Evidence of sickness- your impacts on employee?

[Crocus]

An OH report on an employee highlighted a dependency issue they needed to address and said this was likely to be the cause of the behaviours and performance concerns that were the reason we sent them to OH in first place.

I have required them to take action and required adjustments on both sides to mitigate liability risks in our business. They disputed that this dependency was anything other than a private matter, thankfully they started attending a treatment centre, though advise me they are not ready to stop yet.

However, they refused to consent to any adjustments, testing, or to give consent for me to speak with their support team to establish what impact this dependency might have- basically to get a medical view that backs up the employee's stance. (They say their private medical issues are not impacting on their job and put the whole behvaiour and performance down to internal communication issues).

They then went absent from work - it's been 16 days (11 work days).
Un- Certified either by self cert or fit note despite repeated requests.

They have now written a letter adamant that my requirements for random testing and adjustments in the workplace are unfair and said they are off work with depression and stress caused by my actions. And that my requests are damaging to their treatment plan.

I am a micro business- 3 employees. I have procured an HR person but nervous at the legalities of approach they are taking, and they tell me I cannot speak with their lawyers unless we get to tribunal stage- which I don't want to get to!!

Got a quote from a recommended lawyer to look at the case they quoted £3K just to advise on a strategy, which I don't have.

HR have written a letter saying this is unauthorised absence and may be disciplinary and said a fit note must be produced prior to pay day.

They have advised me I can withhold SSP- but I don't think this is right?

We've procured another OH follow up report, putting over the employee's stance. And asking some specific questions. OH state that based on the level being consumed "this person should be absent from work". And that they are not medically fit to do the job. So how can I employee someone under this advice? But what if the employee's GP signs them off as fit for work.

We now have another HR letter gone out asking for a meeting next week to discuss this latest report (also sent to employee) and specifically to get their response to the OH report.

My biggest concern is the employee has written to say my specific actions in this matter are impacting on their mental health and so chasing for paperwork and meetings might be considered damaging.

I think HR are wrong about the withholding SSP- employee has notified me they are sick, no certificates but HMRC says cannot withhold if a note is late?

Does anyone have any SSP insight, or insight into what is reasonable for an employer to do in this scenario so I don't make things worse for all concerned?
thank you!

 

[Employment Law Clinic]

Hi Crocus,


Your post isn’t too clear, but if I understand correctly, you have a HR advisor but are uncomfortable with their advice. Said advice addresses whether you should pay someone off sick who hasn’t produced a sick note – you’re preferring the views of HMRC.


And you’re spending lots of money on OH reports too.

Does anyone have any SSP insight, or insight into what is reasonable for an employer to do in this scenario so I don't make things worse for all concerned?

thank you!

Are you interested for all concerned, including the dependant that has declined to accept any adjustments, testing, or giving consent to contact with their support team, or the employer?


If you haven’t got a fit note declaring the absence as being on the advice of a medical professional, you’re fine to withhold SSP. HMRC (and I suspect DWP too) will tell you otherwise, but I advised a client once to withhold maternity pay, as the documents weren’t received (they were received, but they were late, sufficient grounds to withhold SMP). The employee didn’t like it, and the employment tribunal thought it was indicative of discrimination, but the Employment Appeals Tribunal confirmed these decisions are not something an employment tribunal can consider.


What do you want to achieve? I would support your HR advisor, not to pay without a fit note, and treat the absence as unauthorised. If you want a more formal second opinion, and a strategy (which may simply agree with your current advise, even if I don’t see that), get in touch by PM – it won’t be £3k.



Karl Limpert

 

[Crocus]

Thanks for the example Karl. While I see your point, can you see that as a tiny business we're not interested in doing anything that might land us in a tribunal even if ultimately our actions would be supported.

So if I understand you correctly that both HMRC and DWP would consider that withholding was not good practice, I am not going to go there.

What I want to achieve- is a strategy for protecting the business.
I think I would treat the SPP payment and the lack of any fit note as 2 different things. So pay the SSP but still push for proof of illness.
I am worried that pushing too hard might be seen as damaging by others but I guess on that point I have OH behind me.

 

[Employment Law Clinic]

Thanks for the example Karl. While I see your point, can you see that as a tiny business we're not interested in doing anything that might land us in a tribunal even if ultimately our actions would be supported.

Putting an advert for a job vacancy in a shop window can land you in a tribunal. But you’ve filled 3 posts, so obviously you’ve offered vacancies previously – an action that itself had the potential to land you in an employment tribunal.

So if I understand you correctly that both HMRC and DWP would consider that withholding was not good practice, I am not going to go there.

No, you don’t understand me correctly. The policies of HMRC & DWP when it comes to paying SSP are that you can pay this if you have documents to support the reason for absence.


However, the muppets that you’d speak to on the phone won’t have a clue what the rules are, and will just muddle on, erring on the side of caution, just tell you to pay as that sounds like a good approach.

What I want to achieve- is a strategy for protecting the business.

I think I would treat the SPP payment and the lack of any fit note as 2 different things. So pay the SSP but still push for proof of illness.

I am worried that pushing too hard might be seen as damaging by others but I guess on that point I have OH behind me.

A strategy for protecting the business is probably managing this employee, either to attend work, or to be in a position of seeking employment. The SSP payment is based on the Fit Note, without which you don’t know that she’s unfit for work (and she hasn’t even self-certified).


Being over cautious may be damaging to your business, but you have OH & a HR service behind you if are worried.


I get the sense that you’re concerning yourself too much with the risk of a tribunal claim, and will do anything to avoid that. But if you have someone in your employment that isn’t attending work; has a dependency, but won’t let you know the details, or the treatment being received, or to allow you to confirm that she isn’t under any influence at the workplace; and refuse to consent to any adjustments to the workplace (a dependency is not protected by equality law), I would go with the HR advice of disciplinary, with dismissal a possible outcome.



Karl Limpert

 

[Crocus]

Thanks Karl, you are right I am terrified of a tribunal.

Your last paragraph summed it up bang on, I think what I find off putting about the HR advice is the manner in which it is delivered. Perhaps sometimes they come across as this scenario being something to "win" and a game, whereas for me every day and every contact is sick to the stomach worrisome.
Your final paragraph was clear and factual many thanks.

 

[Employment Law Clinic]

Thanks Karl, you are right I am terrified of a tribunal.


Your last paragraph summed it up bang on, I think what I find off putting about the HR advice is the manner in which it is delivered. Perhaps sometimes they come across as this scenario being something to "win" and a game, whereas for me every day and every contact is sick to the stomach worrisome.

Your final paragraph was clear and factual many thanks.

From your posts, I can’t be critical of the advice that you’ve received from your HR service (although I wouldn’t have bothered with OH consultancy – just an extra expense), but if they don’t give the advice in a manner that you want, or advice that supports your way of managing staff, I would be critical of that. They’re there to serve you, not offer advice by rote, or treat a case as a challenge.


I’ve had clients in the past where resisting/defending tribunal claims is a “win”, and that was a big objective they had – and advice was served accordingly. (They did have a stream of claims against them, such that I sat in the same tribunal two days in a row, facing the same judge, with entirely different & unrelated claims against the same employer for each hearing. We managed to persuade many other ex-employees not to take a tribunal claim, and dismissed a pregnant employee fairly (which was a “win” for the employer), but that’s the client’s choice.)


Many others, like yourself, would prefer to extend lenience (or exercise caution), and the advice is tailored to the client’s preferences – with all options, and recommendations, provided.


The service for a small business should be as much to support the employer as handle the employee in a fair & legal manner.


Karl Limpert