expert advice.

[bwglaw]

Not trying to tout for business but the company you mentioned are 'Generalists' that they give general advice. We specialise in the DDA alone. I personally worked for a national disability charity in their legal department bringing cases on the DDA

It has been said that disability discrmination law is the most complex of all forms of discrimination and requires specialist knowledge.


You could look towards a company like:

http://www.pinnacleperformance.co.uk/

The price per month normally isn't too harsh and you're only a phone call away from getting expert advice.

[Richard Conyard]

Not trying to tout for business but the company you mentioned are 'Generalists' that they give general advice. We specialise in the DDA alone. I personally worked for a national disability charity in their legal department bringing cases on the DDA


Hands, I may have got this wrong, but I thought the point of this forum was along with helping people touting for a little business now and again ;-)

You're the expert here, but I would have thought it tough to apply the DDA here. It is an illness rather than a disability, it's unsubstanciated technically (no doctors note), and from the sounds of things it was undeclared before joining the company. I know employment law has now shifted drastically in favour of the employee (to much IMHO), but surely there has to be a work around here.

[Stephen]

Illness vs. disability can be a difficult discussion, but the DDA states (in addition to other considerations) that if the adverse effect has lasted or is likely to last for more than 12 months, a person can be considered disabled (subject to other clauses).

[bwglaw]

Illness vs. disability can be a difficult discussion, but the DDA states (in addition to other considerations) that if the adverse effect has lasted or is likely to last for more than 12 months, a person can be considered disabled (subject to other clauses).

Correct

In response to Richard's points. A prudent employer should not make assumptions but act reasonably to avoid costly litigation with a potential claim for disability discrimination. The employee does not have to declare a disability or long-term condition but it is a question of whether the employer ought to have known. In this particular case maybe not but the employer is NOW aware of the 'condition'. The employer should get its own GP and write to the employee that they will make an assessment for any reasonable adjustments.

If the employer has done what is reasonable in the circumstances then the employee is not likely to succeed in a claim for disability discrimination

[switch484]

Can you please confirm that it is within my rights to send her home and not come into work until she is able to do. She has requested that we not ask her how she is or if she is ok. But I cannot continue to work while she is at her desk either Crying because she is in pain, or with a glazed expression and be virtually out of it because of the strength of the pain killers that she is taking.

I don't want to send her home and then find out that I am discriminating against her, or that she feels that I am discriminating against her but there is no point her being here if she is unable to do the work.

Just to confirm her condition has not been diagnosed by a doctor yet, she is waiting for an exploratory operation to find out, but as I said this is a 6 to 9 month waiting list. I cannot go on like this until then.

[Stephen]

Depending upon how your internal policies and procedures are written (probably the sickness/absence policy specifically), you should be able to send her home, and subsequently conduct a return to work interview to discuss with her your concerns and her well being.

In a general sense, if an employee isn't prepared to discuss issues affecting their performance/attendance, following the disciplinary procedure should be considered.

Don't get too disheartened - whilst we know how unpleasant these issues can be, they can be resolved.

[Jayne]

ACAS cost nothing to use, it is on the internet too. Try these first before paying for advice. Let us know how you get on.

Bye for now

Jayne

[bwglaw]

I suggest you contact us at legal.services@handsongroup.co.uk and we can look at the matter. I would be happy to give an assessment of the situation free of charge.

As a lawyer I tend to look at how the law applies. Regardless how policies and procedures are laid out the law prevails and some policies and procedures can in themselves be discrimatory. No policy or procedure can evade the employer of any statutory duty or any liability.

Can you please confirm that it is within my rights to send her home and not come into work until she is able to do. She has requested that we not ask her how she is or if she is ok. But I cannot continue to work while she is at her desk either Crying because she is in pain, or with a glazed expression and be virtually out of it because of the strength of the pain killers that she is taking.

I don't want to send her home and then find out that I am discriminating against her, or that she feels that I am discriminating against her but there is no point her being here if she is unable to do the work.

Just to confirm her condition has not been diagnosed by a doctor yet, she is waiting for an exploratory operation to find out, but as I said this is a 6 to 9 month waiting list. I cannot go on like this until then.

[Jayne]

Nice man..Mr from Handsongroup. Free help! Your rewards await in heaven!

Best Wishes

jayne

[Julie]

Hi 'Switch'

I notice you're in Hove. There's a local company, 'The Employment Law Advantage' (www.elaltd.co.uk) who wrote an excellent 'Expert Opinion' page on sickness absence for our last year's pilot Brighton & Hove edition. If you like, I can pdf the page and send you a copy. It's sets out the steps you should take and might be a help for you...

