Employee's sickness is driving me nuts!

[Employment Law Clinic]

Hi Cornish Steve,

When looked at as procedures, forms, tribunals, etc, it does look like a lot of effort - which is why some businesses are reluctant to even bother trying, either resulting in successful claims against them, or running the business with an employee that doesn't contribute to it. If frustration enters the equation, action is taken in haste, and this invariably leads to a tribunal. (A client was close to this position recently, but little more than one extra letter, and the formalities were completed before the formal disciplinary.)

No doubts, there is a lot of red-tape for small business, but professionally dealt with this (or at least the employment law elements - I don't advise or represent on other red-tape, just get caught up in it) can be managed quite easily & cheaply.

I can't comment on the law in the US, but in the UK while some employers include a clause that allows them to amend the contract without agreement, the courts have determined these can only be used to make minor amendments, and not change the substance of the contract - such as withdrawing a benefit. A contract is an agreement, and if we could all change these at will, we'd never get paid for our services or have anything to rely on in dealings with others.

It is true that employers have to go through more hoops than employees, but it's not all one-way traffic.

And Hi to TestAPlug too.

From a time when I did represent employees, I have successfully defended against management action for on-the-spot disciplinary action of the nature you describe. The problem is that there could be a reason you don't know about; unlikely, but possible. This would make the dismissal unfair, as no investigation (which doesn't have to be comprehensive, and could simply be asking the employee there & then about how & why they were there).

Most employees (as I assume in your case) would know they were caught out, and simply accept the outcome. But on occasions they will take the matter to an ET, and if they did have a good reason, the employer couldn't argue that the failure to follow formalities would have made no difference to the outcome. A couple of questions to establish the situation can never do harm, and can save a lot of trouble later.


Karl Limpert

 

[Cornish Steve]

Karl,

Your advice is well put and much appreciated.

I'm just ruing the fact that government makes life so difficult with its endless web of regulation - much of which hurts employers and does nothing to improve our competitiveness in the world. We're all adults, right? We don't need government to dictate who can and cannot do what. If an employee doesn't like what's happening, find another job. If an employer can't hire good people, then treat employees better. Simple - and no overhead!

 

[Wild Goose]

Steve, the answer is a zero-hours employment contract.

Beats me why employers don't use them more often.

 

[maxine]

I'm just ruing the fact that government makes life so difficult with its endless web of regulation - much of which hurts employers and does nothing to improve our competitiveness in the world. We're all adults, right? We don't need government to dictate who can and cannot do what. If an employee doesn't like what's happening, find another job. If an employer can't hire good people, then treat employees better. Simple - and no overhead!

You are right Steve but there has been a huge amount of red tape introduced in the area of discipliary etc that it is so hard to keep up with. I used to look after quite a large team and was lucky enough to have had training to keep up with the laws at that time but there is no hope of me being able to do that now.

We are all forced to use the services of government bodies (more red tape, often they don't know the answers or consider the whole picture and have you tried to get through to ACAS lately?) or we have to use the services of employment experts/consultants. I am not knocking them but this sledge-hammer-to-crack-a-nut hinders employers being able to understand laws and make sensible decisions rather than be scared witless every time there is an unpleasant situations to be dealt with.

It is a vicious circle because the hypocondriacs get used to wishy-washy treatment and little consequences so carry on either with that employer or a different one... and so it goes on.

Steve, the answer is a zero-hours employment contract.

Beats me why employers don't use them more often.

WG, it is interesting that you say that as I was a bit worried to start off with in case I was missing something but so far (fingers crossed) they have worked like a dream helping me to avoid all sorts of pitfalls and whereas I thought that I wouldn't attract the right sort of people, I haven't had that problem at all.

It also means that I can pay bonuses and goodwill payments at my discretion rather than it be seen as an entitlement by the employee or have it forced on me by a poor performing person with an wad of employment leglislation behind them.

There is a lack of awareness around zero hour contracts though. I have had several conversation with employment agencies, job centre and business link who didn't understand these type of contracts (even my accountant had to research things properly just to be on the safe side) and I would recommend these whole heartedly from my experience so far as they make a lot of commercial sense. I am just waiting now for some other legislation to come out to burst this bubble

 

[yorkshirejames]

WG, it is interesting that you say that as I was a bit worried to start off with in case I was missing something but so far (fingers crossed) they have worked like a dream helping me to avoid all sorts of pitfalls and whereas I thought that I wouldn't attract the right sort of people, I haven't had that problem at all.

