Posted on 9th December 2014 by Jenny Hyde in Case Confidential
Croner’s team of HR advice line experts commonly receive questions from nurseries about what to do with a member of staff who is absent due to long-term sickness. In one recent case, a Nursery Manager called the Employment Helpline asking for advice about one of their Room Leaders who was absent from work due to arthritis.
The employee became unfit to work in November 2013. As he had a good relationship with the Nursery Manager they kept in regular contact by telephone. The employee also sent in fit notes authorised by his Doctor, which said that he was unfit to work because of the pain he was suffering. However, as time passed and his entitlement to statutory sick pay ended, he stopped calling or sending fit notes. As is normally the case, the Nursery Manager became busy and did not see the point in chasing her employee for a fit note, because she presumed that the situation would not change and he would never be fit enough to return to work.
In the summer of 2014, the Nursery Manager bumped into the employee’s daughter in town and remembered that he was
still on her books. She called the Helpline to get advice because she was not sure if the Room Leader was still employed by the Nursery, given how long he had been absent for. The advice was that he was still employed because he had not resigned and the Nursery had not dismissed him. Although he was no longer getting paid during the sickness absence, he was continuing to accrue holidays and it was recommended that the Nursery Manager address the situation sooner rather than later.
Following the Helpline’s advice, the Nursery Manager rang the Room Leader to check his current situation and he confirmed that he was still unable to work because of his arthritis. The Nursery Manager then wrote to him asking if she could visit him at home for a case review meeting to discuss his current health in more detail. He agreed and when they met, he gave her a new fit note and said his condition had worsened to the point that he had limited mobility and was taking strong medication. As advised by the Helpline, the Nursery Manager asked for consent to write to his Doctor to get detailed information about his condition and whether he would be able to return to work in any capacity. The Doctor’s opinion was that the employee could not return to his role as Room Leader in the foreseeable future and due to the extent of his pain, there were no reasonable adjustments that could be made which would allow him to return in a different capacity.
Although the Doctor’s report was clear about his inability to work, he was protected from unfair dismissal and disability discrimination under employment law; therefore the Nursery Manager still had to follow a fair process to bring his employment to an end.
The Nursery Manager arranged a follow up meeting with the employee to go over the Doctor’s report and see if he agreed with it, which he did. He also felt that there were no other roles in the Nursery which he could do. The Nursery Manager went away to think about everything that the employee had said and what the Doctor had written in the Report. She felt that she had no option but to dismiss him.
She therefore invited him to another case review meeting but this time warned him that in light of the medical information from the Doctor, it could lead to him being dismissed. In the meeting, the employee again agreed with the Doctor’s report and said nothing had changed and he felt unable to return to work in the future because of his arthritis. The Nursery Manager therefore terminated his employment due to his ill health which meant that he was not capable of performing his role. This was confirmed in writing and the employee was given the right to appeal against the decision. Upon dismissal, he was entitled to be paid for all of the holidays he had accrued but not taken whilst he was off sick.
This case serves as a reminder that you should manage a staff member’s absence even when they exhaust their entitlement to statutory sick pay. It is advisable to ensure that you follow your absence reporting procedure and that employees keep providing you with fit notes. If the absence goes over four weeks, it is recommended that you meet the staff member to talk about their condition and consider obtaining their consent for a medical report so that you get detailed information about what is wrong, how likely it is going to last, and what you can do to support their return to work.
Don’t forget Dot 2 Dot members have access to Croner’s team of employment law experts through their Helpline to assist you with this subject or any other HR issue. Simply call them on 0844 561 8111. For further information, please call one of the dot2dot team on 01204 570390