Employee's sickness is driving me nuts!

[Jacob Goldberg]

Hi all,
I have a young (21) office employee who has been sick loads. She complains of headaches, backaches, stomach aches and says she has been to the doctors on many occasions. Right now she is having servere headaches and produces sick notes. I have her on statutory sick pay. Last month she was off 14 days, this month so far, 3 days (and its only the 5th). In fact since she started in January she has been off sick for at least 3 days every month. Total 32 working days. The absence in that post is detrimental to my business.

My question; can I legally dismiss her on the grounds of excessive sickness? If not, her performance is becoming really bad when she is at work - maybe this is the route to go. I would really appreciate advice on this

 

[FireFleur]

http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1073793839

There is some advice, the thing to realise though is that as an employer you take some of the risk on things like this. Sometimes (often?) it is better to contract with people rather than employ.

 

[LimeHR]

To avoid a claim for disability discrimination you need to take some advice before proceeding down the disciplinary route. Such cases can be brought before a tribunal by any employee as there is no qualifying period of time of employment.

As she clearly is ill and providing medical certificates before proceeding any further you need more information on the nature of her illness and normally this will require having, at your expense, an occupational health medical examination carried out. Happy to help you with this if you contact us.

 

[fisicx]

Isn't there a probationary period during which time you can usually terminate their contract?

 

[Jacob Goldberg]

To avoid a claim for disability discrimination you need to take some advice before proceeding down the disciplinary route. Such cases can be brought before a tribunal by any employee as there is no qualifying period of time of employment.

As she clearly is ill and providing medical certificates before proceeding any further you need more information on the nature of her illness and normally this will require having, at your expense, an occupational health medical examination carried out. Happy to help you with this if you contact us.

Thanks LimeHR, Yes I don't doubt she is ill. I will hold off the OH medical for now as her performance is a big enough issue as is. I was just fishing for any options with regards to sickness, dismissal and the law.

She had a three month probation period in which she was fantastic! But recently things have slide downhill. Personally I want to keep her if she could only maintain a good level of work, but the sickness and poor performance is affecting my business.

 

[LimeHR]

for you there is no short cut in dismissing someone who may have a disability. To protect your business you need to be having an initial meeting with her on her next return to work following sickness. Let me know if you need a hand with that 'discussion' so that it lays out the start of your paper trail of doing stuff right.

 

[Cornish Steve]

I don't know how the law is in Britain, but it's typical in the US to give people around 10 days for personal commitments (doctor's visits, dentists, taking a son or daughter to university - and being sick). After that, it's counted as holidays. After that, it's short-term disability and you're only paid a percentage of your salary. If you're really sick, there's long-term disability, when you're usually paid 60% of your salary. Employers pay insurance premiums for this. And if you're taking advantage, you're gone.

 

[maxine]

This is always a toughie If you start asking difficult questions they can go off on longer sick absence through depression or stress and can get very messy.

I would suggest taking advice early on. Possibly you can get advice from ACAS as an employer to find out what the general guidelines are and then talk to someone like LimeHR on the specific case.

As an aside though there may be reasons prompting such a high level of sickness and if you can do "Return to work" type meetings each time you might get to the bottom of it and find out what the root cause is. It might be something like being bored, or unhappy in their work or working hours too difficult with travel arrangements and it might be something that you can change.

 

[Wavecrest Ltd]

We had more or less exactly the same problem with a young lad who "worked" for us. I think the problem is the kids see the sick days as an extension of their holiday entitlement! I have two sixty years olds working for me with genuine aches and pains but they have about one day sick each a year if at all.

Our solution to the problem with our young lad (on advice from an HR adviser) was to make his position redundant. We made no mention in the redundancy letter of the sick days. We just stated that due to a downturn in business we no longer had sufficient work for him to do. As he had only been with us just over two years we only had to pay a small amount of redundancy pay.

To be honest it was a relief to see the back of him in the end.

If you wait a couple of months you can take someone else on (prefferably older and more reliable) and give the job a different description or title.

