Bereaved & off sick....Can I dismiss?

[Kenneth francis]

I am a small retail business with 3 staff. One has recently given birth (stillborn) and has been signed off sick for the past 6 weeks due to depression. She is unable to say when she might return. We are struggling at work as her work is not being attended to.

I have suggested we make some changes at work, (particularly to keep her limited to office work and not to deal face to face with customers), I have also suggested she return part time on days and times of her choosing, until she is ready to return full time. This will help us at least not getting too far behind with her work.

She has refused to return and says she will continue sending in her doctors notes. This implies she expects to be off for another two months at least. We cannot afford to be short staffed at Christmas and there is nobody else in the business that can do her work. Of course if she hasn't returned by October, she will have been sick for three months and presumably if a depressive illness is not recovered by then, she might take many months more off.

We were expecting to advertise for a full time replacement shortly as she had advised us she would not be returning after maternity leave. But now, we just have a sick person who is incapable of performing and cannot let us know when to expect her back.

It makes it difficult to recruit a replacement as we don't know yet whether to seek a permanent replacement or just wait a few more weeks in the hope she returns. We cannot make use of a temp. Or, we wait until she decides not to return, but that could be well after Christmas.

We can't wait that long.

How should I dismiss her or get her back to work? She has been with us a little over a year.

Having read the above, it almost sounds heartless to think we would dismiss someone due to the loss of their baby, but we cannot afford the loss of her work for too much longer. I need to hope she returns soon, but plan for the worst and dismiss her in a couple of months if she still cannot return.

 

Can't you get a temp.

 

[Kenneth francis]

We are a specialist retailer. A temp is too general and unlikely to have product knowledge, and almost a pointless solution. It doesn't answer the problem.

 

[ethical PR]

What do your contracts say about long term absence? If you haven't done so already, then get advice from an HR who has employment law experience or an employment lawyer to help you manage this and support your staff member.

It's a truly awful experience for anyone to go through and unsuprising that this has resulted in depression. Hopefully she is getting the support and counselling she needs.

If you were expecting to be able to recruit a full time replacement, why can't you recruit a temporary one? I appreciate you are a specialist retailer, but it's difficult to believe that in a recession, there's absolutely no-one who could do this job on a temporary basis.

 

[Kenneth francis]

A permanent replacement would probably take a couple months to find, then a months notice. A temp might take the same to find. I need a faster solution.

 

[Newchodge]

A permanent replacement would probably take a couple months to find, then a months notice. A temp might take the same to find. I need a faster solution.

There is no faster solution. Recruit a temp now, via a temp agency if necessary. That gives you time to find out when she may return and covers you for Christmas.

If she started after 6 April 2012 she needs 2 years' service before she can claim unfair dismissal, however as her absence is pregnancy related dismissal would be a dangerous (and callous) step to take.

You cannot get her back to work until she is ready, and forcing her back early, even if it were possible, would be most likely to result in her going off again.

How have you covered her maternity leave?

 

[AlexandraS]

I may well be wrong, but I think stillborn is still considered for full maternity leave.

 

This may help.

http://www.uk-sands.org/support/rights-and-benefits.html

 

[arcon5]

How did you plan on coping when she was on maternity leave if she is so vital?

Sorry to be frank but can't believe a person can be so insensitive and self consumed. Lets hope you never have any traumatic experiences in your life and need time to recover.

Find somebody to replace her if you know she isn't coming back, in the mean time give her space to grieve.

 

[Kenneth francis]

I was planning to recruit a permanent replacement as the staff member said she would not be returning to work after her maternity leave. As for being callous, I am not trying to be so, but I have lost 30 % of my work force in one go, and simply need to make plans now. My shop now has two staff, that leaves one staff for days off and sickness. I can of course seek a temp, but it seems none of the agencies have people on their books that have product knowledge. Sales assistants which supermarket experience don't quite fit the bill. I suppose I am asking how long does it take for a failed pregnancy to recover from? And without any idea personally, believe a couple months should be sufficient, but four months seems too much. Either way, the pressures on a small business and being unable to seek a qualified replacement in time for Christmas seem quite harsh. By suggesting a gradual return to work , I thought, was a caring solution, not callous.

 

[AlexandraS]

Please read the link above. She is entitled to 52 weeks maternity leave.

 

[David_CI]

It's a pig of a situation all round.

