Firing someone who is often off sick?

[Deleted member 59730]

I have an employee who has worked for me for about 18 months. She has an ongoing history of many absences. Some are genuine but I suspect that some are pushing things. Last Sunday she phoned my admin lady at home and asked for a week off to deal with a personal crisis. (Not the first by a long way) My admin said OK to take Monday off but to come in afterwards because we are very pushed with Easter orders. She came in Tuesday, then not on Wednesday. Now she says she has a doctor's certificate for a week off due to depression.

I run a very small business of 4 workers and we simply cannot afford to lose production. Our orders used to go out within 24 hours but are now slipping to 3 or 4 days because we do not have her working more than about half the time. We had a critical drop in sales last year and we really need to be working at full efficiency this year.

What can I do? Any ideas?

 

[cjd]

You can fire people for being sick just too often but you do need to follow a very careful procedure. You need some professional guidance on this - your employee seems like just the sort to take you to a tribunal if you put a foot wrong.

 

[Podge]

You can fire people for being sick just too often but you do need to follow a very careful procedure. You need some professional guidance on this - your employee seems like just the sort to take you to a tribunal if you put a foot wrong.

Quite agree, but just out of interest is there a formula for working out a reasonable amount of sick time ?

 

[Employment Law Clinic]

Quite agree, but just out of interest is there a formula for working out a reasonable amount of sick time ?

There's a formula often used to help identify when sick leave levels become excessive - the Bradford Factor - but as it is a HR issue, always sensible to let a human make the final judgment.

From the limited information in the OP's case, I'm not sure how much would be sick leave as some sounds like time-off - unpaid, but allowable, normally to make arrangements.

I would certainly recommend a sick leave review, with possible disciplinary action following this, but couldn't advise further without knowing full facts.



Karl Limpert

 

[ccp consultancy]

There are lots of useful tips on two previous posts


http://www.ukbusinessforums.co.uk/forums/showthread.php?t=197525

http://www.ukbusinessforums.co.uk/forums/showthread.php?t=195376

You will need to establish what absences are sickness and what absences are "emergency leave" - and then calculate what the absence rate is.

You will then need to start formal process as described in above posts - If you dismiss now, without having taken any remedial steps beforehand, you are likely to end up having to defend a tribunal claim

HTH

 

[Deleted member 59730]

Many thanks for the comments so far. While some of the sickness seems genuine I am fairly certain that some of it is faked. How would I treat taking Friday off when I know she has been drinking heavily in the pub on Thursday night? How do I treat absence caused by family problems that no one else in the family seems able to deal with?

 

[davidakerr]

It may be worthwhile checking out the FSB. They have specialist employment lawyers who would be able to advise you as to your legal standing and at the same time give you solid advice on Employment issues that could prevent you having to answer a Tribunal charge.

 

[Consistency]

These lot being sick affects our production as a business. It is a pity we are not allowed to be sick on production of their wages. Fair should mean fair.

Sickness cannot be helped in many circumstances but also in many circumstances it can be.

We should go back to a time where if they did not work they did not get paid. It applies to us who run the businesses.

 

[Podge]

These lot being sick affects our production as a business. It is a pity we are not allowed to be sick on production of their wages. Fair should mean fair.

Sickness cannot be helped in many circumstances but also in many circumstances it can be.

We should go back to a time where if they did not work they did not get paid. It applies to us who run the businesses.

Not quite true if you have employee's, they make your wages if you are off ill.

 

[Consistency]

Not quite true if you have employee's, they make
your wages if you are off ill.

If we have employees, they do the job they are supposed to do whether WE as employers are ill or not. If we as employers are ill, they do not do our job as often they cannot and if they do, they get paid for it.

 

[Podge]

If we have employees, they do the job they are supposed to do whether WE as employers are ill or not. If we as employers are ill, they do not do our job as often they cannot and if they do, they get paid for it.

Why do you have a problem with accepting that your employee's make you money, and they must or else you wouldn't employ them.

The point I was making is if your employee is too ill to work and recieves no income in that time then they build up a debt that could cause real hardship to them.

On the other hand If you are off sick, as an employer your workforce continues to generate income for you and you personally are in no way adversly affected.

 

[ccp consultancy]

How would I treat taking Friday off when I know she has been drinking heavily in the pub on Thursday night? How do I treat absence caused by family problems that no one else in the family seems able to deal with?