Glen

 

[CharmD]

I agree with Wavecrest about the kids of today. I had a small retail/wholesale business where I employed youngsters as I felt I was helping to reduce the unemployment queue of the young. Worst mistake ever. One particular young lady was sick every week, never worked a full week but always turned up for pay day. There was always excuses of not feeling well or family problems. Another young lad did not turn up to work for a few days nor telephone. I tried to contact him but his mother did not know where he was. Surprisingly he turned up a week later begging to be given another chance. He already had a few chances including shortfall in till and later owned up to borrowing the money. After a few months of losing business (as they were employed to do shopfront which required reliability - someone being present at all times) I employed an older person to work shopfront, never looked back. In 3 years she had only 1 day sick. The point I am making is that youngsters of today do not take the working environment seriously, they want the wage but to do as little work as possible to get it. I am not saying all youngsters are the same either but in my case both employees turned up when it was pay day. With all due respect to your employee Jacob, headaches, stomach aches and backaches are probably what most women go through every month and by no means a reason for not working. In the past I have had terrible migraines and stomach pains but was never absent from work. I think youngsters today feel they shouldn’t work even when it’s just a cold. Your employee might have medical certificates but again from experience these are readily given by Doctors if you pay for it and complain enough about being unwell. For the record my former employees were missing on the same day every week and I found out they were signing on as well as working. It is better to give six months probation period because if it is only a week or a month you tend to find that they will sail through it perfectly and then start showing their true colours after. It is not so simple to dismiss people today but thank goodness the bakery business seems to have a different approach if you do not turn up to work – not many chances there.

_______________________
CharmD
palss.co.uk

 

[Jacob Goldberg]

We had more or less exactly the same problem with a young lad who "worked" for us. I think the problem is the kids see the sick days as an extension of their holiday entitlement! I have two sixty years olds working for me with genuine aches and pains but they have about one day sick each a year if at all.

Our solution to the problem with our young lad (on advice from an HR adviser) was to make his position redundant. We made no mention in the redundancy letter of the sick days. We just stated that due to a downturn in business we no longer had sufficient work for him to do. As he had only been with us just over two years we only had to pay a small amount of redundancy pay.

To be honest it was a relief to see the back of him in the end.

If you wait a couple of months you can take someone else on (preferably older and more reliable) and give the job a different description or title.

Glen

Yes Glen was thinking along similar lines - but concentrating on poor performance which has been terrible when she is at work The latest news is... she is still unwell with headaches and her partner has just been diagnosed with suspected swine flu so that means she can't come back in case we all catch it too... at least 2 more weeks off for her!! PLUS I sense a swine flu for her coming on She asked if she still need to produce sick notes. I said yes in order to keep paying Statutory Sick Pay (hope that's correct).

 

[Burdett]

Hi everyone.

Sorry for the blatant advertisement but I offer a service that might be useful to you. What we do is phone employees when they phone in sick to make sure they are actually ill and not pulling a sickie and going out having fun. Lancashire Police did this (not with us) and their average sick days per employee went from 11 days per year to 8 days per year and resulted in an extra 50 police officers on duty per day.

A simple phone call can make your company more productive. I don't just offer this service - infact it's not my main one. For more information PM me.


Now I have a few questions regarding how this can be solved...

Can you legally employ someone for an hour per day then if they show up they can work for 8 hours (class it as overtime)? This way you only have to pay sick pay for 1 hour per day if they don't show up as they can't actually work overtime if they don't turn up for work. They will then realise that it's not in their best interest to stop working. This is so good it's probably illegal...

 

[GRDCredit]

What we do is phone employees when they phone in sick to make sure they are actually ill and not pulling a sickie and going out having fun.

Does this work? If you phone up and they don't answer does this mean they are out having fun? If I am in bed ill (or indeed in bed for any other reason ) I don't get up just because the phone is ringing.

If they do answer does this mean they are ill?

Can this not be taken as harrassment?

 

[crossdaz]

.

If they do answer does this mean they are ill?

hello, we are just a random survey company, how are you?

never felt better, in fact I'm pulling a sickie today but don't tell anyone
​

Sounds like a service a lot of police forces and local authorities will be all too eager to buy.