Getting professional UK employment law advice sounds like the right route (likely cheaper than paying out compo later)......am no expert (am not even in the UK proper!), but my take is that the road to hell (£££ and aggro) is paved with good intentions - and you could be caught out by being too nice / trying to do the "right thing".......with no one ending up as a "winner" .


What about employing an additional permanent staff member (not a replacement) - and then (subject to what the Employment advise says) offer her reduced and flexible hours for whenever she wants to return to work, if she returns within 6(?) months (likely you could find a use for an experience extra set of hands - and if she does come back would likely be a valuable (and loyal?) member of staff (good employees do not grow on trees).....and you can up her hours back to full time later, if possible.

I am way outside my comfort level here - but the above strikes me as a decent way to proceed.......but only if you can afford to take that route (the business going broke and several other people losing their income does not gain anything for her).

 

[Employment Law Clinic]

I am a small retail business with 3 staff. One has recently given birth (stillborn) and has been signed off sick for the past 6 weeks due to depression. She is unable to say when she might return. We are struggling at work as her work is not being attended to.

The first thing you need to clarify is what happened with the maternity leave? As advised above, the employee was entitled to maternity leave (subject to providing appropriate notice for this – I assume she did on the basis you were planning for her to be off), so has this leave now ended early (for whatever reason), has she actually returned, even briefly, after the commencement of maternity leave?

We were expecting to advertise for a full time replacement shortly as she had advised us she would not be returning after maternity leave. But now, we just have a sick person who is incapable of performing and cannot let us know when to expect her back.

It makes it difficult to recruit a replacement as we don't know yet whether to seek a permanent replacement or just wait a few more weeks in the hope she returns. We cannot make use of a temp. Or, we wait until she decides not to return, but that could be well after Christmas.

We can't wait that long.
How should I dismiss her or get her back to work? She has been with us a little over a year.

A permanent replacement would probably take a couple months to find, then a months notice. A temp might take the same to find. I need a faster solution.

Where did you get to in making arrangements for a permanent replacement? Why not continue with this now, and if the sick employee does return, you can dismiss the new one – or maybe the current employee.

You don’t have any fast solutions, as you have no option that can force her back to work, so you either need to recruit someone else, or manage without this employee at least for a little while – how long it would take to fairly dismiss if necessary, which shouldn’t be excessive if an option, but probably can’t be done without some formalities.



Karl Limpert

 

[Kenneth francis]

Maternity leave is not available for stillborn babies. The baby was only 22 weeks. A permanent replacement was being sought assuming the pregnancy was going normally. But the person wanting the job as a permanent staff member is likely to be a totally different person than the one who accepts a temporary position while waiting for the sick person to return. Recruitment is therefore more difficult. Made worse assuming the likely new staff member would probably hand in their notice of a perfectly good job, to come to me, only to be dismissed once the original worker returns. I believe making it easier for the worker to return with flexible hours etc is the fairer way, and forget recruiting. But only if the sick worker is open enough to the suggestion, and not simply taking advantage of a few months off work over Christmas.

 

[Employment Law Clinic]

Maternity leave is not available for stillborn babies. The baby was only 22 weeks.

Maternity leave is available for stillborn babies... but not in this case – the pregnancy had not progressed sufficiently to provide for maternity leave (at least 24 weeks).

I believe making it easier for the worker to return with flexible hours etc is the fairer way, and forget recruiting. But only if the sick worker is open enough to the suggestion, and not simply taking advantage of a few months off work over Christmas.

I have suggested we make some changes at work, (particularly to keep her limited to office work and not to deal face to face with customers), I have also suggested she return part time on days and times of her choosing, until she is ready to return full time. This will help us at least not getting too far behind with her work.

She has refused to return and says she will continue sending in her doctors notes. This implies she expects to be off for another two months at least. We cannot afford to be short staffed at Christmas and there is nobody else in the business that can do her work. Of course if she hasn't returned by October, she will have been sick for three months and presumably if a depressive illness is not recovered by then, she might take many months more off.

If she’s not willing or able to return to work, as you implied in the opening post, why do you think this might be possible now?


In answer to the thread title, I would say yes, you could dismiss. Caution would be necessary to ensure this wasn’t for a pregnancy-related condition, but as the employee is not in the “protected period” – normally the time from conception to the end of maternity leave – I would be of the view that dismissal would ultimately be an option, and the risk may motivate her to return sooner if she is simply taking advantage (which is a crass conclusion to consider without speaking to her). A tribunal claim could be expected as par for the course, but I'd be minded from the limited information available to believe this could be defended successfully (read this as saying you should take professional advice to complete the formalities, as while I believe you could dismiss, caution would be sensible).