It also means that I can pay bonuses and goodwill payments at my discretion rather than it be seen as an entitlement by the employee or have it forced on me by a poor performing person with an wad of employment leglislation behind them.

There is a lack of awareness around zero hour contracts though. I have had several conversation with employment agencies, job centre and business link who didn't understand these type of contracts (even my accountant had to research things properly just to be on the safe side) and I would recommend these whole heartedly from my experience so far as they make a lot of commercial sense. I am just waiting now for some other legislation to come out to burst this bubble

This isn't as much of a saviour for you as it may seem. Should a case get to tribunal, the judge may well "look through" the written contracts and see what actually occurs in reality. If you have a zero-hours contract but someone in reality is rostered every monday to friday for 8 hours a day - then this would most likely create mutuality of obligation. This issue has previously been tested in court (the various implied employment cases, example Dacas, Muscat, James) and I must admit that I forget what the most recent guidance from the Court of Appeal actually is.

 

[yorkshirejames]

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.

I like both of these, however a caution re both.

If the former happens more than (say) once a fortnight, it is likely to be seen as harassment.

If the latter is done, then you should make sure that there is nothing to link the two parties (both from a TUPE perspective, and the fact that the tribunal may apply a look-through test) - and ethically the job being advertised ought to be a 'proper' job and the person given a fair chance in the new company.

 

[Employment Law Clinic]

The promotion here of zero hour contracts has got me really intrigued. Although quite rare, I am familiar with them, and have prepared employment contracts along this theme on occasion; I’ve actually used the close relative, “key time” contracts – the employee is required for these hours, although on occasions they may be required to commence the shift earlier, finish later, etc. Some fixed hours, but the flexibility for the employer is built around this. Neither is a typical contract, but they serve a purpose.

The main problem I think is the idea that this is the answer to all the problems for employers: a cure-all for issues with employees: have a zero-hours contract, and enjoy full flexibility of your workforce. If employment law was that easy I wouldn’t have a job – and UKBF wouldn’t have so many threads about employee issues!

In what I concede was a very brief & restricted search, I can find no specific case law (this is where judges determine what the law means, and spell it out in more detail, although it is often a very narrow legal point determined) on this subject, and very little in the way of alternative legal opinion - either to support or contradict my view. What I have found is very non-committal, extremely vague. Not one to duck the questions or rely on others though (apart from the respected judges that make case law), I will share my initial thoughts.

We have no commentary on zero hour contracts on our website (although that may change soon... we have a lot of new material to go on as soon as this is finalised, and more subjects being added to that list all the time), I suppose because these contracts (arguably) have a limited place in employment: for agency-type work or other business activities that fluctuate by the day, they would be more than appropriate, but for many employers looking to fill a standard & assumed-permanent vacancy, I’m far from convinced these contracts are appropriate or would offer the protection envisaged, and I would have strong reservations about recommending them in most instances - for which, given any firm legal views from the courts, no doubt my insurers would appreciate such an approach!

From my brief research on these contracts today, I find they appeared to emerge (or at least gain popularity) in the last recession. The then opposition (Labour) had visions of making them illegal (an infamous case of a burger chain having an employee on stand-by but not paid until needed probably helped promote this manifesto policy), but they appear to have found that wasn’t practical once they were in office – as I say, they clearly have a useful place, and then for both employees as well as employers.

There are legal opinions that between the 1996 Employment Rights Act, the Working Time Regulations, & the Minimum Wage, they have become illegal. Some other legal advisors that commented on them suggest they are a rare beast, but are not illegal in themselves – the position I would agree with.

There are also queries or views that raise the status of the employment – would the contracted person be an employee or a worker? As this matter is influenced by a lot more than the hours worked, I think this is a distraction, and in most cases (certainly the employers/staff being discussed here) I have no doubt employment status – as employees – would be easily established.

However, as I found none of the peers who do comment at all go into any detail (most of the employment law firms are totally silent on the subject), I will express my basic views now (this is provisional though, as I do want to research further, read the legislation that some think makes the whole concept illegal, and of course consider the comments here).

I think the key issues to consider are:

• Would a regular working week establish the principal of the “normal hours” – a detail that has to be provided in the Statement of Particulars?

As employment tribunals have no hesitation in determining the contract based on the practice, I think an implied term would influence the contract if the work is not normally genuinely flexible & varied in its nature.