 

[maxine]

Can you legally employ someone for an hour per day then if they show up they can work for 8 hours (class it as overtime)? This way you only have to pay sick pay for 1 hour per day if they don't show up as they can't actually work overtime if they don't turn up for work. They will then realise that it's not in their best interest to stop working. This is so good it's probably illegal...

You might like to research zero hours contracts

hello, we are just a random survey company, how are you?

never felt better, in fact I'm pulling a sickie today but don't tell anyone
​

Sounds like a service a lot of police forces and local authorities will be all too eager to buy.

The reason they are ill is that they cannot book holiday !!

 

[The Master]

I feel a pity for the original poster in that he has obviosuly got an employee who is taking the proverbial.

I used to have a young 20 yr old strumpet, and every monday morning when I was heading to work, I just knew it would be a sick day for her, as I knew from colleagues that Sunday Night was her night out with her boy. Mondays changed to Monday and Tuesday, and she had more medical problems than Stephen Hawking.

I was lucky in that she broke an employment confidentiality clause by posting remarks on Facebook, so I sacked her.

The OP should reappraise the assertion that he would like to keep her. Why keep someone who is abusing you? How come she was so wonderful during probation, and then became such a hypochondriac?

This post is indicative of what is wrong with this country.....

1. If someone stubs their toe, the doctor will give them a sick line.
2. Instead of coming to work, a sickline is sent in with a stubbed toe being described as "interim disability"
3. Employers just accept these sick lines, because they are too scared of tribuneral cases being taken, just in case there is a remote possibility something is wrong.
4. The poor disabled employee can still claim their working tax credits because they have contractual hours, and the sickline covers them


Employment rights were originally incepted to protect innocent employees against unscrupulous employers, but this ideal has been lost in the midst of the "I WANT" culture, resulting in employers having to treat employees better than they would treat their children.

As a subsequent poster stated, make the position redundant, and lose the dead wood. When she isnt in, you manage without her, so just extend this, but yes don't mention the sick leave in the redundancy notice. If someone isn't adding value to your business, why keep them? By definition they are a drain on your resources, and therefore like a rotten tooth, it needs extracted.

 

[CharmD]

Totally agree with The Master, Jacob I can't imagine why you would want to keep your non-working employee, she is taking you for what she can get and clearly has no intention of working but receiving money. How long has she been working (or not working as the case may be) for you? It's time to get rid. It is only costing you money. Not plugging but it is one of the reasons why I became a virtual assistant, clients only pay for the time used and no sick pay. Because of the ridiculous employment laws that we have it is far better to employ someone on short term contracts and keep extending it if needs be because young employees do know how to play the game. I have worked with a lot of youngsters in my business (16-25) and they have admitted this is what they do to other employers - the general idea is to work as little as possible but get full pay. There are so many unemployed at present I am sure someone would be delighted to be given the chance to prove his/her self - give someone else a chance, young or old.

__________________________
CharmD
palss.co.uk

 

[yankee candleman]

Our solution to the problem with our young lad (on advice from an HR adviser) was to make his position redundant.

Glen

Exactly what I was going to say.

Happened to a few colleagues I worked with who took the mick a lot.

Just change the job title and add some responsibilities into the new position.

We do not pay for the first two days of sickness and it is amazing how little sickness we get except the casual/part time workers.

 

[Jacob Goldberg]

and she had more medical problems than Stephen Hawking.

LOL.. you are right Master, in fact since her absence we have coped quite well covering her work, so to make it redundant isn't such an issue. Question is... can I make her redundant whilst she is off sick? :redface:

 

[Cornish Steve]

To repeat what I suggested earlier. Can't you limit the number of sick days per year (including doctor's appointments) to 10, say? After that it comes out of holidays, and after that you pay a disability allowance instead of salary. This is what a British company imposed on me when I worked for their American office, and it's quite a common policy here. It stops people from taking advantage.

 

[Jacob Goldberg]

To repeat what I suggested earlier. Can't you limit the number of sick days per year (including doctor's appointments) to 10, say? After that it comes out of holidays, and after that you pay a disability allowance instead of salary. This is what a British company imposed on me when I worked for their American office, and it's quite a common policy here. It stops people from taking advantage.

