Final Stages of Disciplinary - Advised of Mental Health

Discussion in 'Employment & HR' started by Daniel Worrall, Jun 2, 2021.

  1. Daniel Worrall

    Daniel Worrall UKBF Newcomer

    3 0
    Good Afternoon,

    Summary:

    We are in the final stages of a disciplinary with an employee. A letter was sent home to the employee to advise of disciplinary hearing Tuesday 01/06 at 10:00. At first, didn't turn up to start work at 07:00 and advised colleague would be in for meeting at 10:00, then emailed into work (HR) on Tuesday (01/06) to advise struggling with Mental Health.

    Background:

    This particular employee is going through the disciplinary process due to lateness, sickness and general timekeeping. They called in 1hr after their shift was due to start on Wednesday (26/05) to advise they would be in late. Since then, from a HR or Management point of view, we have not heard from this employee, until yesterday (Tuesday 01/06). However, the employee in question houseshares with another employee who passed on a message that they had slipped on the stairs rushing to get to work and had to go to A&E. The houseshare employee also advised the other person has been fine and going out. No contact made with us the rest of the day or Thursday. I tried to make contact with them on Friday as we have not heard anything (other than arriving late on Wednesday), but no answer and left a voicemail. As this was now AWOL along with Lateness/Sickness triggers, the next stage of disciplinary process was to send out a letter for their disciplinary hearing. On Tuesday we received an email to advise that they are struggling with their Mental Health and have not been able to contact us due to their phone not working. One of the days during the sickness was actually booked off by this employee, but was rejected due to being too busy. The employee was given notice of this and fully aware it was rejected.

    As it stood on Friday, with the triggers met due to Lateness/Sickness and being AWOL, we were due to have a disciplinary hearing yesterday (Tuesday 01/06) to discuss their future with the company and the intention of dismissal (pending the employee's reasoning). Now we are at a stand still as the employee is claiming to be suffering from Mental Health. Discussing with the employee's manager, he advised we were told that they were not suffering with any issues or on any medication when asked recently during a review.

    What I would like to know is where we stand in regards to the dismissal and disciplinary process as we had already made a decision on the outcome (pending the meeting response), but now it feels it wouldn't be fair now that Mental Health has been used.

    As of now (Wednesday 02/06) we have not heard from the employee and are waiting for them to return to work to carry out the Return to Work meeting and the Disciplinary.

    - Is not following our Sickness Reporting Procedure Gross Misconduct?
    - Is being off "sick" on a rejected holiday Gross Misconduct?
    - Would we be subject to tribunal if we were to dismiss the employee (based on disciplinary procedure) now that Mental Health has been made aware?
     
    Posted: Jun 2, 2021 By: Daniel Worrall Member since: Jun 2, 2021
    #1
  2. Frank the Insurance guy

    Frank the Insurance guy Full Member

    531 165
    Unfortunately, once mental health comes into it, you are restricted in what you can do.

    However, you can follow your sickness procedure - ie. what are your requirements to payment of sick leave in the employment contract - if it is SSP only, you can do that and await their return to work to rearrange the disciplinary meeting.

    They should still need to comply with your sickness policy, including providing sick notes etc.

    That is my opinion, but I'm sure one of our experience HR members will be along soon.
     
    Posted: Jun 2, 2021 By: Frank the Insurance guy Member since: Oct 28, 2020
    #2
  3. Daniel Worrall

    Daniel Worrall UKBF Newcomer

    3 0
    Thanks for your input Frank.

    The employee will be on SSP as they have had multiple sickness instances within the 12month rolling period (only started employment Dec 2020) so they have used the 3 days Company Sick Pay. They have advised they will be brining in a doctors note. Before the Mental Health issue was made aware to us, they had triggered certain stages of our Bradford Points Sickness Tracker so they were sent a letter inviting them to a disciplinary hearing. What I assume now is that process would be on hold now that Mental Health has been mentioned?
     
    Posted: Jun 2, 2021 By: Daniel Worrall Member since: Jun 2, 2021
    #3
  4. WaveJumper

    WaveJumper UKBF Legend

    2,278 573
    As above follow all your procedures to the letter and I am sure you are but keep all notes / records and phone calls up to date. I am sure our resident HR guru will pick this one up very soon. Out of interest how long has this person been in your employment.
     