And to add insult to injury, in a case where such a judgment was reached, a good lawyer bringing a claim would argue that the Statement of Particulars was effectively not provided (as the hours wouldn’t have been included), and any award should then be uplifted.

• Would any perceived abuse of these contracts be seen as an abuse of the obligation for mutual trust?

If these were to be used only to ensure the good employees were appropriately rewarded, but the less fortunate (those that a tribunal may feel had some unfortunate episodes of sick leave, etc) employees were free to be dismissed or not paid at will, the trust would be found to be harmed, and therefore the contract breached by the employer.


I offer the above as a far-from-final view, but I would certainly be wary of suggesting these contracts as the answer for standard contracts where the employer simply wants to swing the law or the contract in their favour.

As I'm posting, I've also noticed YorkshireJames' comments, which I've hopefully supported - they do recognise that tribunals aren't obliged to accept what the contract appears to say, but what the practice on the ground is: how most employment contracts are determined.

I'll properly delve into the legal books and the case & statute law soon, and comment further then, although I won't be optimistic for employers.

Karl Limpert

 

[Cornish Steve]

I seem to remember reading that the average amount of time today's employee works for a company is about 18 months and falling. Most commentators I've read believe that, within a decade or so, we'll hop from company to company, working short-term contracts appropriate with our skills. On the other hand, it would seem that much of the regulation to which we're unfortunately subject assumes a permanent and long-term relationship - and hence will soon be outdated. Wouldn't it make sense for the government to look to the future of the workplace, scrap much of these regulations, and start training the workforce for this emerging new reality?

 

[Employment Law Clinic]

Reading the posts from YorkshireJames properly, I cannot disagree with anything he said.

While an Employment Judge once said a submission of mine was “admirably succinct”, this is a rare habit for most of us that practice law, particularly this complex field of law. To repeat that event, rather than post a lengthy comment I should have simply suggested above that I agree with James (I didn’t agree with my peer on the occasion at a tribunal though).

Or even simply posted "ditto that".


Karl Limpert

 

[Employment Law Clinic]

I seem to remember reading that the average amount of time today's employee works for a company is about 18 months and falling. Most commentators I've read believe that, within a decade or so, we'll hop from company to company, working short-term contracts appropriate with our skills. On the other hand, it would seem that much of the regulation to which we're unfortunately subject assumes a permanent and long-term relationship - and hence will soon be outdated. Wouldn't it make sense for the government to look to the future of the workplace, scrap much of these regulations, and start training the workforce for this emerging new reality?

I've not seen those stats or comments Steve, but I think any good employer would expect to make investments in recruitment & settlement, and expect a retention return on this.

Nonetheless, I don't think this government will see things as you do, although next year will probably be different.

 

[maxine]

Thanks for your post Karl. There is probably more of an insight there than anywhere else I have looked

I should have perhaps said that because I use these in a telemarketing business the prinicple is that I am not obligated to any hours and neither is the employee to me. There is no shift system/regular hours in place. The employee (employment contract, with written statement etc) simply "opts in" to campaigns that they want to work a week in advance. This is a mixture of availablity and skills and experience. This kind of approach probably would not work in a lot of business structures but I am quite lucky in that it works for me and it works for my employees. I have specifically recruited part time staff who this appeals to such as those who have another income, running a business of their own perhaps, or a busy mum/wife who doesn't want to work all the time but likes to dip in and out of work, or students etc. I would hope that any lawyer or judge would see the balance there in that it is not being abused.

There is a teeny bit of information on the business link website here

If you have a newsletter subscription I would love to subscribe otherwise could you come back and post on here when you have done your research as I am sure it would help out a lot of people

 

[Wild Goose]

Haven't heard mutuality of obligation recently James - thanks for bringing it up. I guess that's what zero hours contracts seek to expel - the obligation on the employer to provide work. On the downside, they also do away with the employee's obligation to turn up in the morning.

I agree with you that on the downside there's always the chance that Fat G's arsey retrospective laws/rulings policy might find those that use these contracts high and dry one day. But that's been a continual risk with this government since - eek 1997. Retrospective law changes - way of the world; well, the Uk at any rate.

But zero hours employment contracts do rather lend themselves well to eg the building industry, where people who traditionally were regarded as self-employed ever since the days of the Lump now have to be self-employed. For anyone losing sleep over the myriad of laws governing whether or not their subbie should be an employee, zero hour contracts are a welcome sleeping tablet.