Thank you Steve, I will look into it, unfortunately I am restrained somewhat in the policy department because my business is a franchise. Such a move would need to be cleared by the Franchisor.. however, I will pass on your suggestion as I personally think it is excellent, but would like to know how much disability allowance would be though.

 

[Cornish Steve]

Usually, disability payments are about 70% of regular salary. I don't know about in Britain, but in the US it's basically an insurance policy paid by the employee. Indeed, the insurance premium is deducted from the employee's regular salary.

 

[yankee candleman]

Not sure if you can do the sickness to holidays thing over here. They are known as "well days" I think, but I looked in to this when I did contracts for my employees and it was not applicable then.

 

[anthonyhartley]

Had a similar situation with sick days with a couple of staff. One employee was off alleged constant migraines. 2-3 per month. I resolved the situation by laying things out to him. It was not acceptable to me or my other staff. Fortunately the employee in question agreed to move of PAYE and onto freelance wages. I probably got lucky hear though.

The second one was actually related to me by my marriage which made a resolution all the more difficult to broach. Again constant sick days for a variety of reasons the number one being stomach pains. When she was in she mopped around the office complaining of her ailments. I was just through with things at this point and sacked her. Again slightly different set of rules because she was hardly going to take a relative to a tribunal.

I'd recommend you forget the legal recourse just for the moment and actually have an informal meeting. Sit them down and see what’s really going on. You are likely to find that there are some reasons behind the reasons. Nothing ever appears to be what it is with staff.

If you are frank and open with them you might find that if they are unhappy working for you that they serve their notice and problem solved. Let me know how you get on.

 

[helenthemum]

OP I feel sorry for you.

I had an employee who was off sick for almost 5 months earlier this year.

I was seeking advice about sacking her as her abscence was damaging the business and she didn't communicate with me unless I sent her a letter recorded, her sick notes always arrived just before pay day despite being signed by DR week before. She lives less than 300 yards from work premises and drinks in the pub less than a 50 yards.

As soon as she got disability allowance sorted she came back to work.

Too late damage done, she is now layed off as I couldn't carry on with my development plans and lost work due to her sickness.

Hope this doesn't happen to you.

 

[Jetlag]

May seem wishy washy, but try speaking to them.

See if there is something that they're not happy with. They could very well be going through something very serious at home.

 

[yorkshirejames]

To repeat what I suggested earlier. Can't you limit the number of sick days per year (including doctor's appointments) to 10, say? After that it comes out of holidays, and after that you pay a disability allowance instead of salary. This is what a British company imposed on me when I worked for their American office, and it's quite a common policy here. It stops people from taking advantage.

You can pay SSP only, rather than full pay.

 

[Faith28]

If you are a member of the FSB they take you through the whole process from the official letter templates, to the process and they will also act as witness to show that you have taken the appropriate steps throughout the process.

I pay £100 per annum but it is a bit more if you have more than one employee.

www.fsb.org.uk

 

[Jetlag]

A friend at the Royal Mail says they have a warning system. First period of sickness is a verbal, second and third are written, fourth is dismissal.

I wonder if you could instigate something like that?

 

[Employment Law Clinic]

As others have mentioned already, these problems can often be addressed - or at least give you some insight into the cause - if you have an informal word with the employee.

However, I would advise against trying to restrict pay or start introducing new requirements - such as a limit on the days - before staff can have sick leave: these would all be changes to the employment contract, and you can't change this without the consent of the employee... which of course is unlikely to be secured. (If you were to decide not to pay the normal amount for sick leave, you could face a claim for unlawful deductions from wages.)

The proper approach is to treat poor attendance as a disciplinary matter, and take necessary steps from there. If formal action doesn't result in attendance improvements, you can dismiss fairly, but you would first need to complete all appropriate formalities. And also to ensure employment contracts - the Statement of Particulars element of these - are more tightly written in the future.

Hope this helps.


Karl Limpert

 

[KidsBeeHappy]

A friend at the Royal Mail says they have a warning system. First period of sickness is a verbal, second and third are written, fourth is dismissal.

