Can’t sack him he’s stressed

absence-management-training-material

In this very first “HR Blast” from Jaluch, designed to take you no more than a couple of minutes to skim read, we take a look at an issue that is all too common for many of our clients – the employee who goes off sick with stress when faced with disciplinary action.

The HR headache

  • Your very own Ronnie Biggs appears to have been caught with his hand in the proverbial till… fiddling his expenses…and we’re not talking just a few pounds.
  • You spend three sleepless nights worrying about how widespread this is, how you’re going to manage it, what you’re going to say to other staff…
  • Then you invite Ronnie to a disciplinary investigation, warning him that, if fraud is established, it could result in his dismissal.
  • The very next day poor old Ronnie goes off sick and five days later a fit note arrives stating he is really stressed and can’t possibly attend work or a disciplinary at this time.

Ever come up against anything like this? Well we have. Too often to count! What’s crucial though is that neither his stress nor absence from work puts you off managing this situation in a timely and appropriate way. You do not have to step back as he is off sick and you do not have to go running for the hills just because he has used the ‘S’ word. But do prepare yourself for a long process to investigate and discipline him if that is what is ultimately needed.

Steps to get rid of your HR headache…..  

1. If you think you might have to sack him at some point, get advice. Do not in any circumstances rely on using your own common sense to get you through this. Common sense does not always apply in our wonderful law so get some good commercial legal advice.

2. Try to manage the situation before you contact the police, if you want to report this fraud. This way you have free rein to manage it as an HR issue without having to wait on a lengthy police investigation whilst your employee is suspended or off sick on full pay.

3. Get medical advice and support every 4-6 weeks throughout this process…..fit notes, independent occupational health consultant report etc.

4. Document everything plus, no unscheduled visits to his house to check up on him.  No ‘informal’ phone calls when you try to talk him round through force of your own personality! If you must phone him or visit him take someone with you as a witness.

5. Don’t assume that just because he is off sick you cannot proceed with a disciplinary. Weigh up the importance of progressing this speedily. If you decide to proceed whilst he’s off sick, make sure you do so in a way that will not be perceived as bullying, aggressive or adding unnecessarily to his stress. Professional, formal, plain English letters/documents is what you should aim for. Avoid excessive legalise in letters as that can just get employees’ backs up and make sure you don’t ever imply the outcome of an investigation is a done deal.

6. If still off sick after 4 weeks, now is probably the time to advise him you need to proceed with the disciplinary. If he can’t attend then advise him of his options: to provide written submissions  to have a colleague or trade union rep attend in his place to request a meeting nearer his home or at a time/place that minimises his stress or perhaps even to request a family member attend for support.

7. Set a timescale for doing the investigation and holding the hearing. If at any point he says he will attend or will submit written submissions etc. in order to avoid any last minute postponements, be clear in writing to him that if he fails to attend or submit his documents by the due date that the meeting will go ahead in his absence.

8. When pushing ahead with a disciplinary be clear in your own mind why you are pushing ahead, rather than waiting a month or two for him to return to work. Consider: whether any delay is just adding to his stress levels even though he himself is causing the delay whether you believe he is likely to be back at work in the near future, the extent of the misconduct and how urgent it is to be investigated and resolved the impact on work and/or staff of this delay and the importance of addressing all potential disciplinary matters in a timely and appropriate way assessing any business or commercial impact.

HR potholes to avoid

  • Don’t appoint a manager to oversee this who is incapable of showing any empathy – that could inflame an already difficult situation.
  • Don’t appoint a manager who is a wildcard and who may just pay poor Ronnie a home visit on the spur of the moment and who certainly won’t keep a great paper trail.
  • Don’t appoint a manager who fears confrontation and who will always back off when faced with any employee using the ‘stress’ card.
  • Don’t open yourself up to a constructive unfair dismissal claim due to appearing to be bullying in the way you deal with your stressed employee. (Remember that this will be down to their perception, not your perception).
  • Don’t assume they are lying about being stressed in order to avoid the disciplinary after all you would probably be stressed too if you thought you were about to be publicly humiliated and sacked!
  • Don’t think that the rest of your staff will know that you are handling this professionally and appropriately as he may well have given them a different impression.
  • Do communicate appropriately with other staff if this is necessary to ensure good employee relations and maintain staff morale.

And finally…. mess this up at your peril!

Unfair (constructive) dismissal claim average award last year was £9,133 with the maximum award being £173,408. Disability discrimination claim average award last year was £22,183 and the maximum award last year was £390,871.

Associate of Ronnie giving you grief and stress? To ensure your sanity and restore order in your workplace call the Jaluch advice line 01425 479888.

The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individuals matters.

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