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.

Firstly, the agency need to push back and say they are not his employer so cannot accept sick notes etc and he needs to raise with dh

secondly check sick pay in the contract and don’t pay a penny more than the contract

thirdly, he can’t just decide not to speak to his employer - call Ava’s to clarify but It will probably be wise to wait until the end of the sick note and discuss in a return to work meeting.

The guy had worked for one week before being signed off with stress!
Of course he’s not protected and op’s dh is not obligated to continue the employment.

In the company I work for, if you r not been there long (less than 6 months) you only get statutory sick pay.

His doctor’s note says stress, which is not in of itself a disability.

If his underlying condition (which is not stated on his sick note from what you say) then that would potentially be a disability.

He has an obligation to inform an employer of any disability, as he becomes aware of it. So that the employer can make any reasonable adjustments.

You have not explained what conversation your husband had with him presumably from what you say a sort of how can i help sort of conversation.

If has refused to engage regarding this undisclosed “anxiety”. I would suggest that your husband write him a formal letter, stating that as he is not cooperating, in order to help him then his contract will be terminated.

In what way is the dh 'messing with people's lives'?

Get rid and check contract with agency - we ensure ours are clear we don't have to pay if they go in first month. Alternatively they may need to find you a replacement without charge.

Surely this is covered in the contract between your husband and the recruitment agency? Your dh will (quite understandably) be wanting to end this person's employment and get back a large proportion of the recruitment agency fee if he has already paid it. This should all be covered in their contract if they are a decent company.

One weeks notice and a proper convo with the recruiters.

Basically see what the contract says.
if it says a fee is payable... if i was your DH if tell them they have 2 choices...

They can have their fee but he will end the business relationship
or
then we can all agree it was bad luck and they can go fish for a another candidate then he'll pay the fee and you can continue the business relationship

Orrrrr....if they push for payment and are really good mayyyybe some part payment.but I'd need to love them / theyd need to be AMAZING recruiters

Good fucking god. 15 days - presumably working days - so 3 working weeks. Totally taking the piss. BUT what were the references like? I cannot believe if this individual does this on a regular basis that his references would be good. I would be totally challenging the supposed recruitment agency. My guess? They have already tried to place him several times and failed.

Yes he can get rid of him up to 2 years for basically no good reason if he wants to. If he is unsure it's always worth having access to an external Hr company as a small business. You can usually get cover for about £150 per month and they will provide advice as needed.

Oh for goodness sake. It is not up to employers to tiptoe around in case something is happening for an employee - if that were the case life would be unworkable. Every time someone was off sick they 'may' have cancer for example. You just cannot proceed like this. This is why people are asked if they consider they have a disability when they apply for jobs - if you have not disclosed a disability that this could be part of, or shared information about what is going on, the employer is not responsible for doing anything other than treating you as they would everyone else.

It seems the employee hasn't followed procedure, by sending his sick note to the agency instead of your husband. Maybe that could be grounds towards dismissal.
My sister has her own business but uses an outside company for HR advice. Is that an option?

I'm not saying it's right what the employee is doing. It's just such a strange thing to do after 2 weeks in a job (one off sick). Makes you wonder if there's some sort of overall plan by the employee!

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.

the employee can't "argue" anything in this situation. Stress is not a protected characteristic, stress is a health-related symptom as a response to an adverse situation. Technically stress and a disability are two completely different things, and having not declared that he was disabled to enable his employer to put in place reasonable adjustments, he doesn't have a case to answer, if all the facts here have been reported accurately.

they haven't declared any disability to their employer, so the employer cannot be expected to mindread. They've gone off on sick leave with "stress" after a week, which is unreasonable to use the employer as the source of stress.

In this situation, I'd let them go with a week's notice- they're welcome to try taking the employer to tribunal for discrimination, If they're stupid enough and have time on their hands. They won't get very far.

If he's off with stress after a week's work then he needs to fire him definitely be obviously doesn't need this job that much

To be honest, if he's claimed d&v, then claimed "stress" and is refusing to discuss it, I'd just give him a week's notice, no need to give a reason, and end his contract.

Your husband probably has some sort of insurance covering employees, ie things like liability should they have an accident. This may well include access to legal advice around employment. He should check.

Could he dismiss him but not say it’s because of sickness? Then that avoids any argument down the line about disability. Just say his work wasn’t any good the week he was there.

What his contractual notice period during probation? Give him this amount of notice and let him go. Pay SSP only during the notice period. If he doesn’t have a contractual notice period, then during the first month, this is zero. After one month, it is one week. So your DH may want to act quickly.

Or if he hasn’t actually sent your husband the doctor’s note, fire him for gross misconduct. No notice period and no SSP.

Personally given the lack of personal contact with your DH around the absences I wouldn’t give him a chance to demonstrate this is just bad luck with a poorly timed illness. It’s not the time off which is the real issue here, it’s the going AWOL and contact via the agency.

Employee sounds like they're not a great prospect. But I do think that as a business owner and boss, your DH should know his contracts, and contract law, well enough to be confident about the next steps to be taken.

Your husband can pay for HR advice to ensure he follows the law correctly.

What is the advice from the HR team at your Husbands company? They will be there to advise and guide.

If there isn't one, why not? If your husband runs a business he either must have the employment law knowledge to employ other people or he needs to outsource it.

A business owner getting legal advice via his wife's Mumsnet account is a recipe for disaster.

I would check with ACAS.

If they are through agency you should be able to end their assignment with immediate effect.

If they have been taken on a perm basis what does their contract say? is there a probation period?

I would suggest that if he hasn’t already done so your husband sets up some kind of employee handbook which lays out the rules for things like calling in sick etc.