What's that - still have insomnia because you worry fat G night just introduce a retrospective ruling via the courts? (note: retrospective - a fav/hallmark trick in the past dozen years of New Labour's reign). No problemo - just rig your limited company so that most of the profits are instantly withdrawable - so that you can walk away at the drop of the proverbial hat and start tomorrow with a £25 Phoenix company (because generally there's only a very limited chance of fraudulent or wrongful trading in such circumstances as a retrospective ruling - after all, you did what was legally correct at the time).

I seriously believe there are so many big players out there using zero hours contracts that the government would be on a hiding to nothing if they tried to outlaw them. Maybe further on down the road, if and when our economy recovers (historically we need either a war or a plague, or both, before that might occur) Fat G might have a bash at outlawing ZHC; but for the foreseeable future I reckon he'll turn his blind eye.

 

[Wild Goose]

Top post Karl - thanks for sharing. I'm always inpressed with a lawyer who can be bothered explaining his ratio decidendi with us Plebs in the peanut gallery.

Seriously Dude, your thoughts and rationale are valuable input to those of us who make good use of zero hours contracts.

Whilst we await the obiter, have a rib-ticklin' look at the Facebook dismissal at

http://www.ukbusinessforums.co.uk/forums/showthread.php?t=120914

Sadly, I suspect the party-poopin' guy who points out halfway through the thread that the Poof employer is gonna be hauled over the coals at a tribunal is probably right. It's a mad, mad, mad, mad world!

 

[yorkshirejames]

While an Employment Judge once said a submission of mine was “admirably succinct”, this is a rare habit for most of us that practice law, particularly this complex field of law. To repeat that event, rather than post a lengthy comment I should have simply suggested above that I agree with James (I didn’t agree with my peer on the occasion at a tribunal though).

Karl - please share. I sense a good story here

 

[Jacob Goldberg]

Ok, my sicky employee came back on tuesday (waving her sick note). After weighing things up I decided to make her redundant because 1) We coped very well without her, 2) My business is struggling anyway and I need to save money big time. I have informed her of my intention and will confirm this today.

 

[Wild Goose]

Hi Jacob,

Original advice was to run it by an acountant or solicitor (or FSB or HR expert) just to make sure you get the procedural stuff right - disproportionately expensive if you get it wrong. Your sick employee will be straight off to the Citizens Advice Bureau for their well-meaning experts to pick holes at the redundancy and its associated paperwork. Worth your making that investment, I'd say. Shouldn't cost much. If your accountant or solicitor are at the pricey end, as someone mentioned earlier if you join FSB they'll walk you through the redundancy for free (as part of the annual subs).

I agree with your sentiment though - the dead wood has to go to safeguard your other employees' jobs.

 

[Jacob Goldberg]

Hi Jacob,

Original advice was to run it by an acountant or solicitor (or FSB or HR expert) just to make sure you get the procedural stuff right - disproportionately expensive if you get it wrong. Your sick employee will be straight off to the Citizens Advice Bureau for their well-meaning experts to pick holes at the redundancy and its associated paperwork. Worth your making that investment, I'd say. Shouldn't cost much. If your accountant or solicitor are at the pricey end, as someone mentioned earlier if you join FSB they'll walk you through the redundancy for free (as part of the annual subs).

I agree with your sentiment though - the dead wood has to go to safeguard your other employees' jobs.

Thanks Wild Goose, I did seek advice before seeing her. When I informed her, her face brightened up and she did not seem to mind at all. I gave a letter explaining all and said she would have a months notice of which she did not have to work and still get fully paid for. To be honest, I think she wants to be made redundant (??).

 

[ORDERED WEB]

1. instigte back to work intervews for all staff, for any absence
these should cover
a. what was the issue
b. ensure (if required) gp was visited, and probe for evidence
c. find out any underlying causes
d. explain the impact this had on the company
e. find out if there is anything the company can do for the employee
f. should outline the facts - this is instance xDays of yOccurances in a period of abc etc.
g. outline what the company, and the employee will do to prevent this happening in the future
e. be properly documented
2. have company trigger levels - if xInstances in yPeriod, then this cause of action is taken - diciplinary, stage1, stage 2, etc. this is not a "automatic ejection policy" more to document the issues
3. often peole who throw sick days underperform in other areas. If you meesure performance, have KPI's. and instigate action plans, accross the board, for all employees, upon certain known trigger thresholds.. you will be able to present a very sound argumnat for dismissal

e.g. you have 200% more sick days than all other employees for no specific underlying reason. Your performance is lacking etc. etc.