Family Problems? - depends on who and what the problem is. Time Off For Dependants is unpaid time off to deal with emergencies for dependants - list of what counts as a dependant is here http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10026555

It is only time off to deal with the immediate emergency, not extended time, unless your policy states this. You cannot include any emergency leave in any calculations. So list the absences and put a black line through the absences that cannot be counted. Then you will have a clear list of absences

In terms of genuine / non genuine absences - even if the person really is off sick , you can still commence absence management proceedings to manage unacceptable absences. You are not disciplining them because of the absence per se (ie you are not disputing that they are ill you are simply stating that their absence is now becoming a problem and affecting their ability to perform their contract of employment).

With regards to the being at the pub the night before - how do you know this. Has the employee provided reason for absence. Do you pay company sick pay / or SSP.

My first point of call would be

1) Conduct return to work interview re the current absence
2)Establish what the absent percentage is YTD
3) Informal counselling - listing the absence percentage, stating what you expect to happen - improvements etc.
4) Review in 4 weeks time

 

[David A]

I run a very small business of 4 workers and we simply cannot afford to lose production. Our orders used to go out within 24 hours but are now slipping to 3 or 4 days because we do not have her working more than about half the time. We had a critical drop in sales last year and we really need to be working at full efficiency this year.

What can I do? Any ideas?

Self protection must be your first priority. Firstly, assume the worst, but secondly hope for the best. By this, I mean firstly assume that her employment will be terminated, and that she will issue a claim for unfair dismissal, and that you lose. Secondly, that she will improve her attendance following the advice above.

Employee legislation is so complex nowadays, it is very easy for a small business to fall foul of some provision or other and to find that an expensive lawsuit ensues. After all, I presume that all small business owners are there to conduct business, not become experts in employment matters. My strong opinion is that no small business should ever employ anyone outside the protection of a limited company. Self protection means using nothing other than a Limited Company as a sole trader or partnership risks all their personal assets should they lose an employment case.

If you are a sole trader, immediately set up a limited company and transfer your employees to this. Their terms and conditions will be protected under TUPE so they won't lose out. If you already operate under a limited company, and this has assets, set up a separate one just for employing people. The employing company will then bill you or the main company for employment services.

By doing this, should you lose an employment case and have many thousands awarded to the former employee, the company will just fold as being insolvent due to the liabilities. You then sent up a new company for the remaining employees to be transferred into (and again their rights are protected under TUPE).

 

[Cicero]

There are 2 legal issues in your Q.

1) Is she malingering/lying about her illness?
2) Even if she is telling the truth, can you fire her for inability to do her job due to illness?

1) malingering/lying - She has a doctors certificate and you MUST accept this unless you can get some evidence to disprove it, e.g. she was seen doing something inconsistent with her illness or another more reliable doctor gives a differnet opinion. In practice, this is probably a non-starter.

2) inability to do her job - although this is a reason for dismissal, there is the disability discrimination law to consider. In practice, if an employee takes long periods off sick, then an employer wishing to dismiss must resolve the conflict between his business needs and the interests of the employee in a manner which a reasonable employer might have adopted. He will have to show that he carried out an investigation which meant that he was sufficiently informed of the medical position, e.g. consulting the employee and her doctor, maybe asking the employee to undergo a medical examination with a specialist etc

The evidence you have provided does not give a basis for dismissal.

 

[Consistency]

Why do you have a problem with accepting that your employee's make you money, and they must or else you wouldn't employ them.

The point I was making is if your employee is too ill to work and recieves no income in that time then they build up a debt that could cause real hardship to them.

On the other hand If you are off sick, as an employer your workforce continues to generate income for you and you personally are in no way adversly affected.

Have no objection to acknowledging the fact that employing can generate money but why do you seem to accept that employing can often cost us money?

If an employee is too ill to work then of course they can get into debt if they have no income. If an employee does not turn into work then we as an employer have to arrange cover and possibly pay overtime and agency fees and unless the company is well off, this can break the balance. Did you know that there are small businesses who run and are in debt?

 

[Deleted member 59730]

Many thanks to all who offered advice and information here. I have now had the 'back to work interview' and hopefully things will now improve.

 

[APC Nexday Overnite Ltd]

I'm sorry if anyone else has mentioned this but ACAS seem good to ring on issues like this and most of all they're free!

 

[Consistency]

Good for employees - shame there is not one for employers!

 

[Petertkp]

Talk to her she may leave voluntarily if she knows she is putting pressure on the company and the other staff?

 

[APC Nexday Overnite Ltd]

Good for employees - shame there is not one for employers!

We're an employer and ACAS are normally good for general queries- definitely worth giving them a ring and seeing what advice they are able to offer.