Karl Limpert

 

[bovine]

Why not just employ a new permanent member of staff and keep the bereaved staff member in their current situation. If they decide to come back, you can then make the decision to keep one of them and dismiss the other, as they are both under two,years.

Remember, if you dismiss the bereaved one, it could become a pr nightmare. Even though technically correct in a dismissal, it does come across as incredibly callous. Losing a baby at the stage is incredibly traumatic for the family - do not underestimate the impact this has.

In all likelihood, she will be looking to get pregnant again soon, so you are better placed to take on full time member now.

 

[arcon5]

As Karl said, the risk of dismissal may scare her in to coming back, it may also be the thing that pushes her over the edge. No baby, no job, unstable emotionally - could be the thing that ultimately sees her loosing her home and leading to a really bad place in her life. It happens! This kind of trauma can really destroy a person, especially if this is a first child. I certainly wouldn't want to be the catalyst for this.

I can tell you, a miscarriage, even in the first trimester is a really painful experience. Anybody that's been through it will know this. So to have a stillborn well in to the second trimester must be such a heart breaking experience. Pregnancy alone throws your hormones out of whack, this kind of trauma must really hurt.

To you this may be something that happened nearly a couple of months ago, to her it will be her life crashing down just last month.

I think sometimes in life we need to put people first and it just seems like you have no compassion for a fellow human being who is most likely suffering dearly. Instead even saying you don't want her to use it to her advantage to bunk off at Christmas. She will probably be reminded of the pain every time she walks through her front door and sees clothes and toys around the house and possibly a nursery in progress and a pregnancy journal on the book case.

By all means if the months start flying by you should take action, but I don't see why you can't put your contingency plans in place for the time being and give her some space.
Just treat her how you would hope to be treated if ever in a similar situation. I think this is one of those situations here moral standing is as important as where you stand legally.

 

[Nord20]

I feel I must juxtapose the last comment, as whilst everything Arcon5 said is true, your responsibility doesn't just lie with this employee, but to the business and the other people who's livelihoods depend on it.

I should imagine working with a 30% reduction in your workforce is simply untenable in the long run and so you are being forced into this uncomfortable situation of having to choose between laying off someone going through personal hell, or risking the business and lives of the other employees.

No easy way out of this one, I'm afraid - you have my empathy.

 

[eldirect]

Brilliantly put Nord. In a tiny business like that compassion can kill it and ruin it for all. It must be hell for the employee in this situation but it reads to me like you are trying to do your best in a horrible situation.

I do not envy you here. I hope it all sorts.

 

[arcon5]

If experiencing issues with a single member of staff is enough to kill a company or or destroy livelihoods then one may suggest the issue was that of mismanagement than anything else.

 

[Nord20]

What rubbish!

If the company has 2 employees, because that's what it needs, and one disappears from the workplace, it is inevitable that will cause a problem and that employee will need to be replaced.

Are you suggesting the management should over-employ, so that should an employee vanish, they have a spare waiting in the wings?!

 

[Newchodge]

What rubbish!

If the company has 2 employees, because that's what it needs, and one disappears from the workplace, it is inevitable that will cause a problem and that employee will need to be replaced.

Are you suggesting the management should over-employ, so that should an employee vanish, they have a spare waiting in the wings?!

No, but if the company has only 2 employees, management should ensure that they can both do both jobs, otherwise the company will fail if one employee falls ill.

 

[Nord20]

So long as the second employee is also happy to work twice as many hours.

 

[Newchodge]

Not necessarily, it just gives the company space to recruit if necessary. The Op in this case knew they would need to get someone in, but apparently did not give this much thought until the situation became critical.

 

[Nord20]

The OP got blindsided - the employee in question left work saying she would not return, then changed her mind and went on indefinite sick instead. He said in his original post that he was planning on recruiting a replacement, but now she will be coming back "at some point" (the timing of which he has literally no idea), he is stuck between a rock and a hard place. He can't employ a replacement, as she might come back next week, or she mind end up never coming back. She's got him over a barrel, although plainly not deliberately - she is quite rightly looking out for number one.

Honestly, what would you have done different? Given that there isn't some magical bottomless pit of money, the OP couldn't have been expected to employ another person before she left; will find it hard and expensive to employ someone temporarily, train them up, etc etc, for what could be a very short space of time and was simply asking for advice on what to do for the best.

He clearly doesn't want to screw over his employee, but when all is said and done, he has to look after the business.