New employee unable to return to office

[monotonousmum]

Someone on my team started working for us in December - a few days before we were told to work from home again. Employed through and agent, not direct - if that makes a difference.

Happily (it seemed) was in the office for those few days. We were only doing one day a week each in the office at that point.
I wasn't happy about the return home, as it makes training very difficult and she's not had an easy start because of that. I've kept her on easy tasks for this reason, until we return and can do proper training. She seems OK so far, just desperately in need of more training.

Next week we are due back in the office - this was discussed last week (2 weeks notice) and I've said I'd like her in the office 3-4 days a week to start, to attend training. All agreed, no issues.
This would then drop down to 2 days a week in line with the rest of the team, once fully trained and capable of doing any part of the job from home.

She's now gone to my collegue to say she can't return more than one day a week, if at all, and has got a doctors note to confirm this.

I'm not really interested in whether or not I should believe her, she has a doctors note and I'm not going to accuse anyone of lying. Not mentioning it to me when discussed has pissed me off, and in December there didn't seem to be an issue attending the office every day (ongoing medical issue - not new). But we are where we are.

We were clear in the interview that currently the team were doing one day a week in the office but this was due to increase, and they must be able to work from the office full time if that's what the business decides.

My AIBU:
Would it be unreasonable/unprofessional/illegal to say, 'if your medical issue prevents you from attending your place of work then you're off sick until it's resolved'?

I know there is some work she can do from home, but it's not sustainable to keep doing these easy tasks indefinitely - it's not what she's employed for.

There may be some doubt over what the agent told her regarding working from home - which shouldn't really be my problem if the agent is lying to get staff, but the interview with us was definitely clear.

@JoanThursday

I have a similar issue. We recruited a new team member on the basis that the role was in the office due to the nature of who we support.

Between accepting the role and starting, they moved out of town now necessitating a 3 hour round commute. Covid meant we could wfh but this now being lifted and we need the team to work most days in the office to give the best service.

Watching with interest!

That one's much easier - living on the other side of town is definitely not a protected characteristic. Say you need them back in and wait for them to quit.

Is this her?

http://www.mumsnet.com/Talk/amiibeingunreasonable/4460891-To-resign-because-my-job-suddenly-requires-me-in-3-days-a-week

@UnexpectedItemInShaggingArea

Is this her?

[[http://www.mumsnet.com/Talk/am]]iibeingunreasonable/4460891-To-resign-because-my-job-suddenly-requires-me-in-3-days-a-week

I did read that and wonder - but it doesn't sound like it. Some details are similar.

No mention of doctors note there though is there?

You should really take legal advice - or at least speak to ACAS on this one. If she has protected characteristics her employment rights have already kicked in. You can dismiss but should do so very carefully following advice.

Its great to rant on mumsnet but get proper advice on this one.

So she’s a permanent employee of a company in your group, not a contractor or temp? How long is her probation period? Will this signed-off month end near or after the end of that period?

It doesn’t sound like she has dealt with this in a very open way, so I’d be inclined to err on the side of caution and view exit routes, with legal guidance.

The rules around disability and reasonable adjustments are pretty clear. If she required reasonable adjustments she needed to declare that at the point of recruitment. If she didn’t then she’s not entitled to make those claims.

I would get rid of her while she’s still on probation otherwise you’re going to end up with someone who’s forever off sick and who you find it hard to get rid of.

DP has a colleague who is always off sick, and from some of the things she says she’s blatantly lying but gets away with it on the basis she does have some medical conditions. And just as she ran out of leave she suddenly and miraculously caught COVID, even though no-one saw the test.

It’s got to the point where her constant absence and inability to do her job is affecting the emotional wellbeing of the team, but because she’s permanent it’s almost impossible to get rid of her.

Only being able to work “one day a week” sounds like a load of shite to me, and I’d be following up with your own medical advisers if you’re not minded to get rid of her.

Don't just ask the agency to replace her without getting proper HR/legal advice.

"I put in a fit note for something related to , a few days later they told me I was no longer required but asked the agency for someone else to do the same role" has got tribunal stamped all over it.

@MeridianB

So she’s a permanent employee of a company in your group, not a contractor or temp? How long is her probation period? Will this signed-off month end near or after the end of that period?

It doesn’t sound like she has dealt with this in a very open way, so I’d be inclined to err on the side of caution and view exit routes, with legal guidance.

No, the 'employer' is not part of our group.

They're essentially just acting as an agency, from our point of view, albeit one that specialises in just one role (there's about 30 of these roles in my org)

I would let her go too.

Firstly she's not honest with you and secondly she took the job knowing she couldn't fulfil what was expected.

