When a poor performer goes off sick

A client of ours runs a care home. They were concerned about the performance of the home manager and had issued her with a warning to improve things. The manager then went off sick (genuinely). Whilst signed off sick she had a meeting with our clients and expressed a desire to return to work on a phased basis.

Due to the nature of her illness and the continuing health problems she and her support worker said she had, our client had concerns about her ability to do the work, and an overriding concern about the welfare of the residents. However, as she was still signed off as unfit to work it was a hypothetical discussion.

We advised our client to seek permission from the home manager to write to her GP and Consultant for medical reports relating to the prognosis for her and what, if any, assistance she might need as and when she was deemed fit to return. We also asked whether she would be considered disabled under the Equality Act 2010. Her Consultant failed to comply with the request and her GP replied based on an administrative role only so a follow up letter was sent to ask for clarification. No response was received.

When she had been off sick for a few months she raised a grievance about several issues but mainly saying that it was discriminatory not to allow her back to work and make adjustments for her disability. She also put in a Tribunal claim on a similar basis. That is a scary situation but we advised a calm, measured approach as we believed the employee was trying to scare our clients into paying her off.

Contact with her had become very difficult and she refused to attend any meetings to try to resolve matters. Having been given a date for a medical capability hearing she said she was returning and did supply a letter from her GP saying she could return but she was still covered by a sick note. Her sick note expired and no further note was submitted and she did not return. We advised and drafted a letter setting out what would happen if she remained absent with no sick note and also reminded her that there were potentially serious outstanding disciplinary issues to be addressed when she did return, which now included some questions about what had been put on social media about the care home.

As soon as she received that letter her legal representative contacted ACAS asking them to contact us to negotiate an exit package. We managed to broker a deal which cost our client half what the employee would have got had they dismissed her or had she resigned and also saved them the legal costs of either a Tribunal or a settlement agreement by asking ACAS to broker the agreement.

Sometimes it’s better to play the long game-it takes nerve and you need to be sure of your facts but we knew this was a case of who blinked first and gauged it right.

There were a number of lessons from this

  1. Don’t get side-tracked by issues that don’t exist, in this case the attempt by the employee to raise the issue of disability.
  2. Sometimes you only find out what’s going on when the manager concerned is off site, although the owners knew things were not as they should be, it was only when the manager was not at work that the staff started to feel able to talk about the problems the manager was causing.
  3. Don’t get scared by advocates or solicitors who threaten you. In this case the issue was simple. Was she fit for work or not.
  4. Keep notes of all meetings and stay in touch with the employee.
  5. Keep your eye on what you want to achieve. In this case it was pretty clear that both employer and employee wanted to go their separate ways. Our client felt that their employee was exaggerating her condition (which could have been for a number of reasons), the problem with this approach from the employee’s point of view is that there is no obligation on an employer to keep someone in a job that they are unfit to perform.

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