    Posted: Jun 2, 2021 By: WaveJumper Member since: Aug 26, 2013
    #4
  5. NickGrogan

    NickGrogan Full Member

    2,976 725
    Have they been diagnosed with something, or is this a self-diagnosis?

    Acas has some useful information

    https://www.acas.org.uk/supporting-mental-health-workplace

    You can't fire them because of the mental health issue, that would be discrimination.

    If you can show that you've followed the correct processes that you would follow with any other employee, you can terminate them

    So no problem, just tell them that is it not working out and let them go.
     
    Posted: Jun 2, 2021 By: NickGrogan Member since: Nov 15, 2012
    #5
  6. The Byre

    The Byre Full Member

    11,642 5,055
    This is one for Cyndy - aka @Newchodge - to answer!
     
    Posted: Jun 2, 2021 By: The Byre Member since: Aug 13, 2013
    #6
  7. Daniel Worrall

    Daniel Worrall UKBF Newcomer

    3 0
    Employment: 0 Years, 5 Months, 19 Days

    Hi Nick,

    Yeah that was the point I was trying to make. They were basically due to dismissal based off the sickness, lateness and timekeeping alone. Thats why the initial disciplinary hearing was setup. It was nothing todo with the Mental Health, but now it feels like if we took any action "I was fired because I was suffering from Mental Health" would be the expected response. As I mentioned above, the decision to setup the hearing was made on Friday with the intention of dismissal on Tuesday when they returned to work (obviously pending their response to why they were off and given a chance to explain themselves) before we even knew anything about the Mental Health. Also mentioned, when we discussed this with their manager, he said during a review recently we had asked and they were on no medication or suffering from anything.

    It seems to be self diagnosed and thats why we are waiting for them to return to work to see the sick note. After trying to look into "Mental Health during Disciplinary" I saw alot of responses about people using it against an employer to protect themselves as its a delicate subject and must be handled correctly. I know its taboo to think about etc (especially from a HR point of view), but with Mental Health being used as a potential weapon due to how an employer has to respond is not really fair on the people who do suffer with Mental Health, if this is just a ploy to disregard the current disciplinary process even after advising during a review they were not suffering with any issues or on any medication.

    The bottom line we are looking at is, where do we stand if we was going to dismiss the employee based off Lateness, Sickness and Timekeeping disciplinary actions alone (and nothing todo with Mental Health - before it was even made aware).
     
    Posted: Jun 2, 2021 By: Daniel Worrall Member since: Jun 2, 2021
    #7
  8. Frank the Insurance guy

    Frank the Insurance guy Full Member

    531 165
    Hi @Daniel Worrall

    Do you have a legal expenses insurance policy or a Management Liability (Directors & officers liability with an Employment Practices Extension) - if you do, give them a call and follow their advice. As long as you follow their advice they will deal with any resultant claim (if it is made).
     
    Posted: Jun 2, 2021 By: Frank the Insurance guy Member since: Oct 28, 2020
    #8
    • Thanks Thanks x 1
  9. NickGrogan

    NickGrogan Full Member

    2,976 725
    I'd let them go, after checking my insurance first.
     
    Posted: Jun 2, 2021 By: NickGrogan Member since: Nov 15, 2012
    #9
  10. WaveJumper

    WaveJumper UKBF Legend

    2,278 573
    Ok just playing devil’s advocate for a moment (before Cyndy comes along) what do your own company procedures say about dealing with mental health issues in employees. Are you following them (do you have any) worth making sure you are covering all the bases.
     
    Posted: Jun 2, 2021 By: WaveJumper Member since: Aug 26, 2013
    #10
  11. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

    3,363 1,593
    You stand at the exact same place as you were before – having made the allowance of a delay to the final hearing, due to sick leave.


    The fact there is now a minor mental health issue is irrelevant, a complete red herring. There is no inference or suggestion that this mental health issue is a long-term issue, and no reason to infer that it could be. Ergo, there’s no reason to assume this is a disability, and it can be ignored for all practical purposes.


    The potential dismissal is being considered due to poor conduct (timekeeping & being AWOL), and capability (sick leave). The triggers have been met, and the procedure should be completed.


    Karl Limpert
     
    Posted: Jun 4, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #11
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  12. KAC

    KAC UKBF Legend

    1,529 368
    Good to see you back @Employment Law Clinic :)
     
    Posted: Jun 4, 2021 By: KAC Member since: May 7, 2017
    #12