I wonder if you could instigate something like that?

That's rubbish, you can't dismiss someone for being ill. Unauthorised absence yes, but not illness.

 

[Wild Goose]

OP, Wavecrest is on the money with redundancy - it's the only real solution.

For future employees, follow-up on Maxine's zero-hours contracts. Broadly they allow you to vary an employee's working hours day by day, week to week. Anyone who doesn't pull their weight is simply told they are not needed the rest of the week / month / decade. Use someone who knows what they're doing to set up the zero hours contract - cost should be minimal. These employment contracts are popular with temp employment agencies; supermarkets use them too.

Whether or not you can safely make your employee redundant while she is off sick is a matter of judgement - you really need to run it past an accountant or solicitor familiar with HR for an opinion. The size of your workforce will also be a factor.

These are not DIY matters because there's too much at stake. If your employee takes you to a tribunal and succeeds on a technicality you could end up having to reinstate her and cover her back-pay for the six months or so the case might drag on. Try to use a firm with professional indemnity insurance just in case.

 

[Wild Goose]

As an alternative to redundancy, here are two alternative ideas that clients really have used to combat excessive staff sickness:

1 Chocolate and Flowers
The Gas Board used to use this one. Get your absent employee's line manager or workmate to visit your employee's home with you at random times. Take along chocs / fruit / flowers, and get well soon card signed by all staff. Your employee will be unable to relax at home, and will be prevented from mowing the lawn / going shopping etc in case you should happen to call.

2 Alternative Employment
A client used this one. He got one of his mates to advertise a vacancy that was tailor-made for his dificult employee, with a whacking salary. Employee got to hear of the vacancy, naturally got the job, and so handed in his notice. Naturally, he didn't last more than a week of his trial period in his new job.

 

[Employment Law Clinic]

I suspect the reference to Royal Mail's process is a very limited summary of the procedures, but contrary to what Boxby says, you can dismiss for someone being ill, although the reason for dismissal will effectively be capability - due to significant absences, not being sick per se: the employee will be prevented from fulfilling their duties, and this is a fair reason for dismissal.

Unfortunately (I'm new to this site, so don't want to be seen challenging people, but equally feel professional advice should be offered) I also have to challenge Wild Goose's good intentions. Redundancy is probably not the way to go, as unless the position - the job itself - becomes redundant (as in no longer required), and only that job, you could again expect an employment tribunal judgement against you.

You can make someone redundant while they are on sick leave, but the consultation process would also be a challenge if this was the only job that was being considered for redundancy.

The process for redundancy can be done DIY, although it is recommended to seek advice & guidance beforehand; I can't post the links at the moment, but if anyone wants to PM me I will try to get details to others.

I was planning to post more about redundancies on here later (although will clearly have a problem with links), and will happily mention it in this thread once posted.

Karl Limpert

p.s. I entirely agree with Wild Goose about professional indemnity insurance - you don't want poor advice, and then not to be able to recover your loses from your advisor.

 

[Wild Goose]

I also have to challenge Wild Goose's good intentions. Redundancy is probably not the way to go, as unless the position - the job itself - becomes redundant (as in no longer required), and only that job, you could again expect an employment tribunal judgement against you.

Hi Karl,

No worries about the challenge. I think Wavetree clearly intended that it would be the job rather than the person made redundant. Naturally a reshuffle would also be a good idea - redefining people's duties so that the departing employee's duties are re-allocated to other staff. That shouldn't be too difficult given that her duties are already being performed by others.

ps I mentioned the size of the firm as there may be no need for any consultation process. How many employees do you have, OP?

 

[Employment Law Clinic]

Hi Wild Goose,

The thing to remember is that Employment Tribunals are wise to the tricks, and even if the employee's lawyer didn't expose any dodgy shuffling of roles that had the principal intention of dismissal, the panel would.

The starting place with redundancies is to determine that the need is likely. From there, consultation with staff should explore alternative options, but if redundancy is necessary, then to apply a fair selection criteria to find candidates. Try to fix the whole process to result in one employee, and flaws will invariably exist.

