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.

Catch up with the manager she spoke to about wfh. See if arranging a meeting with all 3 of you is feasible, to clarify how the reporting structure works. As it stands it reads like she’s not liked the conversation with you so gone to someone else to see how much she can get away with - ie playing you off against each other to get her own way. Having a meeting with the three of you makes it clear that you & other manager are on the same page.

And use the meeting go over the job - not just the simple bits she’s doing. Emphasise then need for her to do the full role for progression. Then ask her for the solution - what adjustments she will need to enable her to manage face-to-face training so she can get to grips with the role. EG 4 shorter days in the office with one longer wfh day to make up the time?

I am permanently WFH as a reasonable adjustment for disability.

It can be done, unless of course the job is a driver or something.

The duty is on the employer to make adjustments and if the job was previously done WFH, even if because of the pandemic, you are unlikely to win any discrimination claim if you claim its not possible to do it as a reasonable adjustment.

As for the sick note, if you aren't her employer or direct manager, it could be a GDPR breach if it is shared with someone else without her knowledge and consent.

Your OP sounds like another one of those "they should have told us" posts. Nope the law says we don't have to. When we do and if we do is entirely up to us. So no one is in the wrong here.

But its the employer's responsibility to make adjustments regardless and not doing so, and just letting her go, is a big risk.

you sound lovely

You need to speak to HR/in-house legal team and/or get some proper legal advice. Lots of solicitors offer employer assistance like this, even as a one off and it's important enough to obtain robust employment advice and pay for it so you can rely on it.

How can you manage to be in the office one day a week but not two or three for medical reasons?

Either you can be in the office or you can't. Surely?!

that's what occupational health is for.

You need her in to do training. You've reached the limits if what you can employ her for home working. So if she has a sick note that says she can't come into the office for a month then she's off sick for a month. Will that be SSP?

Make it clear she is needed back in the office for training and say you will be extending her probation period because she can't be in.

I'd just get rid now.

@monotonousmum

She's not employed directly though us, so I haven't seen her contract. It's very unlikely to mention home working. It's unlikely to even mention a specific office tbh, as we have many and need to be able to work at different sites - though we mainly stick to one.

I'm confused

When I've used agencies to hire, I see a basic copy of the contract - otherwise how would I know the employment conditions?!

You need all the information, then make a decision, but I would let her go. Sounds like a whole bunch of time wasting going on.

You probably need the agency to issue a tighter contract to avoid similar in future.

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.

If the employee suffers from a long term health condition which impacts their day to day life then it's covered by the disability characteristic of the EA2010. The fact that it's not a physical illness isn't relevant. You are responsible for treating her equally, even if she's an agency worker and even though she's not worked there long- the EA applies immediately.

If at all possible I'd be trying to get HR advice on the specifics of the situation before firing her. Since you said she's good at her job (and getting people who are is hard) I'd be trying to accomodate reasonable adjustments to keep her in post. This is also your legal obligation.

If she's genuinely unable to complete the training and to do the job without being in the office then you will have little option but to dismiss her on ill health grounds but you need to go through the normal processes and try accomodating the difficulties.

I would also add that how an employee is treated makes a huge difference to MH conditions, so being kind and supportive may well lead to her being able to manage what you need better.

A reasonable adjustment would be to allow her longer to complete the training needed - not an indefinite period. I think OP said it was mental health related, so sensible to think that she’ll be perfectly able for the job if she’s given a bit more time for the training, and that she’s got the sense not to take on a role that is going to make her health worse. OP also says she seems likely to be a great addition to the team.

You're getting some really poor advice on here. You need to work with HR, an employment lawyer or Occ Health to establish the facts, the contractual basis and to ensure you follow a fair and legally compliant process.

Please don't act without consulting someone who you know to actually be qualified to advise.

Just looking back through this thread and there is some awful advice from people who clearly have no relevant experience or experties but feel certain they are right anyway.

You can certainly dismiss someone who can't do a job they are employed to do but you can't sack someone for having a disability because it seems the easiest option (I mean, you can, but it's an expensive error).

@heelforheelandtoefortoe

I am permanently WFH as a reasonable adjustment for disability.

It can be done, unless of course the job is a driver or something.