There is 1 other tack that you may want to consider
linking bonuses to sickness

e.g. you earn bonus for hitting your kpi's, but loos all of it for any insstance of sickness

e.g. you earn £50.00 bonus at christmas for 3-4 days sickness. you earn £200 for 1-2 days, and £800 for 0 days sickness over the period

 

[Faith28]

Can you actually align bonuses to number of sick days?

It would be better aligned to performance and results rather than absence of results. Positve measures are better than negative ones. It may be the same thing but emphasing a positive action i.e results is psychologically better then focusing on the absent days.

If an employee keeps thinking 'I better not get sick'..then he is more likely to fall sick!!*
If an employee thinks 'I will focus on achieving x sales' then he is more likely to keep coming in to meet his/her targets if not exceed them.



*Source: Tony Buzan author of "Head Strong"

 

[ORDERED WEB]

Can you actually align bonuses to number of sick days?

It would be better aligned to performance and results rather than absence of results. Positve measures are better than negative ones. It may be the same thing but emphasing a positive action i.e results is psychologically better then focusing on the absent days.

If an employee keeps thinking 'I better not get sick'..then he is more likely to fall sick!!*
If an employee thinks 'I will focus on achieving x sales' then he is more likely to keep coming in to meet his/her targets if not exceed them.



*Source: Tony Buzan author of "Head Strong"

you can do both

you earn bonus with abc behaviour
you loose the bonus you earnt with xyz behaviour

 

[Faith28]

you can do both

you earn bonus with abc behaviour
you loose the bonus you earnt with xyz behaviour

But which is more effective? I believe the positive enforcement of results rather than the 'you get a bonus if you don't have many sick days' works better.

As much as possible I try to focus on emphasising the positive behaviour.

 

[ORDERED WEB]

it is a company to company issue, that is resolved in different ways
If i ever needed to resolve sickness issues, then i found the best apprach was what i outlined

In other words - if the staff work very hard for the bonus, they will think twice about throwing a sick day. lets twist this about

you have 2 employees - one who is constantly sick, and the other who isnt. How demotivated will be the one who is never sick be, when the one who is swinging the lead, is also bonused?

Bonuses should award great performance. Swinging the lead, taking the micky on sisck days, or just not being at work, is poor performance, and doesnt deserve reward

you can ear

 

[Wild Goose]

Swine Flu will put paid to aligning bonuses to sick days. You'll end up paying the full bonus to your best member of staff who's been stricken with Swine Fever, and not paying the lead-swingers who've been off sick with bellyache. Watch the Bellyachers cry foul and discrimination when that happens.

 

[maxine]

I have worked with both types of schemes in the past and usually in call centres where the costs really stack up.

Problem with aligning it to sick leave is that people then take the attitude "OK, so if I am prepared to forego X amount of bonus then I am entitled to X days sick" and therefore they effectively buy extra sick absence.

I have worked with policies where X amount of days is deemed acceptable without threat of disciplinary action and therefore a load of other staff then treat this as "sick day allowance".

The other thing this does is encourage all the other genuinely sick people to come into work when they are really poorly, thus spreading their germs and resulting in even more people off sick because they don't want to lose their bonus

Aligning it with performance is much easier in my experience as the sick employee will not be able to hit targets if there is so much time off but by the same token care is needed that you are not putting that employee under too much stress to cope with targets (and add to their sickness!)

 

[Employment Law Clinic]

We are all forced to use the services of government bodies (more red tape, often they don't know the answers or consider the whole picture and have you tried to get through to ACAS lately?) or we have to use the services of employment experts/consultants. I am not knocking them but this sledge-hammer-to-crack-a-nut hinders employers being able to understand laws and make sensible decisions rather than be scared witless every time there is an unpleasant situations to be dealt with.

Hi Maxine, and apologies I didn't picked up on your earlier comments already.

To take things in order (from your reply to Steve) yesterday, I would tend to agree about the disciplinary red-tape, although I think this is now more a confusing mess than firm regulations.

In the days before the 2004 Statutory Dispute Regulations, we had a simple ACAS Code of Practice, and employers would be expected to consider the principles of this in regard to their own procedures; no obligations, but tribunals would typically consider the ACAS CoP if the employer had nothing else suitable in place.

The Regulations & their principal Act - the Employment Act 2002 - changed all that, with strict rules about how to handle disciplinary & grievance procedures; one respected Employment Appeals Tribunal judge observed the criticism of the statutory processes as having provoked "a sea of negative comment of Pacific rather than Caspian proportion" - basically, everyone involved in employment law knew the legislation was badly drafted, but ministers would never accept it.

