Ask the expert: Disciplinary while off sick

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How can we sort out disciplinary while the employee is off sick? John Brandon and Esther Smith advise.
 

 

The question:

I have an employee under an existing disciplinary sanction, who now has another 'issue' over capability and have asked them to attend another disciplinary meeting. They have responded by getting themselves signed off sick with 'stress' for two months. Whilst I appreciate one should not really conduct a disciplinary (in absence) if the employee is signed off sick, is there a reasonable time frame in which I could invite the employee to attend a hearing - say towards the end of the two months? Or should I just wait until they return to work, which could be some time? Also, does anyone have any experience of what is reasonable time from being signed off to asking employee to attend occupational health advisor? I was thinking after about four weeks in this case? Also would I be within employer’s rights to ask employee if they could give me an update on progress from their GP after four weeks? (It seems a bit unusual to me that GP has signed off for two months but then this will take the employee over the 12 months service line so am not really that surprised).

Legal advice:

 

John Brandon, solicitor, Speechly Bircham

Dealing with disciplinary and similar issues when an employee is absent due to illness is always a minefield and one on which you should take full legal advice due to the potential risks.

I think that you have two broad options. Your first option is to hold a disciplinary hearing while the employee is off sick. You should still invite her to attend the hearing even though she is signed off sick but make clear it is her choice as to whether she attends. There may be a risk of her alleging this has exacerbated her illness and could give rise to other claims. If she does not want to attend, then give her the option of submitting written representations for you to consider.

It is however only worth doing this if the capability issue you mention is enough to justify dismissal at this stage (either because it is serious enough itself to justify this or the previous disciplinary sanction can legitimately be taken into account and would allow you to dismiss her as the next sanction), or if you are likely to dismiss her in any event and want to do this before she accrues one year’s service and therefore obtains unfair dismissal rights.  Otherwise, it is best to wait until she returns as it will only be on her return that you can deal with the performance concerns. There is no point in taking the risks involved in holding the hearing before she returns when you cannot progress the capability issues as she is away from the office meaning you cannot manage her performance.

You should also be aware that there is a significant risk in doing this in the event that the employee is disabled under the Disability Discrimination Act 1995 as length of service is not a condition to bringing a discrimination claim.  It is not possible to give you any guidance on these risks as we would need a lot more information to be able to do so. If an employee is disabled (and it is not always possible to know this and it is always best to be careful when making assumptions), then they will require very careful handling and I would recommend you obtain legal advice (and possible medical advice) prior to taking any action.

Certainly holding a disciplinary hearing before she returns and dismissing her in this way is likely to give her a basis for complaining (regardless of the merits of her disability discrimination claim) and may lead to her bringing a claim so there is a risk in doing it this way.

Your second option is to wait until the employee returns and hold the hearing then. This is the safest approach for the reasons given above but will mean that she will go over the one year’s service threshold and will therefore accrue unfair dismissal rights. She will therefore have greater protection and you need to follow a proper process before dismissing her. You will also have to pay her sick pay while she is off in accordance with her right to Statutory Sick Pay and any enhanced entitlement she may have. If she is off sick longer term, you may be able to justify holding the hearing in her absence depending on the circumstances (although this will entail a risk) or dismiss her on the grounds of ill health/capability (rather than for disciplinary reasons). To do this, you would however need to obtain medical evidence that she was not able to work longer term as well as observing the disability discrimination rules, if applicable.

In relation to your other questions:
What is reasonable time from being signed off to asking employee to attend an occupational health advisor?
There is no one set time frame on this.  It depends on the circumstances and the reasons for obtaining the medical evidence.

Would I be within employer’s rights to ask an employee to give me an update on progress from their GP after four weeks?
You would be within your rights but would need to obtain consent from the employee before approaching the employee’s GP.  If this was given, you could certainly ask for an update.

John Brandon can be contacted at  [email protected]. For further information, please visit www.speechlys.com.

 

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Esther Smith, partner, Thomas Eggar
 

As you say, this is unfortunately a classic situation! Given that the employee has been signed off for two months already, and I anticipate that (as is often the case in such situations) the medical opinion is that the disciplinary issues are contributing towards the stress, I would be minded to seek the GP’s view on whether the employee is fit to attend a disciplinary hearing even whilst they are signed off as unfit for work. If you make this suggestion on the basis that you are concerned that the on going uncertainty regarding the unresolved issue means that they are not going to be able to improve their health, this action is perfectly reasonable. 

If the medical advice is that the employee is fit, you can then conduct the hearing in the usual manner. However if the advice is that they are not in a position to proceed then you will I am afraid be unable to progress this and will have to deal with it on the employee’s return. If this is the outcome (as I anticipate it may well be!) it is worth dropping the employee a line to confirm that you will pick this up on their return to work, so that they do not think that things will be overlooked or forgotten about.

In relation to the second part of your enquiry, you are entitled to refer an employee to occupational health for a second opinion at any time you deem reasonable. You do not have to wait until they have been off for a certain period. Two months would in my view certainly be reasonable.

I am also interested to note that this employee appears to currently have less than a year’s service and therefore does not have protection, in general terms, against unfair dismissal. You could therefore terminate their employment, subject to when they actually started, and so long as you can demonstrate that the reason for the dismissal was linked to their conduct / capability rather than their absence or illness, you should be able to avoid or at least defend any claim that comes through. However if you are going to take this route, do take specific advice!
 

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar

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