The duty is on the employer to make adjustments and if the job was previously done WFH, even if because of the pandemic, you are unlikely to win any discrimination claim if you claim its not possible to do it as a reasonable adjustment.

As for the sick note, if you aren't her employer or direct manager, it could be a GDPR breach if it is shared with someone else without her knowledge and consent.

Your OP sounds like another one of those "they should have told us" posts. Nope the law says we don't have to. When we do and if we do is entirely up to us. So no one is in the wrong here.

But its the employer's responsibility to make adjustments regardless and not doing so, and just letting her go, is a big risk.

you sound lovely

I actually NEVER said about letting her go.

I said about being off sick until she's able to attend training, for her full role.

Shouldn't she have mentioned her disability prevented her doing the job before she accepted the job?

Only an absolute moron would bring up reasonable adjustments for a disability at interview if it could at all be avoided. It's very hard to get jobs when disabled for reasons illustrated by some of the posts on here.

She’s produced a sick note for a month this early into a new job?? There’s no way she’s going to magically be ok with being in the office in four weeks time.
Tell the agency it’s not tenable.

She's been with you under 2 years so you don't need a reason.

I'd suggest getting this moved to the Employment board rather than AIBU. You'll get feedback from some employment lawyers / HR professionals there rather than just people spouting off who haven't got a clue.

I bet this happens everywhere now, new guy joined our team barely been in the office for training. His excuse certainly will keep him wfh for a while (looking after family member). Still doing basic stuff after weeks. We are empathetic team, of course we will be fine with it.

I'd be very fucking careful here OP, a lot of posts here are nonsense and you need to establish the full facts before deciding on a course of action.

If she has a disability and you get rid of her without considering any reasonable adjustments, you or your workplace could be in the shit.

There is a lot of advice on here that I have no intention of taking.
I not worried about employing someone with a disability, whether physical or mental health. I'm concerned about whether or not someone can do the job.

If an existing, fully trained member of my team had come to me with this issue then they'd be working from home and I'd be offering any support I could. But I can't see how I can train her effectively outside of the office - we actually have tried it over the last couple of years and it is not effective at all - those staff are having issues and I'm having to retrain them IN the office to try to rectify.

Arguably, I should have just remained in the office in December and trained her then - when she didn't seem to have an issue being there. But I followed guidance (government and company) and worked from home, as I 'could', knowing she could do the part of the job she'd been trained on then we'd sort the rest later.

She has told you she can't do the job due to a health reason - you were prepared to have her do a small part of the job pending training but that situation can't continue indefinitely especially now she could come into the office for training but her health is stopping it.

So you need to decide - can training be delivered remotely?

If not given she can't come into the office, and isn't doing the job, has she effectively declared herself off sick? You would need HR and employment law advice on this.

If the situation then drags on for more than one month you are in the situation of Occ Health referrals and reasonable adjustments.

Op this doesn’t sound quite right, doctors don’t do sick notes any more, it’s fit to work notes and all they say is fit to work yes or no. They do not say if fit to work in different environments like home or office.

And if she’s a contractor jist tell the agency she’s not suitable.

Reasonable adjustments can include changes to duties and policy. It's not just about equipment. There's some really misinformed people on this thread.

@Ricksteinsfishwife

Op this doesn’t sound quite right, doctors don’t do sick notes any more, it’s fit to work notes and all they say is fit to work yes or no. They do not say if fit to work in different environments like home or office.

And if she’s a contractor jist tell the agency she’s not suitable.

This is absolutely not true. The whole point of Fit Notes was to give doctors the opportunity to say staff are fit for this or that element of their job but not for another.

Besides which this doctor has said not fit at all, it's the staff member who's saying one day.

If an existing, fully trained member of my team had come to me with this issue then they'd be working from home and I'd be offering any support I could. But I can't see how I can train her effectively outside of the office - we actually have tried it over the last couple of years and it is not effective at all - those staff are having issues and I'm having to retrain them IN the office to try to rectify.

Talk to her. Ask whether she want to be off sick with the doctor's note or is looking for reasonable adjustments. Talk to her about what training is crucial and how it might be done. Find out what support she needs.

If she's had an MH flare up very recently then there is no reason to think it will be permanent.

Make sure you loop in HR. Even if they are crap it covers your backside. An OH referral is likely to be essential if this is long term.