contestant sickness

[Janesbits]

Good Evening,

If you look through my past questions your find I've been having some issues with an employee that's late at least one a week even through they only do 1 and half days a week.

I've given her a number of verbal, a written warning back in May and a second written warning two week ago and yet again they were late on Monday!

Now she are due to work tomorrow but have just text me letting me know she won't be in as she is not well. While she is prevent she has been off 3 days within the last 5 months. Now she knows that she does a vital roll and with the store now i will have to replace her tomorrow. It's only a team of one during the week and 2 at weekends. Now on her past she been ill and had not let know until 5 mins before her start and I made it clear she had to let know she wasn't feeling to well at least the afternoon vector so I could arrange cover. Know I don't think she is not well but that she wants to spend time with her friends.

Am I right to ask her to come into work? And I'll send her home if she really is ill? What would you do?i

 

[Employment Law Clinic]

There's no obvious reason why you couldn't issue a further warning for the lateness on Monday, but unless you're competent to diagnose whether she's fit to work, it would be ridiculous to ask her to come into work to decide whether she is ill (and arguably even then).

If the illnesses are pregnancy related, you simply have to accept this, but if they're not, there's absolutely no reason why you can't take formal action for these - alongside the lateness.

Given the pregnancy, a dismissal has to be handled carefully - in cases like this, it is a tick-box exercise, ensure you have everything covered - but there's no reason why it isn't a feasible option, as long as the pregnancy itself isn't the reason for the dismissal.

What was the reason for lateness on Monday? Did you enquire about this?


Karl Limpert

 

[Janesbits]

Hi Karl,

Thank tou for your reply,

How many warnings do I need to give her? She had a verbal, and two written?

Kindly half an hour ago she let me know she won't be in again tomorrow but was seen by a friend walking around the supermarket this afternoon :/ hmm.

Kind Regards,
Jane

 

[degenerationx]

How long has this person worked for you for?

 

[Deleted member 232637]

Hi Jane,

How long has this person worked for you? If she has under 2 years service you could let her go under short-service dismissal. But you'd need to be sure that the reasons for her sickness and abscence is not pregnancy related or disability related.

When you do her return to work meetings with her, has she explained her reasons for being off ill? Did you explain what would happen to her if she was late again within a specific time frame? What do your procedures say?

Sorry for the multitude of questions!

Kind regards,
Michelle

 

[Patrick @ BIG in the UK]

Length of employment is key, if she's been with your firm more than 12 months she has more protection than she would if she'd started within 12 months.

Warning wise, you can dismiss someone on their second warning.

Pregnancy is something you need to be very careful about. As mentioned, if the illness is related to the pregnancy, then unfortunately your hands are tied.

Make sure you have everything covered before you go down the formal route.

 

[Employment Law Clinic]

How many warnings do I need to give her? She had a verbal, and two written?


Kindly half an hour ago she let me know she won't be in again tomorrow but was seen by a friend walking around the supermarket this afternoon :/ hmm.

The amount of warnings that she needs to be given will depend on what the disciplinary policy says. These vary, typically between three & four (including formal “verbal” warnings, which are confirmed in writing). After a "verbal" warning, there could be a "written" or "first formal written" warning, perhaps a "second written" warning, and then a "final" warning. Without seeing the policy, and the warnings issued to date, impossible to say how many more should be issued - as & when any opportunity arises.

The fact she was seen walking around the supermarket doesn’t mean she’s fit for work – she still needs to get her groceries – but you can discuss this as part of a Return to Work interview.

Length of employment is key, if she's been with your firm more than 12 months she has more protection than she would if she'd started within 12 months.


Warning wise, you can dismiss someone on their second warning.


Pregnancy is something you need to be very careful about. As mentioned, if the illness is related to the pregnancy, then unfortunately your hands are tied.


Make sure you have everything covered before you go down the formal route.

Given her state of maternity, she has protection immediately if this is the reason for any formal sanctions or dismissal, regardless of length of service. (Without being pregnant, the right to protection against unfair dismissal arises after 2 years, not one.)


I’ve never heard of any formal disciplinary procedure that would permit dismissal on a second warning, and I don’t believe this could ever be considered reasonable, so suggest it would not be a sensible approach to adopt.


Your hands are not tied due to pregnancy Janesbit, it just requires extra care to make sure things are done correctly, and can be shown/seen to be done correctly & fairly – not for a reason related to the pregnancy.