You should really take legal advice - or at least speak to ACAS on this one. If she has protected characteristics her employment rights have already kicked in. You can dismiss but should do so very carefully following advice. only if she declared them at the point she signed her contract.

If she didn’t declare any disability at that point she doesn’t have those rights.

The doctors note is poppycock and we all know it. She accepted the job and actually went into the office initially, is now working from home and obviously just doesn’t want to go back into the office. But how is she going to do her training? 🤷🏻‍♀️ She is very lucky to be offered two days WFH anyway.

As far as I’m aware, people didn’t expect to be able to WFH before the pandemic just because they had a disability so what’s changed?

Unless she has suddenly developed a medical condition that she hasn’t previously mentioned I’d just get rid of her. She’s making a mockery of people with genuine disabilities. I’d report the GP as well while you’re at it. This is not what they’re for.

Do you have a HR department you can ask for advice?

The rules around disability and reasonable adjustments are pretty clear. If she required reasonable adjustments she needed to declare that at the point of recruitment. If she didn’t then she’s not entitled to make those claims.

She could also argue that no adjustments were required while working from home and that she has now made the employer aware as soon as it has become apparent.

I'm not sure if it is a disability! Certainly not a physical one. Although I imagine it would be quite debilitating, it's in the mental health area.

I'm saying, I believe her - no reason not to. And as the doctors note only covers a month can I just say 'OK, see you in a month'.

only if she declared them at the point she signed her contract

If she didn’t declare any disability at that point she doesn’t have those rights

I am sorry but it's absolutely not as clear cut as that. She can declare a disability at any time. She is under no obligation to disclose anything at interview or at any time unless requiring a reasonable adjustment - which may be the case here.

As far as I’m aware, people didn’t expect to be able to WFH before the pandemic just because they had a disability so what’s changed?

A lot of people who would have previously been squeezed out of the workplace due to disability have benefited from WFH becoming almost universal and the option should be allowed to continue.

Mental health is protected so the need for careful consideration is needed.

You can act, you just need to be careful about how you do it.

@AgentProvocateur

I would let her go now when she’s still in probation. She can’t fulfil her contract.

I’d do this

@Hospedia

Don't just ask the agency to replace her without getting proper HR/legal advice.

"I put in a fit note for something related to , a few days later they told me I was no longer required but asked the agency for someone else to do the same role" has got tribunal stamped all over it.

Can she do the job employed to do? Is no, and she's agency staff, you can give her a different job or return her back to the agency as unsuitable. It's nothing to do with her alleged medical condition, which might not fall under the definition of a disability. She can't do the job because she is unable to be trained- I assume she gas to being the office to be trained. Cos if you could do the training where she can do it, that wouldn't be unreasonable if she has a disability that is protected by law. I still go back to my first comment though. I dislike dishonesty it's a huge red flag. I would find a way to get rid of her....

I'm saying, I believe her - no reason not to. And as the doctors note only covers a month can I just say 'OK, see you in a month'.

Of course you can say this.

You could allow her to continue at home with her current duties, arrange some phone calls to keep in touch, and state that you can review matters towards the end of her sick note.

You could use this month to look into whether the relevant training can be delivered remotely (e.g., via Teams), whether she could come into the office temporarily to do training and then continue to WFH once completed, or whether you need to let her go (in which case you have a month to make sure you're acting legally).

Nope not unreasonable at all. You'll obviously need to check what it says in her contract but assuming it's set out, give the whole problem to HR and manage her out if appropriate.

It isnt a new 'policy'. Most folks were working in a base prior to lockdown. There was a change by the government instructing people to WFH where possible. You were naive to think this would be indefinite given lockdown has lifted and most are returning to the work place albeit staggered.

The amount of folks on MN who moved home on the basis of a permanent WFH arrangement is staggering and then pissed off they are expected to go back to the office. The number of people working with young babies in the background as they seem to think they can do both without organising childcare is a shock too. Sounds like this person is one of those

I think you can self certify for 4 weeks atm so do check it is actually a fitnote.

sorry that was for a different post

Can she do the job employed to do? Is no, and she's agency staff, you can give her a different job or return her back to the agency as unsuitable.

She has the same protection from discrimination as any other employee did and OP would need check the legalities of this with HR before acting. If OP returned her as unsuitable and she had reason to believe it was due to her condition then she would potentially have a case for discrimination, a situation I'm sure OP would not want which is why the advocate exists to tread carefully and check the right processes are followed.

They're not fully trained, and are already being obstructive. And anyone producing sick notes this soon into a job? Massive red flag.

They're work shy and likely to be a massive PITA ongoing.

I wouldn't tolerate it in my business.