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Tony Bertin - Employment Relations Solicitors
Online advisor - 4 posts
Paul
Thanks for your query.
Sorry for the delay in replying.
Sickness absence probably gives HR managers more headaches than anything else because there are no absolute rules.
A contract can never be formally terminated fairly all the time the contractual sick leave is due. If the paid leave comes to an end but there is an insurance benefit like critical illness cover; be careful. A lot of policies will only pay employees and not former employees. This can give rise to a claim if an insurance funded benefit is cancelled following termination.
A failure to return to work can amount to a frustration of a contract without the need to embark on formal termination procedures but I think it wiser to rely on normal steps obviously using the new statutory procedures. However if you are bearing no cost using the correct procedure alone will not be enough. The decision will need to be reasonable. If you are able to reallocate or cover the work your decision might not be seen as such and also the level of responsibility is also relevant. If the post this person fulfils is critical and the business is suffering, this would help you.
However almost certainly this individual is disabled. He has had 39 weeks off and will be at least 13 weeks before an operation. Therefore his condition will have at least 12 months time scale. You will have to consider reasonable adjustments including the amount of sick leave. Maybe he could come back to work in a different capacity. You should seek more advice including medical.
Regards,
Tony Bertin
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Tony Bertin - Employment Relations Solicitors
Online advisor - 4 posts
John
Thanks for your query.
You do not say whether the drivers are employed through an agency and so for the purposes of this answer I am assuming not. If they are then your position is a little easier.
There are only employees; whether they were casual or not makes little difference. They are entitled to full employment protection in accordance with length of service of which the most important right is the right not to be unfairly dismissed, which comes in after a year.
If he is an employee under a series of individual separate contracts, which apply only while he is actually working, it is unlikely that he will be able to build up the period of continuous employment required to be eligible for protection from unfair dismissal. Those with more than 12 months are almost certainly protected.
However, Northern Ireland is a special case because of the way the law is written. Prevention of religious discrimination is a particular burden for employers and has to be implemented at EVERY stage including the preliminaries to recruitment e.g. advertising.
If the relief drivers do have more then 12 months service then I see little alternative but to formalise their position. However I think perhaps a line should be drawn there and those with less than 12 months should have to obtain permanent jobs in open competition. There is an element of potential discrimination about this but I cannot see that a claim for unfair dismissal could be resisted simply by saying the dismissal was to avoid unspecified, unpresented claims for discrimination. It might just amount to ?some other substantial reason? but I have to say I would not like to be the advocate running that defence!
If you need further help please look at the employment law guide on our website www.employment-relations.co.uk or call 01303 840001. You may also e-mail me on tonybertin@employment-relations.co.uk.
We do produce a free monthly HR update that goes out by e-mail. If you would like to receive this you can register for this on our website.
Regards,
Tony Bertin
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Tony Bertin - Employment Relations Solicitors
Online advisor - 4 posts
BLOSSOM
Thanks for your query.
If the hospital appointment is for the employee then it should normally be taken as sickness. Your standard policies should be applied. However there are some complications for SSP. Although you normally have to have 3 waiting days for SSP, absences that are linked within 56 days are consolidated. It follows that these appointments are linked for SSP purposes.
If you have chosen to make special paid arrangements on compassionate grounds that are more generous than your standard policy you should document this well as other staff might claim a precedent.
If the appointment is for family it might qualify for leave as time of for domestic emergencies but this would not be eligible to be paid.
If you need further help please look at the employment law guide on our website www.employment-relations.co.uk or call 01303 840001. You may also e-mail me on tonybertin@employment-relations.co.uk.
We do produce a free monthly HR update that goes out by e-mail. If you would like to receive this you can register for this on our website.
Regards,
Tony Bertin
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Tony Bertin - Employment Relations Solicitors
Online advisor - 4 posts
Jan,
Thanks for your query.
If staff are ill while on holiday that is their loss. However if they are sick at a point when they are due to take holiday and cancel, then clearly sick pay rules apply. The same is true for someone not returning from holiday. You may want to look at your rules on sickness to require a certificate for a delayed return from holiday regardless of the length of absence as a way of discouraging absenteeism.
If you need further help please look at the employment law guide on our website http://www.employment-relations.co.uk/EmplawSet.html or call 01303 840001. or e-mail tonybertin@employment-relations.co.uk
Regards,
Tony Bertin
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