Can an employer sack an employee whilst off sick?

hayhay · Mar 30, 2019

I have an employee with a history of disruption with other staff. On the last occasion, we had a meeting and made it quite clear her behaviour was not okay, and that the effect she was having on team moral was tolerable any more. I was in fact ready to let her go at that point, and fully expected her to blow up as she has in the past, and threaten to leave (as she has in the past). My plan was to simply accept. However, she changed her tune entirely. She was apologetic and seemed genuine in her intention to improve. The employee had been with us just under a year at this point, and has some good qualities at work, and so we agreed that she would wind her neck in and work in harmony with the team.

Fast forward five months, and after a new manager has started with us, sure enough problem employee had started with the disruptive attitude. I told her that I would be doing her next appraisal, and gave her a standard form we have for the employee to fill the scores they hit on certain parts of their job, then the manager goes through the form and puts their score by the side. I told her I wouldn’t fill the form, her new manager would. But I would be doing a final less structured appraisal with each member of staff before handing the job to the new manager. I really wanted to touch base with each member of the team to make sure they were happy with the new structure and new manager.

Problem employee pretty much knew I would be revisiting what was discussed and recorded 4 months previously, and whether she knew or not, (I think she knew) my plan was to let her go. The meeting was due on Monday and she called in Saturday to say she wasn’t going to be in on Sunday, or Monday as she has hurt her back. She said the doctor had been out to her and sent her to the hospital, but later changed it to, she called 111 and they told her to go to the hospital.

She has been off all week and called yesterday to say she was going to the doctors and she’d let us know what he said. She then called to say the doctor told her to self certify for yesterday and go back to him on Monday. I’m guessing she’ll get signed off again. My question after this looong post is, can I fire this employee for her disruptive behaviour, whilst she’s is off sick for her back?

She has been with us now for about 14 months. I know I would have to send her to OT for a report first to cover for DD, but how quickly is it reasonable to do that?. In hindsight I should have seen the trouble ahead and ended the employment when she was previously disruptive.

Newchodge · Mar 30, 2019

First of all, self certify - she can only do that for the first 7 days of absence. She must have a medical note to cover for absence from the 8th day forwards. If she doesn't have that she is on unauthorised absence.

Yes, you can dismiss her now. There is absolutely no reason to send her to occ health as there is no reason to believe at this point that she may have a disability. Give her notice period on full pay and any outstanding holiday and say goodbye.

PS, paragraphs make a long story easier to read.

EDIT: tell her the reason is her disruptive behaviour and explain, briefly, why. Give her the right to appeal.

hayhay · Mar 30, 2019

Thank you, and sorry about the lack of paragraphs. I just tried to edit, but i the time limit has expired.

Newchodge · Mar 30, 2019

hayhay said:
Thank you, and sorry about the lack of paragraphs. I just tried to edit, but i the time limit has expired.

No problem, it's just one of my little rants

hayhay · Mar 30, 2019

I did it on my phone originally, and now I'm on my laptop, it looks ridiculous!

kulture · Mar 31, 2019

I hate no paragraphs too! But I can edit.

Newchodge · Mar 31, 2019

kulture said:
I hate no paragraphs too! But I can edit.

Everybody likes a clever clogs!

hayhay · Mar 31, 2019

Thank you! I tried, but it said I couldn’t because the post had been there for more than 30mins. Thanks again!

kkfcXHzmCc · Apr 1, 2019

Interested in the outcome for this!

hayhay · Apr 1, 2019

UPDATE:

Awkward employee’s self-certificate answers ‘yes’ to was the injury caused at work. She is a supervisor, and is responsible for recording customer and staff accidents in the accident book, yet there is nothing recorded for this ‘accident’. I daren’t terminate the employment now. New sick note for 7days..... *sigh*

Mr D · Apr 1, 2019

hayhay said:
UPDATE:

Awkward employee’s self-certificate answers ‘yes’ to was the injury caused at work. She is a supervisor, and is responsible for recording customer and staff accidents in the accident book, yet there is nothing recorded for this ‘accident’. I daren’t terminate the employment now. New sick note for 7days..... *sigh*

May be worth professional advice (if not already getting it).

kulture · Apr 1, 2019

hayhay said:
UPDATE:

Awkward employee’s self-certificate answers ‘yes’ to was the injury caused at work. She is a supervisor, and is responsible for recording customer and staff accidents in the accident book, yet there is nothing recorded for this ‘accident’. I daren’t terminate the employment now. New sick note for 7days..... *sigh*

So you must do an investigation. What "incident"? why was this not reported? Why not recorded in the book? Why has nothing been said about this until this "yes" on the form.

