Human Resource FAQs
An employee is off work sick for reason of depression and has a doctor’s certificate signing them off for 2 weeks, then submits another certificate signing them off for a further 2 weeks. The Company has been reliably informed that the individual has been taking long weekend trips abroad and going on ‘outings’ during the absence from work. The company is affected by the individual being out of the office. Prior to going off on sick leave they had not been performing well. As a result of these issues can I dismiss the employee?
Unfortunately the nature of the employee’s illness leaves you in a difficult situation. This type of illness could be classed as a disability therefore they will be protected under the Disability Discrimination Act 1995. This protects the employee from unfavourable treatment on the grounds of, or for a reason related to, their disability. You may uncover that the trips and outings form some part of the rehabilitation process which their doctor may have recommended.
There is also a duty to make reasonable adjustments to work provisions in respect of ‘disabled’ employees. As with short-term absence, it’s still possible to dismiss an employee on the grounds of long-term sickness absence without this constituting either an unfair dismissal or disability discrimination, but the level of absence must be sufficient to justify dismissal and you must follow fair procedures, including obtaining medical evidence to support your decision and consulting with the employee both on the adjustments that could be made (if any) to enable the employee to return to work in some capacity and on the proposal to dismiss them. The statutory dismissal and disciplinary procedure (DDP) must also form a part of the procedure followed. Try to assist the employee in coming back to work and keep up regular, non-pressured communication with them. This should hopefully go some way to resolving the issue and getting them back in to work as soon as possible so that you can then address the performance issue, as you may find the poor performance was a direct link to the depression.
What if an employee fails to report for work?
If an employee doesn’t turn up to work when they’re supposed to, claiming upon their return that they were “too sick” to phone. You may be considering what they should be paid. Basically, where an employee fails to comply with the company absence reporting procedures, they are not entitled to be paid, as their absence is “unauthorised”. However, if the company does not have their own reporting procedures, the requirement would be to then adhere to the Statutory Sick Pay (SSP) rules. These rules state that if an employee is unfit for work, they must tell you within seven calendar days. The downside for employers is it effectively allows an employee to be away for up to a week without getting in touch. However, they would still be entitled to SSP. Also, under these rules you cannot insist that an employee informs you of their sickness absence by a specified time. To avoid this problem consider implementing a company process and procedure, making it clear that contact must be made on the first day of sickness absence.
What is the maximum number of days a female employee is allowed to work during her maternity leave without it affecting her maternity pay?
The employee is entitled to ‘keeping in touch’ (KIT) days whereby as the employer you can agree with the employee can work for up to ten days during maternity leave without bringing the maternity leave period to an end and without loss of maternity pay. There is also no maximum or minimum amount of hours the employee has to work; they may consist of a full normal day’s work or simply for a couple of hours or to attend a training day. These days also entitle you to make reasonable contact with the employee while she is absent from work on maternity leave.
What to do if employees selected for redundancy do not have employment contracts and all work on a needs basis with no fixed hours, how would their statutory redundancy pay be calculated?
Due to the absence of a formally written contract, statutory guidelines are required to be adhered to. Because of the inconsistency of the hours worked by each of the employees, in order to work out their statutory redundancy you would be required to take an average of their last 12 weeks of earnings to determine the weekly amount they should receive. Not forgetting that the statutory cap for this is £380 per week, revised annually.