Probabtion period, sickness & termination

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barnowl

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May 2, 2017
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Hello,


My wife & I run a small preschool. We’ve recently employed someone on a part time basis who’s about 2 months through their probation period of 3 months. As yet she’s not returned her signed contract and we’ve not signed it either.


So far in the 2 months she been on and off sick, texting in for different reasons each time explaining she’s not in. All of these occasions have been in breach of the contract whereby she must phone her manager 2 hours before shift starts, not via text, what’s app or social media.


Now she has been of sick for the last week, today saying that she won’t be in as she’s been signed off by the GP and is requesting SSP.


We want to terminate her employment before the 3 month probation period ends. The contract (which neither of us have signed) states that we must give 5 days notice when terminating employment during the probation period. Regrinding the SSP the government website states that to eligble for SSP the employee must have a contract.


I’m under the impression that we should stick to the contract’s wording/spirit and give notice of termination, following the 5 days notice. My question is this? Am I within my rights to do this despite her being signed off sick?


My second question is, is she eligible of SSP despite having a contract, but not signed it? Obviously I’m not happy with her performance and I feel aggrieved that I have to pay her a penny as she’s been absent a lot within the probation period.


Thanks
 
Hello,


My wife & I run a small preschool. We’ve recently employed someone on a part time basis who’s about 2 months through their probation period of 3 months. As yet she’s not returned her signed contract and we’ve not signed it either.


So far in the 2 months she been on and off sick, texting in for different reasons each time explaining she’s not in. All of these occasions have been in breach of the contract whereby she must phone her manager 2 hours before shift starts, not via text, what’s app or social media.


Now she has been of sick for the last week, today saying that she won’t be in as she’s been signed off by the GP and is requesting SSP.


We want to terminate her employment before the 3 month probation period ends. The contract (which neither of us have signed) states that we must give 5 days notice when terminating employment during the probation period. Regrinding the SSP the government website states that to eligble for SSP the employee must have a contract.


I’m under the impression that we should stick to the contract’s wording/spirit and give notice of termination, following the 5 days notice. My question is this? Am I within my rights to do this despite her being signed off sick?


My second question is, is she eligible of SSP despite having a contract, but not signed it? Obviously I’m not happy with her performance and I feel aggrieved that I have to pay her a penny as she’s been absent a lot within the probation period.


Thanks

You could argue that she hasn't reported her sick leave, and therefore is absent without leave. You don't have strong grounds here (particularly as you don't seem to think you have a contract - although you do, it doesn't need to be signed by either party), but an argument could be made if you really wanted to avoid paying even SSP, although if the GP has signed her off, she'll probably send in a completed Fit Note now, signed on the back to claim SSP.

The three months probation is neither here nor there - it's meaningless, as you can dismiss anytime in the first two years, and the notice you have to provide is one week. Unless your contract provided more notice after the probation, it really offers no meaningful benefit (to either party), but other terms in the contract would probably apply even if not signed.


Karl Limpert
 
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Newchodge

Business Member
Nov 8, 2012
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Newcastle
What did you do each time she texted her sickness absence in breach of the policy?

The first time it happened did you call her in on her return and explain that she was in breach of the sickness policy and if it happened again she would be absent without justifiable reason and appropriate action would follow; or did you just let her get on with it?
 
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barnowl

Free Member
May 2, 2017
6
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No, we let her get on with it and didn't question it. We've learn't from that.

Since informing her that SSP doesn’t apply to her, she’s suddenly recalls an incident at work the previous week. She saved a child from falling of a climbing frame. She thinks her back pain is linked to this. She states that at the time of the incident she didn’t feel any pain, only later in the evening did the pain start. Now she is linking the incident and her back pain.


The incident wasn’t reported at the time. We’ve asked her to come in immediately so we can conduct an investigation and ascertain what happened to the child and her. She has said she should be able to return to work next Monday and will bring her union rep with her for the investigation.
 
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Newchodge

Business Member
Nov 8, 2012
16,221
4,584
Newcastle
Have you not written to advise her that her services are no longer required because of her failure to adhere to sickness policies and her failure to attend work regularly.

Presumably you also have policies in place for reporting incidents such as the one she describes? If so you will also be dismissing her for that reason.
 
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barnowl

Free Member
May 2, 2017
6
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Not written to her yet. We have documented policies and procedures for incidents which weren't followed by her

We will have her come in to investigate, record and document the incident. Then wait for a week, then send dismissal referring to poor performance and attitude.
 
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Newchodge

Business Member
Nov 8, 2012
16,221
4,584
Newcastle
Not written to her yet. We have documented policies and procedures for incidents which weren't followed by her

We will have her come in to investigate, record and document the incident. Then wait for a week, then send dismissal referring to poor performance and attitude.

Will you challenge her during the meeting about not reporting the incident at the time? I would have thought that would be the time to tell her she is dismissed for failing to follow that procedure in addition to poor attendance.
 
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barnowl

Free Member
May 2, 2017
6
0
Yes we will challenge, however i've been advised to not link her back pain, and alleged incident to the reason for dismissal as she could use this as part of a disability discrimination. I've been advised to wait for her return, conduct investigation, make our points about procedure, then terminate services a week later following a separate 1:1 which will detail the poor attitude, breach of sickness reporting and timeliness.
 
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Newchodge

Business Member
Nov 8, 2012
16,221
4,584
Newcastle
That is not very good advice. First she does not have a disability. Second failing to report a serious incident involving potential harm to a child should be gross misconduct and lead to instant dismissal.
 
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barnowl

Free Member
May 2, 2017
6
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I don't know if she has a disability or not, she doesn't have disclose her back problems to me. But linking her dismissal with the back problems could result in her using that as discrimination. It's advice I'm willing to take. I know she doesn't have a disability and I know she is a money chasing fraud.

We'll use the non reporting of the incident, amongst other issues. But this will be done a week later so not to link her return to work with dismissal exposing any potential discrimination claim against her alleged disability.
 
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Newchodge

Business Member
Nov 8, 2012
16,221
4,584
Newcastle
I think you can not adhere to the contract and not notify her for 5 days. The contract is not yet signed and does not enter into force.

I don't think you have the faintest idea what you are talking about. An employment contract does not have to be in writing. If it is in writing it does not have to be signed. Anyone who has worked for 4 weeks or more must be given at least 1 week's notice of dismissal unless they are being dismissed for gross misconduct.
 
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@barnowl, I agree entirely with Cyndy, that you need to simply dismiss - for any of the reasons mentioned above, or none (you don't have to give a reason for dismissal).


This ridiculous idea that leaving this as a separate matter, a week after she returns, only makes it look as suspicious as her sudden recollection of an incident, implying that you have something to hide, aren't confident in your decision. If I was advising her, I would suggest using this caution to test your resolve with ACAS Early Conciliation (regardless of intention to proceed to a tribunal claim), expectant of getting something for nothing from you. I think you’ve been badly advised, and need to act decisively, don't delay or hint at caution with your actions.



Karl Limpert
 
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