Let me know
Julie :D

[Alpha]

I'm not going to post about the HR/Legal aspects but Endometriosis is an illness which many women can have and it ranges from no symptoms at all to extreme pain and debilitation. The latter unfortunately have very little choice but to have the womb scraped to remove it but it is quite likely to re occur when a hysterectomy is the only permanent answer.

So I know it is causing you staffing problems but also try and understand the situation from her point of view. :)

[Cornish Steve]

What amazes me about this message thread is that no one has expressed horror that the waiting list for treatment is six to nine months!

Switch, I admire your sensitivity in dealing with this matter. If only more people in the world had your good conscience.

[switch484]

Alan, I know exactly what my member of staff is going through I have just returned back to work from 8 weeks off after having a hysterectomy for the same thing. The difference between me and her is that I was not prepared to put up with the pain and did something about it.

Steve, Thanks for your comments

[fastfences]

Hi Switch,
Given that you have a legal responsibility for your employees under Health and Safety legislation, I'm sure that you want to do the best for your employee and ensure her speedy recovery from her 'condition'. I believe that you can send her to a doctor of your choice who will provide a report of what you can do to rehabilitate your employee.

There has been history of persons who are, perhaps, not genuinely ill, subsequently resigning. Coincidence?
Cheers, Nigel

[fastfences]

What amazes me about this message thread is that no one has expressed horror that the waiting list for treatment is six to nine months!

Of course we haven't - because six to nine months is seen as 'acceptable.'

Cheers, Nigel

[Cornish Steve]

What amazes me about this message thread is that no one has expressed horror that the waiting list for treatment is six to nine months!

Of course we haven't - because six to nine months is seen as 'acceptable.'

Cheers, Nigel

Why?

[Richard Conyard]

Because people are used to it Steve. It's amazing what people can get used to :S

[fastfences]

Hi Steve,

Yeah, I echo Richard. 'The way it is', whilst not necessarily right, is often accepted as 'the norm.' If you attend a hospital as an 'outpatient' (accident/emergency) you can wait up to 4 hours for treatment.

Pre-election promises often inspire us to vote for a candidate who 'promises' more money on health care, more hospital beds, more money for nurses, etc. I know you know where this is going - broken promises. So do you make waves about the broken promises? To whom? Where does it get you? You just wait for the next election and the circle continues! But then the powers wonder why the electoral 'turnout' is poor! Because we've all been dudded. You're lucky to have George Jnr. He wouldn't be like that!!

Did you know we have over 20,000 Filipino nurses in Britain because the wage and conditions are not see to be good enough for Brits?

Anyway, don't want to give you too much to reply to. Your 6 kids may need some attention! See ya Steve, and 'have a nice day!'

[Cornish Steve]

Did you know we have over 20,000 Filipino nurses in Britain because the wage and conditions are not see to be good enough for Brits?

I had no idea! Mind you, I have enormous admiration for nurses no matter from where they originate. It's not a job for the faint of heart. Clearly, they're not in it for the money.

[ebonybailey]

I'm no expert but if she can't do the job she was employed to do then you are in a position to let her go. As you pointed out the position was a full time one and she struggles with that, I don't think any court in the country would hold any complaint up in court.

[coxadmin]

What amazes me about this message thread is that no one has expressed horror that the waiting list for treatment is six to nine months!

Of course we haven't - because six to nine months is seen as 'acceptable.'

Cheers, Nigel

Why?

Hi Steve

Sadly, that is the state of the NHS - it's certainly not what it used to be. My parents are of the opinion that the NHS is great for emergency care but you need private health insurance for long term illness.

[TheOffice]

Alan, I know exactly what my member of staff is going through I have just returned back to work from 8 weeks off after having a hysterectomy for the same thing. The difference between me and her is that I was not prepared to put up with the pain and did something about it.

Steve, Thanks for your comments

A hysterectomy is not a cure for endometriosis, and neither is scraping the womb, since the tissue exists outside the womb.

I'm actually suffering from this disease and facing discrimination myself from my employer, and came across this thread while searching Google. I don't want to 'put up with the pain' but I won't have my womb removed when it's not a cure and I'm only 26. A previous employer actually suggested this to me once, which is beyond ridiculous.

I'm sorry that this is not entirely 'on topic' and that this is an old thread, but I feel that there is already enough misinformation about this disease online, so I comment whenever I can with the reality. This can be an extremely debilitating condition which is incurable, so yes it can be covered by DDA. The misinformation about this disease is part of the reason that sufferers face so much discrimination in the first place.