When the regulations were repealed earlier this year, some law firms appeared intent on highlighting the fact that failure to follow the new procedures could result in awards being uplifted by up to 25%; most didn't mention (or probably care for me to leave comments on their posts, but the ELC try to tell it is as it is, and not scare employers to seek out our services) that under the repealed regulations, awards could be uplifted by up to 50%, so actually some improvement for business - less regulation to follow, and smaller penalties for those that fall foul of the law.


I totally agree about getting in touch with ACAS; only option ever is to leave a message, and wait for a return call. And any government department you get in touch with, advice will be ambiguous. The alternative you mention - of using employment consultants - doesn't have to be a sledge-hammer approach though: as soon as I can offer some input on the processes, Employment Law Clinic should have simple & succinct guidance & flowcharts available for disciplinary & grievance procedures, and these will be freely available to anyone (no registration, logins, etc). We also offer a phone advisory service that is available to help talk any clients through these or any other employment procedures when the need arises - a monthly fee, and you can call up for help when you need it. Like ACAS, we can't always be available, but we guarantee to return calls within certain times (I think it's 3 hours or so during the day, in case we're stuck in court). Unlike your experience of ACAS though, we also consider the whole picture, as for the service to work well we take the time to learn about you & your business, so issues can be put into context when they arise. While no-one can make guarantees in employment law matters, I hope we can reassure clients enough that they're not scared witless every time there is an unpleasant situation.

As for newsletter subscriptions, unfortunately you're a few weeks too late! We only recently took down our old website (maybe premature, as the new one still needs work), and that had options to subscribe to a newsletter. Never was too popular though (perhaps not promoted heavily enough), so we're looking at different options now: use Twitter occasionally, and the Dates & Latest News page - employmentlawclinic.com/dates/ - includes a blog; I'm trying to get onto these forums more often too, and write occasional articles for other sites, so hopefully this will all be more live & relevant news that reaches a wider audience than the newsletter achieved.

Once the research is done on the zero-hours contracts, I will happily let people know where it's available.

Plenty more on this thread recently too, so I'll try to get back to those comments as quickly as possible.

Karl Limpert

 

[yorkshirejames]

Swine Flu will put paid to aligning bonuses to sick days. You'll end up paying the full bonus to your best member of staff who's been stricken with Swine Fever, and not paying the lead-swingers who've been off sick with bellyache. Watch the Bellyachers cry foul and discrimination when that happens.

I suppose when supervising menial workers if they must stay at home it may be that they cannot do anything. With more senior employees, they can of course work from home if they are contagious.

 

[Wild Goose]

I suppose when supervising menial workers if they must stay at home it may be that they cannot do anything.

That's confused me - did it come from a Government Advice Leaflet?

With more senior employees, they can of course work from home if they are contagious.

Uhhu, and what happens if one of them dies?

 

[yorkshirejames]

That's confused me - did it come from a Government Advice Leaflet?

Well I mean that lower level workers aren't usually given laptops and allowed to work from home.

Uhhu, and what happens if one of them dies?

Not a lot I guess.

 

[Wild Goose]

I totally agree about getting in touch with ACAS; only option ever is to leave a message, and wait for a return call. And any government department you get in touch with, advice will be ambiguous. The alternative you mention – of using employment consultants – doesn’t have to be a sledge-hammer approach though: as soon as I can offer some input on the processes, Employment Law Clinic should have simple & succinct guidance & flowcharts available for disciplinary & grievance procedures, and these will be freely available to anyone (no registration, logins, etc). We also offer a phone advisory service that is available to help talk any clients through these or any other employment procedures when the need arises – a monthly fee, and you can call up for help when you need it. Like ACAS, we can’t always be available, but we guarantee to return calls within certain times (I think it’s 3 hours or so during the day, in case we're stuck in court). Unlike your experience of ACAS though, we also consider the whole picture, as for the service to work well we take the time to learn about you & your business, so issues can be put into context when they arise. While no-one can make guarantees in employment law matters, I hope we can reassure clients enough that they’re not scared witless every time there is an unpleasant situation.

Karl Limpert

ACAS are of little use to most of the people on this forum as they have an annoying habit of favouring the employee's viewpoint - not for the purpose of playing Devil's Advocate, but rather because they appear to see their role as arbitratory. Add to that the obvious tender years and/or limited life-experience of some of their staff (not unlike teenagers dishing out Tamiflu on the Swine Fever line) and you'll find three wildy varying opinions should you ring three times about a matter.

