How to dismiss a long term sick employee?

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Firstly, we're not as nasty as the thread title implies!
We are a very small tree surgery company with just 5 employees: 1 director/surgeon, 2 f/t tree surgeons, 1 p/t (15 hrs/wk) groundsman and me (everything other than tree shimmying!). The on-site work is very physical involving climbing, chainsaws, dragging large chunks of wood, using a woodchipper etc. Cash is always incredibly tight although business, in the main, is good. We also use sub-contractors where necessary. Everyone has a contract. Employment contract has automatic 6mth probation period & a fairly robust sickness policy (after probation, 5wks full pay, 5 wks 1/2 pay, rising by 1 wk per year). During probation period, notice is 1 week either way, afterwards it's 1 month.

The P/T groundsman became an employee on 1st November (with the 15hrs thing to help him with the CSA). We paid £795 to put him through a chainsaw course in October (there's a claw back in the contract of 75% of training course if employee leaves within 3-6 mths of the training). He had an known issue with his shoulders which, on occassion would dislocate - few days rest, all back to normal. On a job in December he was jumping into a van and one shoulder popped. It took 2 hrs to get back in (ambulances, major painkillers etc). He subsequently was off-sick, but because of Christmas & the fact he only actually worked 2 days a week it wasn't too bad and he managed to fulfil his 2 days per week through use of TOIL accrued.

Since Christmas he has been 'in work' for only 2 days. He was paid full pay for January on the understanding that (as we were told he would) for the first 2 weeks of Feb he would do 4 days/week, effectively 'paying back' the 2 weeks in Jan when he got paid but didn't work.

He didn't come back to work. Towards the end of February we received a scanned (still haven't had the original) fit note dated 22 January saying he would be unfit for 6 weeks - taking his period of sickness to 5 March. For Feb, to get the records straight he received SSP, with his period of sickness start date as 11 Feb (as he'd effectively had full pay for the 1st 2 weeks in the Jan payroll), of £128. We have been verbally informed from a familymember, not by him, that he must have operations on both shoulders and is likely to be out of action for at least 6 months. We have not received another fit note (but today is only 6 March).

So, situation is that we really can't afford to pay for an employee who isn't there and who isn't likely to be there for a long time. He is still in his probation period BUT it's complicated by the part-time, the training claw-back and by the sickness so how do we go about a fair dismissal? Is it a capacity thing? Is it a simple '1 weeks notice' paying him full pay for the week (but with the claw-back he'd be paying us)? Should we meet with him to determine likely future ability to perform the job? There really isn't any other suitable job for him to do and the job he does would likely injure him even more. All help greatly received. Thanks.
 
Towards the end of February we received a scanned (still haven't had the original) fit note dated 22 January saying he would be unfit for 6 weeks - taking his period of sickness to 5 March. For Feb, to get the records straight he received SSP, with his period of sickness start date as 11 Feb (as he'd effectively had full pay for the 1st 2 weeks in the Jan payroll), of £128. We have been verbally informed from a familymember, not by him, that he must have operations on both shoulders and is likely to be out of action for at least 6 months. We have not received another fit note (but today is only 6 March).
What is the reason for absence per the Fit Note? And why was he off in January? Is there a Fit Note to cover this period?
He had an known issue with his shoulders which, on occassion would dislocate - few days rest, all back to normal.
It’s possible this would be treated as a disability. That wouldn’t prevent dismissal for capability, but it would require you to make reasonable adjustments to allow for any disability before determining whether capability has become an issue warranting dismissal, as he would have a right to claim unfair dismissal based on disability.
Should we meet with him to determine likely future ability to perform the job?
You should be meeting with him to discuss his absences, including why he hasn’t provided any appropriate evidence of his medical reasons for not being at work! Have you even asked him why he hasn't sent the original Fit Note in?



Karl Limpert
 
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Hi Karl, thanks for replying. In answer to your questions...
Reason for absence is "shoulder injury"
We had, in our first week back (w/c 7.1.13) purchased a shoulder brace for him which arrived on 16.1.13 (he worked 14th & 15th). He was off sick in this week, (covered by the 1st 7 days thing), worked 2 days in w/c 14.1.13, with the fit note dated 22.1.13 covering the following week & up to 5.3.13.
Yes, we have asked - in writing & by telephone and it was only the threat of not getting anything in the February payroll that generated the scanned & emailed fit note which was sent by his father! He was asked again yesterday to send in the original note & i got the usual promises of "I will"... I'm not holding out a lot of hope!!

