Ask the expert: Long-term absence during probation

The question

We have an employee who started work with us in a management position. Her references were not great but we decided we would give her a chance. She worked for two weeks and then went off sick, is now in the eighth week of absence and has submitted a medical certificate for a further four weeks. Her medical certificates state the reason for absence as ‘investigations – awaiting results’.

I’ve asked her why she can’t return to work and she says her doctor advises against it. She admits that she does not feel unwell, just worried about the results and was well enough to go on holiday for two weeks.

Her job is office-based in a pleasant environment. She has kept us informed of the investigations but has never asked how things are going, whether there is anything she can do from home, etc.

I want to request an occupational health report but the employee has not returned the authorisation form. What can I do if she continues to elongate the process? My gut feel is to dismiss and start the recruitment process again – is this dangerous territory?

Legal advice

Matthew Whelan, solicitor, Speechly Bircham

The main risk to you in dismissing in these circumstances is discrimination, particularly from the facts you outline, disability discrimination. If the employee has a disability you risk discriminating against her if you simply dismiss her. This could, therefore, be dangerous territory.

I suggest you try again to get her consent to obtain a medical report by contacting her to ask her why she has not consented. A medical report will hopefully give you more information to enable to you assess the level of risk and decide what to do.

If she refuses, you need to consider what to do next. You should check her contract of employment for an express right for you to require her to undergo medical examination, but be careful how you go about dealing with any refusal.

It is possible to discipline someone for a failure to comply with this obligation but I would be very careful doing this given that if she suffers from a disability, this may make the situation worse and lead to liability for you. This is something which I recommend you take full advice on.

If you do decide to go down the dismissal route, you should follow a fair procedure. Depending on the reason for the dismissal, you may need to follow the ACAS Code of Practice. If you fail to do so and the Code applies, and the employee succeeds in a claim against you, compensation to the employee can be increased by up to 25 percent.

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

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Esther Smith, partner, Thomas Eggar

I can fully understand your frustration, not just with the employee’s absence but her apparent lack of concern for the business. The only risk here in dismissing would be the risk of a disability discrimination claim, given her length of service and her inability to challenge the fairness of a dismissal.

However, at present we do not have any knowledge of whether she suffers from a condition that is likely to be covered by the legislation. Therefore, there is some argument as to dismissing now, rather than later, as the longer we leave it the more chance there is that there will be some information to show that she is ‘disabled’. If she is not disabled, and there is no evidence to suggest that it would have been reasonable for you to assume she was disabled, then she cannot bring a claim.

Therefore, although there is a risk, I would dismiss sooner rather than later. I would also make reference to her failure to return the OH form as requested as being the reason for deciding to dismiss. While we do not have to give a reason for dismissal for someone with her length of service it would be helpful to give a reason not directly linked to her absence and therefore any possible disability.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit www.thomaseggar.com.

Unnecessary Risk

It would seem that you took a gamble that hasn’t paid off. How much time and money did you invest in assessing this person’s mental and physical state of health before employing her compared with how much time and money you are going to have to spend dealing with her now in addition to future recruitment costs?

Her reluctance to explain her condition is unacceptable. How can you possibly help her in this situation. I would tell her that until she shares the issue with occupational health so that you can work it through in her best interests, you’re simply not going to pay her.

John Picken http://www.shandwell.com