Karl Limpert

 

[Patrick @ BIG in the UK]

The amount of warnings that she needs to be given will depend on what the disciplinary policy says. These vary, typically between three & four (including formal “verbal” warnings, which are confirmed in writing). After a "verbal" warning, there could be a "written" or "first formal written" warning, perhaps a "second written" warning, and then a "final" warning. Without seeing the policy, and the warnings issued to date, impossible to say how many more should be issued - as & when any opportunity arises.

The fact she was seen walking around the supermarket doesn’t mean she’s fit for work – she still needs to get her groceries – but you can discuss this as part of a Return to Work interview.




Given her state of maternity, she has protection immediately if this is the reason for any formal sanctions or dismissal, regardless of length of service. (Without being pregnant, the right to protection against unfair dismissal arises after 2 years, not one.)


I’ve never heard of any formal disciplinary procedure that would permit dismissal on a second warning, and I don’t believe this could ever be considered reasonable, so suggest it would not be a sensible approach to adopt.


Your hands are not tied due to pregnancy Janesbit, it just requires extra care to make sure things are done correctly, and can be shown/seen to be done correctly & fairly – not for a reason related to the pregnancy.


Karl Limpert

Karl,

Regardless of hearing about it or not, dismissal can lawfully occur on a second warning.

Given that the employee either can't carry out her job to the required standard, or can but is unwilling - I'd argue 2 would be enough where loss of money was coming in to it.

After I'd exhausted every other avenue of course.

As for pregnancy, tell me how you go about 'correctly & fairly' sacking someone who is off due to a pregnancy related illness?

 

[Employment Law Clinic]

Hi Patrick,

Regardless of hearing about it or not, dismissal can lawfully occur on a second warning.

I cannot perceive of a verbal warning (the first formal warning in this case) that gives notice that if there isn’t sufficient improvement, the consequence could be dismissal, I just think that would be far too harsh.

Unless you’re considering a case of serious misconduct/capability (not someone being frequently late or sick, which is the discussion in this thread), I would strongly suspect that any employment tribunal would find dismissal after only one previous warning not to be within the range of responses of a reasonable employer (because not enough had been done, nor time permitted, to attain the necessary improvements), and therefore it would not be considered lawful.

(Just my view though.)

As for pregnancy, tell me how you go about 'correctly & fairly' sacking someone who is off due to a pregnancy related illness?

I don’t believe you could dismiss someone correctly & fairly for a pregnancy related illness – but consistent lateness could be grounds. There is nothing said by the OP to suggest the employee is off sick, or late, with a pregnancy related illness.


Karl Limpert

 

[Patrick @ BIG in the UK]

Hi Patrick,

I cannot perceive of a verbal warning (the first formal warning in this case) that gives notice that if there isn’t sufficient improvement, the consequence could be dismissal, I just think that would be far too harsh.

Unless you’re considering a case of serious misconduct/capability (not someone being frequently late or sick, which is the discussion in this thread), I would strongly suspect that any employment tribunal would find dismissal after only one previous warning not to be within the range of responses of a reasonable employer (because not enough had been done, nor time permitted, to attain the necessary improvements), and therefore it would not be considered lawful.

(Just my view though.)



I don’t believe you could dismiss someone correctly & fairly for a pregnancy related illness – but consistent lateness could be grounds. There is nothing said by the OP to suggest the employee is off sick, or late, with a pregnancy related illness.


Karl Limpert

We have to take the situation in the context we have, this has happened repeatedly... She's the only one in the shop, resulting in the employer having to dig deep at a short notice to replace her when she decides to give five minutes notice.

After a formal warning (be it written or verbal) and coaching/retraining (be it going back over security rules, outlining the procedure for lateness, helping the employee understand why it's important to inform the business at the earliest opportunity) the business is well within it's right to dismiss the employee. You only need to give two warnings.

You're view is that this would be unreasonable. My view is that it's very simple and the employee knows what she's doing when she phones up 5 minutes before a shift leaving her employer out of pocket. I see it an issue of conduct - knowing what her job is, but unwilling to cooperate. You don't need 3 warnings to tell someone to give more than five minutes before calling in sick.

Of course it's subjective, but I'd side with the employer on that. It's ignorant of the employee (and believe me, that pains me to say as I'd typically look for reasons so side with the employee).

As for the pregnancy related illness argument - any union rep worth their salt would be suggesting this route from the employee. So whilst there's nothing been said of it yet, I'd bet my bottom dollar there would be should things escalate...