[sjbeale]

I would advise waiting for her sick pay to run out then leave her on the books but pay her nothing. You should get an occupational health report to determine whether she is covered by the DDA. Depending on the findings you could then possibly consider an ill health termination with the guidance of occ health. If you then have a tribunal claim you can show you took reasonable actions. I can recomend someone to do this if you pm me.

[blackandwhite1986]

What a nasty situation for all involved.

Despite my usual "hard line" stance, this is indeed a case where sensitivity is the order of the day.

My first port of call would be ACAS to find out where both you and your employee stand.

Quite clearly she is incapable of working as she is so crippled by pain. I would also be concerned (not only as an employee but as a human being) as to her safety when coming to and from work (does she drive etc) and the fact she obviously has a very poor standard of life at the minute.

If it is possible to "force" her to a GP then maybe some tougher action is what is needed. I hate to say it, but there is only so far you can go within the confines of your business. If someone is not willing to help themselves then perhaps it is now down to you to up the ante.

[noidea]

Old post from 2005 people!!

[tc36]

hello there
I am a sufferer of endometriosis and upon looking for advice i came across this thread.
i thought i could try to offer some advice about what the o/p was asking about their rights as an employer who has a woman with endometriosis in their company.
endometriosis, in case you did not know, is a crippling disease of the womb and is NOT curable, but IS treatable- i.e. can be managed up to a certain point, depending on how bad the level of the disease is.
It is a common disease found in women as much as diabetes is but is unfortunately, not as widely known.
The lady has rights under the DDA of 1995 if her condition is causing her so much pain that it is affecting her ability to mobilise, concentrate, understand and/ or learn, and if it affects her ability to lift, move or carry everyday items.
You would be doing yourself a huge favour if you swotted up on information about this condition by looking at such websites such as endometriosis uk and/ or endometriosis.org.uk (you are not alone!)
and the she trust website.
all three websites give information that are invaluble to everyone.
as for employee/ employer rights, I can tell you this much:

I have suffered with this disease for over 18 years and it has always affected my attendance record, which was/is unavoidable in my condition.
In fact because of my condition, which is also suspected of causing my sciatic type back pains and coccydynia type pains, and also severe pelvic pains, I have been signed off sick since May this year.
I worked for the company I am presently with for four years and apart from the attendance record (which was beyond my control due to the condition), I have a good rapport with the firm and up until the disease severely affected my work I was a very hard worker and always aimed to please.
I am having the hysterectomy in two weeks time which I had to wait two years for, for certain reasons due to the treatment I have had to recieve over time.
I had a Laparoscopy that went wrong two years ago and was forced to be off sick recovering from it for two months.
The company I work for have, since May, made reasonable adjustments as much as they could, such as reducing work hours and also allowing time off for treatment and recovery. There is another reasonable adjustment you could make, which is a bit hard for me to describe; the best way to put it is this, if the lady is clearly suffering with pain at the time, at first give her some 'break' time so that she can make sure she can give herself as much comforting and pain relief as she can (of course within reason) so that she can feel able to work again. What I mean by 'break' time is like an extra teabreak/ 10-15 minutes, maybe 30 max so that she can do things like relaxing for a moment or take necessary pain relief.
However if she is drugged up to the eyeballs with pain relief already, she should not be there! If there is a danger that she could do herself harm then she should be resting at home.
But then there is the DDA issue isn't there.
Speaking of which, I think I read on the government website something about employers with less than 20 employees, but not sure what so look it up.

I'm afraid that taking time off for recovering from the condition, or treatment for it, is within our rights.
The lady cannot help needing time off for her condition and should be asking her GP for documental proof that this is what is causing her absence. It is wise for her to be advised that she should have an amicable arrangement with the company that she is advising them how the condition is affecting her and what treatment she is recieving.
She is not however compelled to do this but it is advisable for her to do so if it comes to the point where the company feels she needs time off to recover, or if any legal issues came up.
If she provides adequate factual documents about her condition and that she is doing something about it, it is within the best interest of both parties.
For example, I was no longer capable of coping with the hours let alone the job itself at one point because of how the contidtion was affecting me- but because I had always informed the company of what, when and why, they agreed with me that it was wiser for me to be signed off sick until I was fit to work again.
The operation I am about to have is essential to my health needs being rebooted to try to get back to normality.
I am having a meeting tomorrow about how my future will stand as I came across a right cracker.
All the time I worked for the employers I am with, when they took over the company I was aleady working for I aleady had a contract with the previous employers.
The only contract that I have and the company I am with have are given me are the one and the same which means that the contact ran out 3 years ago.
So even though I am under the protection of the DDA, any rules set by the employers won't hold because I never rcieved a re-newed updated version from them. Which I guess that anything they try to chuck at me from the contract is all now null and void.....
Tomorrow is going to be an interesting day!