Can New Starter be sacked - off sick after one week?

[NattyKhakiSnail]

Hoping For advice for my husband who runs a small business. He has just taken on a new senior marketing person, via a recruitment agency, on a decent salary. This person showed up for one week, self certified sick with “sickness and diarrhoea / suspected norovirus” the next week and has now sent the agency a doctors note for “stress” covering the next 15 days. He doesn’t want to discuss Any of this with my husband, as it makes his anxiety worse! He did not say anything about disability or stress prior to going off sick.

My husband is worried this person is taking the piss, and getting well-paid for it. He doesn’t want him back. Can he sack him while he’s signed off sick please? Sounds harsh, but he’s trying to keep his business afloat.

As far as I know, yes. I think you can just give one week's notice of dismissal. Hopefully someone else will know for definite.

Does this person work for the agency or your husband ?

I thought agency staff could be dropped at a moments notice tbh.

I ended someone's contract whilst on probation. I had to give them one weeks notice and that was it. 1 week was the contractual notice during probation.
They weren't sick but weren't turning up to worksites so not doing their job. Whilst I could have failed them on performance management grounds, it was quicker and easier to just give them notice and accept they were going to do nothing for that week.
Presumably this person is on probation so I would think DH could do the same thing.

Yes, virtually no legal protections in first 2 years of employment. The only exceptions are if a dismissal is ‘automatically unfair’ and/or relating to a protected characteristic.

Does he have a probation period or notice period in his contract?
I thought that under 2 years you could just give notice without much faff??

As he sent a doctors note to the agency is he employed by them or your husband’s company?

If employed by your husband, not the agency, what does the employment contract state about sick pay?

If it's via an agency get them on it.

I'm not clear if the person is employed directly and was recruited by the agency for a fee or if they are employed by the agency and assigned to your husband's company.

Your husband does need to be wary if their anxiety is severe enough to be considered a disability and therefore covered under the Equality Act.

But I go back to my original thought - speak to the agency either way.

And definitely don't pay more than SSP. I would hope that any contractual sick pay is discretionary or at least doesn't come into effect until after a probationary period.

If he’s working through an agency (which it sounds like if he’s sending them his doc certs), your husband will not be sacking him, he’ll just be telling the agency he wants someone else.

He's not going to be well paid is he??

If your husband wants to be an employer he needs to look up what his legal responsibilities actually are.
This isn't a hobby - he's messing with people's lives.
He should be reading the gov.uk site and talking to ACAS, not asking his wife to post on mumsnet ffs

Get on to the agency and get rid. There should be a notice period in the contract - I'm an agency contractor and the benefit on both sides is that it's only 2 weeks notice.

He won't be popular with his agency either, they like people who make them money! Good contractors have agencies fighting over them as an agent can sit back and live off the commission rolling in.

I bet this isn’t the first time he’s done this.

This is why you need to share what is happening with your employer. If you have a genuine reason for your stress - ie. you partner just left you and your house fell down - then they can make an evaluation of whether you will be able to do the job in the future. If it is just that any demands on you feel too much or the job itself is too stressful for you, then you need to not be there as soon as possible.

Employee is employed by DH’s company, just put forward by recruitment agency, for which they charge a fee. DH has spoken to agency, who have not come across this before and so far have just said “it doesn’t look good”. DH is a very caring a considerate employer and most of his employees have been there many years. DH wants to do the right thing, but is concerned this could go on for weeks, and then this person will resign anyway.

I'd suggest your husband invests in some legal advice.
Being off with stress - the employee could argue the stress is a protected characteristic - so covered for dismissal from the start. They may have done this before to get payouts.
I'm not saying it is covered but this could be how it goes so I'd get some quick legal advice on how to ensure there is no come back on this.

But at the moment not enough is known to say this is due to a disability. Everyone has stress - it does not mean MH problems.

Exactly - not enough is known and there's a risk

I assume the agency wants their fee and the worker needs to remain employed for a certain time for them to retain this? So they won't say much.

I once got sacked after 6 weeks for "making a typo". They were a small company who were hiring and firing people every week on a whim. There are no employment protections for two years unless it is discrimination for a protected characteristic.

If there are no exceptional circumstances like a bereavement, which your DH cannot know if you have not been told, then to be honest it looks poor and I would sack ASAP before he has time to announce his stress is actually a disability.

How was his performance before he went off sick?

Absolutely you can dismiss. Notice pay will depend on contract. Agency should do you a free replacement

What does your policy say about sick pay? At my company there is no sick pay whilst on probation.

We don't get sick pay for first year so I'm sure he doesn't expect to be paid. Is your husband a member of the FSB? They give free legal and HR advice as part of membership as do chamber of commerce

- the employee could argue the stress is a protected characteristic

Stress in and of itself is not a protected characteristic. Disability is a protected characteristic. Presumably OP's dh requested all the relevant info from the employee re: disability and any required accommodations and/or occ health assessment, so if nothing has been mentioned then there is no protected characteristic to worry about.

I hope only SSP is being paid? Presumably the contract laid all this out, op?

There are companies who will provide HR advice on an affordable rate for small businesses who don't have a HR dept. I'd start with one of those, but in general he can sack the employee immediately, just don't be silly enough to gove a reason that could be linked to a protected characteristic (and even then...)

The recruitment company will have terms and conditions - you should receive a rebate if he is sacked after a certain period. Either way if they want to work with your husband again a decent firm would negotiate with your husband.

Sick leave your husband is only required to pay 11 days. Or whatever his standard company policy is? I Would highly recommend not sacking on sick leave due to mental Illness. When they are back after a day or two working explain they are not where they should be so your are terminating the contract