You should get professional advice and seek to resolve this situation promptly. A few hundred spent on a professional will potentially save thousands latter.

obscure · Apr 1, 2019

hayhay said:
UPDATE:

Awkward employee’s self-certificate answers ‘yes’ to was the injury caused at work. She is a supervisor, and is responsible for recording customer and staff accidents in the accident book, yet there is nothing recorded for this ‘accident’. I daren’t terminate the employment now. New sick note for 7days..... *sigh*

Sounds like you need to investigate their failure to follow procedures and issue a warning if appropriate.

kulture · Apr 1, 2019

obscure said:
Sounds like you need to investigate their failure to follow procedures and issue a warning if appropriate.

I have to disagree, the OP needs professional advice. They had already had problems with the employee and already communicated it to them irrespective of this "incident". They were already planning to dismiss. So they are not likely to be seeking to look into this incident with regard to issuing a warning. They should however look into it to establish what happened, whether it was a preventable accident, what, if any, liability they may have, whether they need to tell their insurance company, etc.
The decision to dismiss should have no bearing on thin, nor should it be influenced either way by this. However they will need professional help to ensure that the two matters are kept separate.

obscure · Apr 2, 2019

kulture said:
I have to disagree,

You don't actually disagree (or rather we don't). Everything you say is true and the OP should get professional help. I am just suggesting that they should ALSO make sure to pursue the disciplinary angle in relation to this accident, just in case it's needed.

hayhay · Apr 2, 2019

Thank you everyone, I do really appreciate your input. We do pay an annual fee to an HR adviser, who over sees letters we send out, contract stuff and any disciplinary hearings (we haven’t had many).

I came here for advice because I feel he always errs too far on the side of caution. His job is to protect our business, so I understand why his default is to over egg everything. However, I do believe that in the past, when we had a very similar situation to this, his advice wasn’t correct and it cost us money and employee moral as the thing dragged on for ages.Infact I feel like our current issue is a ripple effect from the one that dragged on.

When I asked the original question about firing an employee whilst in sick, our advisor would say no and we must first send her for an OH report to establish if the illness/injury could fall under disability discrimination. Infact on another occasion I wanted to let her go, he said it wasn’t wise as we could be accused of sexism, because she was female, and we had just taken on a male employee. We have a good mix of male and female employees.

The advice given by Newchodge in the first instance basically confirmed what I suspected about our HR advice being too cautious.

Anyway, that’s our issue, and at some point I suppose if I don’t have faith, we need to explore alternatives.

Thanks again, I will update.

kkfcXHzmCc · Apr 2, 2019

Please do update! Definitely investigate the "incident"; if you have CCTV inside/out to prove your case then hopefully it'll see nothing and they're full of it!

Newchodge · Apr 2, 2019

I don't understand why the fact she is claiming that she had an accident at work prevents you from dismissing her over her attitude. Her behaviour hasn't changed, the effect she is having on your team hasn't changed. I see no reason why you cannot get on with it.

kulture · Apr 2, 2019

Newchodge said:
I don't understand why the fact she is claiming that she had an accident at work prevents you from dismissing her over her attitude. Her behaviour hasn't changed, the effect she is having on your team hasn't changed. I see no reason why you cannot get on with it.

In fact I can see every reason why you should get on with it. Otherwise you will let this drift until she has been there 2 years, and it will also begin to look like the two items are related. They are not. There is NOTHING wrong with getting rid of an employee who does not fit in in their first two years. Likewise there is nothing stopping you investigating a potential accident at work involving an EX employee.

Nord20 · Apr 3, 2019

As has been said many times on similar threads to this - you need shot of this employee and until you fire her, you are going to be thinking and stressing about this 24/7.

The 'injury at work' is a red herring. Call her bluff and fire her. If she then tries it on, you have all the evidence you need to defend yourself (no incident reported would be where I would start).

She's even been with you less than two years, so you don't have to give a reason (but you may as well, as you have a perfectly legitimate, and well documented, reason).

I promise you, things won't get better until you get rid of her. You've done nothing wrong, you've given her every chance to improve and instead she is playing games. Don't let her affect either your business or your mind. Get rid and move on.

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Can an employer sack an employee whilst off sick?

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