Re: meeting with him... I agree, we need to. Before arranging it, I need to be clear on the purpose of the meeting... is it solely to discuss his sickness absence and likelihood of returning to work? Given that we effectively know that there is very little chance of this for the forseeable future, what next? Can we discuss dismissal on grounds of capability at the same meeting? Since he's still in his probationary period, do we need to discuss capability at all? Given the nature of the job (mostly lugging bits of wood around, groundwork with a chainsaw etc), reasonable adjustments are nigh on impossible since employing someone else to do the physical work whilst he is on-site being non-physical, defeat the object of his employment. As I said in the original post, there really is no alternative post for him to take on which would avoid exacerbating his shoulder problems.

Just to clarify, why would this be a disability since it is listed on the fit note as an 'injury' with the expectation that surgery would solve the problem. Are there time limits on how long a person has had a 'condition' which make it a disability (implying permanence of condition)? If so, what are they/ I'm conscious that it's less than 2 months since we have any medical opinion (the fit note) and that opinion clearly states "injury".

You're fab for helping, thanks.
 
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You need to set up a meeting with him asap to discuss his absence and the prognosis for return. You should not be considering dismissal at this stage as he could be classed as disabled (because potentially this condition has impacted on his day to day life for at least 12 months previously). You should certainly not be considering dismissal whilst he is in receipt of SSP anyway and should take specialist advice for terminating him if he is classed as disabled. He needs to know that you need original fit notes in order that he gets paid.

I would recommend you get an independent occupational health advisor to do a report on him which will help you decide whether you can dismissal for capability once his SSP runs out or whether you may need to consider some sort of reasonable adjustment so he can remain at work. I can recommend a specialist if you need one.
 
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Thanks Sandra.

On his 'Employee info' form (like an application form) he stated that he had no long term health issues which would affect his ability to do the job. The form also asks if there are any adjustments that would need to be made in order to facilitate him doing the job - he answered no. So, we checked in November (when he started as an employee) whether he was 'disabled'. To clarify, the form doesn't just ask about registered disabilities, it asks about any long term health issue.

I find it difficult to understand how someone who, by his own admission, did not have a long term health issue could be classed as disabled in 6 weeks (ie from 22 January when his fit note is dated).

The entitlement to SSP is accompanied by a current fit note, yes? His fit note ran out on March 5th, so 'technically' he's not in receipt of SSP now. Also, 'technically' since we haven't yet had an original fit note, his entitlement to the SSP he has received is also questionable, yes? (I assume that our payment of the SSP is an acceptance of the scanned note as valid so this argument wouldn't hold up very well if questioned, but it's an argument all the same)

As I mentioned before, reasonable adjustments above what we've already done (buying a shoulder brace for him) effectively invalidate the purpose of his employment. As a small company we cannot afford to have an employee that does not work, or does not do the work he was employed to do.

Any details on an OH Adviser somewhere in East Scotland would be great. The only one I know is in Aberdeen which is a bit far from Fife (where we're based). Many thanks.
 
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The occupational health advisor will be able to establish if he is disabled or not provided he cooperates. If you email me at [email protected] I will give you the name of the OH provider and some extra pointers.

An original fit note is required to comply with SSP. He should give you the original and keep the copy for himself. You should let him know this during the meeting otherwise he will invalidate his SSP. In the meeting you also need to state he needs to cooperate with the OH provider. Please ensure you document the meeting and keep on file.

It seems like you have made a reasonable adjustment by providing the shoulder brace and it is thoroughly understandable that as a small business you can't afford to bear his absence in the long term.

If the OH report states he is disabled and there are no other reasonable adjustments that can be made to keep him in work then you may dismiss for capability reasons. Likewise if the report states there is no disability you may terminate. You will need to follow a fair dismissal procedure. However in either case you must exhaust SSP fully first.
 
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Newchodge

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Nov 8, 2012
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The entitlement to SSP lasts for 28 weeks. You do not have to wait until that is exhausted to take action.

Disability for employment law purposes is defined as

"a physical or mental impairment that substantially affects normal day to day activities and has lasted or is expected to last for at least 12 months."

While a doctor can advise you whether they believe an impairment amounts to a disability in these terms, the decision is not a medical one, but will depend on the extent of the day to day impact.

You should meet with him, get as much information as he has about prognosis, timescales etc. Insist on his supplying original fit notes on time.

Once you have all the information then is the time to make a decision.
 
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OK, letter written & sent inviting him for a meeting to "discuss the issue".

Thanks for everyone's help, we just want to do what's equitable for both parties. I don't think he's the type of guy who'd be running off to tribunal so that's not my main concern, but it's a case of being fair for all concerned.

We'll ask at the meeting re: OH & take it from there. In the meantime, with no current medical certificate, it's costing us nothing!
 
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