Having read through more of this thread now, the other thing that is always seen as a hurdle is disability discrimination. I honestly believe this is given far too much weight - there are some employees that would qualify as disabled, but this certainly doesn't apply to every (or even most) employees on regular sick leave.

To be fair to the hard-working majority, employers should always & promptly tackle poor performance/attendance, but do it in a way that will be fair to the employer too, and ensure the employee knows they don't have a chance in an Employment Tribunal & shouldn't bother - reminders about possible costs claims can be helpful in this regard.

Karl Limpert

 

[Wild Goose]

Hi Wild Goose,

The thing to remember is that Employment Tribunals are wise to the tricks, and even if the employee's lawyer didn't expose any dodgy shuffling of roles that had the principal intention of dismissal, the panel would.

I think there's a strong possibility that the employee might be hoist by her own petard: the ready-made argument to any tribunal might run along the lines of "for some months her duties were shared out among her colleagues, to the point where her job became redundant because the firm were able to manage quite well without her." Even the sternest of tribunals must surely accept that a redundancy for a non-essential job-function is an economic necessity. Looks like a good batting wicket to me.

The starting place with redundancies is to determine that the need is likely. From there, consultation with staff should explore alternative options, but if redundancy is necessary, then to apply a fair selection criteria to find candidates. Try to fix the whole process to result in one employee, and flaws will invariably exist.

Karl Limpert

Well if she's the receptionist or the telephonist for example, and that role is being made redundant, then inevitably the whole process will result in that one employee being made redundant.

But just suppose she is one of a half-dozen (say) clerks all with the same function and job description, what would might a fair selection criteria for one redundancy be? Oldest out? Last in First Out? Or someone who has had inordinate amounts of sick-time? Seems to me you could argue as good a case for any of these criteria.

I guess we need to know a little more about her role. And the size of the workforce, as that will have a bearing on the procedure.

 

[Employment Law Clinic]

Can't disagree with your thinking Wild Goose, but the formalities still need to be followed for any redundancy.

If the employee returned to work tomorrow, one assumes their job is still there at the moment, ergo being covered but not redundant. From there, the other jobs that were being used to cover the absence are the ones that are actually more likely to be fair targets for redundancy - as the ones not being given so much time; the employee is being managed without, but not the role as this is being covered.

In the other scenario - a sole duty, such as receptionist - the approach that should be followed would consider whether this role should be made redundant, and the work spread among the remaining staff, or if it would be more efficient to keep the post, and cut one of the jobs that might have shared the burden. However, employees may then turn around & suggest they don't want this work, and another employee might be willing to take redundancy; hard to justify sacking the receptionist then. Again, never cut & dry, but easier at least if no-one else wants redundancy.

When it comes to one of a team of equals, the criteria for selection can include all the points you mention, although this would normally be expected to include other criterion too, so it doesn't & could't be perceived to be composed for the selection of only one person.

It would be helpful to find out more about this particular person & the workforce to comment more specifically, but hopefully the advice will be generally helpful to others that encounter a similar position in the future.

Karl Limpert

 

[TestAPlug]

Im sure everyone here giving advice is very professional but this is a grey area. I would suggest contacting business link and asking their advice, at least you would be aware of the laws surrounding what you can and cant do. Good luck to you. I had a similar employee and sacked them on the spot ( however I saw them in a town pub when they were having an "operation"). Good luck. KEV

 

[Cornish Steve]

This thread just goes to show how biased the laws are against small business. Procedure this. Forms that. Tribunal the other. If someone wants to be paid something when they are sick for an extended period, isn't that what insurance is for?

Also, I find it difficult to believe an earlier comment about not being able to change an employee contract. Mine has been changed many times, and often a benefit is simply removed without warning. If I'm unhappy with the change, I can always choose to leave and work somewhere else. If I don't have the skills to work for anyone else, maybe it's time I undertook some training. Why should the employer have to go through all the hoops?

Then there was the other thread about why goods can be produced so much cheaper in China. One read of this thread, coupled with the fact that employers must pay some employees more than they are worth (i.e., a minimum wage), ought to answer that question.