All of which means I think you're on to a winner Karl. Hiring a HR expert who can analyse and interpret a problem from the employer's corner, and issue guidance that doesn't namby-pamby the employee(s), is the only viable solution for many. FSB are the cheaper and perhaps more cheerful alternative, and although I am told they are willing and knowledgeable, they have in my admittedly limited experience erred on the side of caution (eg verbal warning for a clear written warning offence). There has to be a market gap for someone who can fight tooth and nail for the employer.

We access Sentient's documents - bundled add-on as part of a subscription - but have yet to pass on any referalls. Maybe they just look too large and expensive for our SMEs.

Good luck, and keep us posted.

 

[ORDERED WEB]

I suppose when supervising menial workers if they must stay at home it may be that they cannot do anything. With more senior employees, they can of course work from home if they are contagious.

What a myopic comment

1. if you supervise "menial workers" you wont be able to do that at home
2. a laptop is not a badge that you have "made it"
3. "menial workers" ensure you have food on your plate, a sofa to sit on, a TV to watch etc.

There is only 1 approach to employment law / policies a company ought to have - absoloutley open, and even accross the board. As a manual employee - manager, worker or senior manager - every one will know where they stand

Managers are known to abuse the rules and take the mick as much as the people under them

 

[Wild Goose]

With more senior employees, they can of course work from home if they are contagious.

Swine Flu has some pretty rough symptoms: vomitting, dangerously high temperature, curly tail. I still say you'll be in trouble if a senior employee drops dead!

 

[Employment Law Clinic]

Top post Karl - thanks for sharing. I'm always inpressed with a lawyer who can be bothered explaining his ratio decidendi with us Plebs in the peanut gallery. Seriously Dude, your thoughts and rationale are valuable input to those of us who make good use of zero hours contracts.

I have worked with both types of schemes in the past and usually in call centres where the costs really stack up. Problem with aligning it to sick leave is that people then take the attitude "OK, so if I am prepared to forego X amount of bonus then I am entitled to X days sick" and therefore they effectively buy extra sick absence. Aligning it with performance is much easier in my experience as the sick employee will not be able to hit targets if there is so much time off but by the same token care is needed that you are not putting that employee under too much stress to cope with targets (and add to their sickness!)

Ok, I'm trying to catch up with this thread. Plenty added, but I'll focus on the above points, and hopefully cover other points in general too. First of all, I appreciate your comments Wild Goose. It's always been my practice to explain things clearly & properly - you own your business, and ultimately you have to answer for its every action. Sure, if things go wrong, you can sue your advisors, but that doesn't help you in the immediate.

My view is that you are effectively directing actions, albeit not knowing the details or complexities of each one. As the person ultimately in charge, I always feel the client should have a command & understanding of what this involves, so while not blinding the client with legal parlance (I saw a thread on here recently about ex-employees not competing, etc. The last thing I would want to suggest is a "restricted covenant", a relatively common & simple phrase & document, but not to everyone. If I ask for technical help, I don't want to be told my asp should be htm, which has an error with the psp or nintendo. I want it in plain language I understand - that piece of code is flawed because... ; do this and all will be good). I try to practice what I would expect from others, although law & plain English are not exactly happy bed partners. But where possible, I'm happy to leave detail to the pros, as long as we generally know what they are doing on our behalf.

Maxine comments about the "entitled" sick leave some staff have. I think I'm qualified to comment on this, being very familiar with the same: before Employment Law Clinic, I spent about 20 years working as a (modernising, if that helps ;-) ) trade union rep in the civil service. Never mind the bonus, some staff simply counted an amount of sick leave as part of their annual leave; bonuses were normally shared among the few anyway.

My job was to defend them, so I done this as best I could, but I always felt also that I had responsibilities to the other thousands of members I still had at their desks; they didn't enjoy so much time-off, so why should they work harder to cover the absence of others? And as a taxpayer too, it meant I was losing out. Members like this often didn't take to hard truths, but from their reps, as we weren't managers at least I could command their respect & get the message across.

As for what is the best option for bonuses, I prefer performance generally than lack of sick days: you don't want to encourage good, conscientious staff to come in when they're sick, although these are the only ones that typically do. Their presence will only encourage the slacks to claim they caught something off someone else, and would have achieved their full bonuses if you had prevented said virile infection from entering the workplace in the first place. Why should they lose a bonus because the management didn't protect their well-being?

Of course, targets have to be clear & achievable, but also tight enough that the slacks can't simply fudge their work to catch up on certain figures on their few working days.

Flexible working is a good idea, but it has its limitations: I can't man a public counter from home, but for back-room jobs on a computer, it is possible, practical, and more than ever a legal obligation for employers to at least give serious consideration to flexible working.

As for that tribunal case that I think James was interested in, I'll cover the detail soon. The case was lost, but I blame the employee client I was doing the favour for: the judge pointed out at one stage that my questions were leading, but after so many briefings & discussions about what the case involved, only to have the client give entirely different (and harmful to the case) answers in cross-examination & then not tell me what they had been saying for the previous year in re-examination, I couldn't see any other way to recover the case. We can choose our friends, but it's better not to take theirs as clients!


Made some contribution on a disciplinary flowchart, so hope that will be available soon, but not had time yet to delve into the law on zero hours. Weekend & early next week will be busy, but if time permits later in the week, I will certainly let you know how it goes & if I can offer any firm thoughts.


Karl Limpert

 

[yorkshirejames]

What a myopic comment

1. if you supervise "menial workers" you wont be able to do that at home

I never said one might.

2. a laptop is not a badge that you have "made it"

Maybe not, but in my experience they are given to people whom the employer wants to be able to work from other locations. Whenever I have worked for a company and been given a laptop there has been an unwritten expectation that I would check emails on an evening/work from hotel rooms if I was travelling/etc.

3. "menial workers" ensure you have food on your plate, a sofa to sit on, a TV to watch etc.

I'm sure. But there is usually a reason why people stay in lower paid jobs (and I do not mean to offend anyone by this comment - but clearly I have done). Many of the small business owners on here run a business that is making or doing something (I'm guessing you build furniture). The people you employ will have very different skills to those who work for me.

There is only 1 approach to employment law / policies a company ought to have - absoloutley open, and even accross the board. As a manual employee - manager, worker or senior manager - every one will know where they stand

Managers are known to abuse the rules and take the mick as much as the people under them

I was really referring to different companies, rather than one company having different policies. But yes, I would probably expect my finance manager to work remotely whilst he was contagious but wouldn't expect that of my cleaner. Obviously the law won't allow me to insist that either does work - but there is the law and then the reality.

 

[spiritofsheffield]

I run a corporate onsite massage business and I am a holistic therapist so get to see the other side of employees. Stress can have a huge impact on anyone young or old and you may need to look at what is causing these illnesses. Are you a small enough company where you know your staff and can talk to them individually? There can be a number of factors causing her illness, mental or physical, does she have problems at work or at home? Having a medical assessment is a definite but I also think you should talk to her or arrange someone else to talk to her and provide a review system at work whereby your staff can give you feedback on their role. I have worked in enough organisations to know that communication is the key to a happy employee and employer.

I hope this helps

 

[applemaidcleaning]

Not going to read all posts but..

If an employee catches swine flue in the work place they can sue the employer for thousands...

We have seen in an increase of cleaning requirements because of this, and due to the products we use.

"Just because it looks clean - it dose not mean it is clean"

 

[LyndaSandick]

I recently attended a seminar from Mentor which is the arm attached to Nat West that deals with Employment Law. It was fascinating and slightly unnerving as to how much as employers we don't know about employment law. As a result of that seminar I have signed up to mentor who will now write all of our employees contracts of employment, rework the company handbook, cover grievances and disciplinary procedures and be at he end of the phone should we need advice. They also keep us up to date with new legislation. Worth every penny!

 

[MikeD08]

Not going to read all posts but..

If an employee catches swine flue in the work place they can sue the employer for thousands...

We have seen in an increase of cleaning requirements because of this, and due to the products we use.

"Just because it looks clean - it dose not mean it is clean"

An employee could try to sue the employer but from what I understand this would be very difficult as the employee would need to prove that the illness was contracted in the workplace and not from walking down the street/public transport/ in the pub etc.

 

[applemaidcleaning]

An employee could try to sue the employer but from what I understand this would be very difficult as the employee would need to prove that the illness was contracted in the workplace and not from walking down the street/public transport/ in the pub etc.

True..

But if someone in the work place has already got it and still aloud to work, then they catch it....

 

[MikeD08]

True..

But if someone in the work place has already got it and still aloud to work, then they catch it....

They'd still have to prove it was contracted in the workplace.