Sick employee, her boss, our HR and my concerns ...

[ItsLikeHeardingCats]

NC for reasons of confidentiality, advice from seasoned HR experts would be much appreciated:

One of my employees, let's call them X, has a suspected serious medical issue and required repeated time off. X is very concerned that this should remain a personal matter and has thus far declined to even book sick leave, despite taking considerable time off. X has booked all leave taken to "annual leave" with the knowledge of X's direct supervisor as well as their line manager. X is declining to inform HR and/or take sick leave despite repeated absences and has explicitly expressed that they want their time off to be booked as "annual leave" so that their medical condition stays secret.

I'm neither X's line manager nor their direct supervisor. From an operational perspective, I'm the boss of their boss and the executive owner of the contract under which X delivers work (exclusively). X and I work for separate legal entities within the same group, whereas I work locally and X for another subsidiary abroad (still EU, though). For the longest time, I wasn't even aware of the issue myself. I was eventually informed when I had become concerned not about X but about their direct supervisor's job performance (for repeatedly approving ad-hoc leave when the project was behind schedule and productivity was far below the forecast - now I can see how come, but I couldn't have known without this crucial piece of information ...)

X's line manager in the local org. has been aware for much longer and approves of the situation. OTOH, the line manager obviously knows their personnel better - but they will also be more likely to be in a conflict of interest (staff reducing annual leave accrued is good for our KPIs as group leads - sick leave is not).

I'm a bit concerned about the whole thinh and pondering whether I should escalate the issue:

On the one hand, I fully understand and appreciate X's wish to keep their illness a secret. But then, there are a number of implications:

a) first of all, as an employer we can't possibly make reasonable adjustments for an employee if, officially, we don't even kniw they're sick - and X is entitled to these. As things stand, their performance will be measured against baseline expectations.
b) I'm a bit concerned about X using up their entire leave allowance to keep their secret - and afterwards being put in a position where they can't take more leave for the remainder of the year at a time when they're still recuperating from a serious issue and may need it more than usual
c) I'm not even certain it's strictly legal for an employer to knowingly let a member of staff book sick time as annual leave - this sounds like the sort of thing that horrible managers would pressure people into doing. And, yes, it's knowingly. X's line manager has known for over a month.
d) finally, it's an operational issue: I can't deliver on a contract when I can't plan my workforce. This is by far the smallest issue, I can handle it - but it's still an obvious implication of handling matters in this manner and would not work at all of equally applied to all other employees, too.

I've spoken to line manager and am told it's all fine. Gut feeling tells me it's an employment law grey area at the very least and arguably not in the employee's own best interest in the long run. While I'm not intimately familiar with local policies in X's country, in the very worst case we might be looking at what technically constitutes a breach of contract on X's part.

If it were one of my own administrative subordinates, I'd not allow it, TBH. I'd sit down for a chat with my employee, express my sympathy, explain all of our data protection and confidentiality policies and insist they involve HR for their own protection more than anybody else's.

In case it's not abundantly clear: I wish X all the best. It's not so much X's behaviour I'm concerned about but the fact that their manager is, basically IMO, helping to cover up that an employee's personal situation is interfering with their ability to do their job and preventing the firm to take adequate protective measures for said employee whilst allowing them to lose their entitlement to annual leave.

Really not sure how to proceed: normal policy would see me taking this up with their line manager. See above.

What would smarter mumsnetters advise?

Sorry for the typos, by the way, I'm on mobile and have sausage fingers. Hope it's still legible.

"I'm neither X's line manager nor their direct supervisor. From an operational perspective, I'm the boss of their boss"

"I've spoken to line manager and am told it's all fine."

Told it's all fine by who? If you're the boss of the boss, don't you get to decide whether it's 'fine'? You are right, it isn't fine for all the reasons you mention, it's a terrible idea. But if you're the boss's boss, can't you just tell them to stop doing it?

It's complicated: multi-national matrix organisation ...

I'm the boss of the boss from an operative standpoint. I.e. I'm the executive in charge of anything X does, under the auspices of their direct manager, from 9 to 5.

But: I'm not X's line manager, nor the line manager of X's boss. Looking at it from this angle, I'm merely a more senior employee of another legal entity within the same group company. I basically "rent" the people who work my contracts from other managers' and, in this case legal entities', employee pools (and "rent out" people under my own formal leadership to other contract executives in turn; that's just corporate structure).

As an example: I could absolutely take the decision to have X or one of X's team mates removed from my contract - but I do not get to fire them. That's what X's line manager is for. I could, technically, demand of X's line manager that X be taken off my team and replaced with someone working at full capacity - but I wouldn't, seeing as X has been a good performer and deserves protection.

Challenges of complex organisational structures ...

Whilst they might not want HR to know, bottom line is HR should know. I personally would be concerned as X's Manager about the position I would be putting myself and the company in by not following standards and not allowing the company to make reasonable adjustments and protect themselves also. Surely, legal, the company could be open to all kind of risks by not having this opportunity.

So with that in mind, in your position, I would probably, regrettably for X, feel the need to involve HR.

So with that in mind, in your position, I would probably, regrettably for X, feel the need to involve HR.

This - no hesitation - they need to be involved, and while the employee may wish to keep it secret, you don't get to choose what is kept secret in a contractual relationship - i.e. x doesn't get to dictate the conditions around who knows etc. - you are right to be concerned, and the company has various legal obligations towards that member of staff...

straight to HR - it can be done sensitively, but should be done

Oh this should go straight to HR, there's no ifs or buts about it. If it continues the flexibility she gets will start to anger her colleagues for a start.

The thing I would check is - this "suspected" serious illness she has - has anyone in the know seen anything to prove that she is indeed undergoing tests? The secrecy is a bit odd. Not everyone is honest and it would be an easy way of getting ad hoc holiday approved where it wouldn't normally be allowed, without having to give a reason.

It does sound as though you are not the right person to be handling these issues if you aren't in X's line management chain. Your concerns are valid though and I would advise you put them in writing to a person who is in a position to take action, whether that is X's manager or their next in line or someone one else. In terms of the legalities I don't think it is strictly speaking illegal for the company to allow X to use their annual leave as sick days if X if has very clearly been advised (ideally in writing) that they are absolutely entitled to sick days and the information will 100% be treated as confidential etc etc (if it's just the odd day at a time they can self-cert and the company is highly unlikely to ask for 'proof' or details of their reasons for absence). After all a company can't stipulate what you use your annual leave for and if you freely and willingly choose to spend it going to hospital or whatever then I don't think you can be compelled to be on sick leave instead- if X is actually not fit to be at work then s/he could be suspended (on full pay) on medical/health and safety grounds but if things are just at an investigation stage then it sounds as though that isn't the case and suspension would be a bit of a draconian step?

As an HR person I too would be concerned that if details of X's condition aren't clear or disclosed then the company can't be sure it is fulfilling its responsibilities to the employee to keep them safe and make reasonable adjustments. But the thing is even if HR were aware X (if so minded) would be completely entitled to refuse any OH assessments or to disclose their medical records etc. anyway, so there might be not much the company can do. I've had this situation in the past where an employee clearly is in the midst of ill health (especially MH which is very sensitive for obvious reasons) and either denies it entirely or acknowledges but refuses to share any details or take up any offered support, it ends up being a very tricky balance between fulfilling the company's responsibilities and duty of care (to the person's colleagues and clients too as well as the employee themselves in some cases) and overstepping the mark and compromising the employee's privacy and right to self-determination. Well meant attempts to help can come across as threatening or intrusive and ruin relationships/trust making things much worse, so sometimes watchful waiting, documenting what has been done/said and the manager and trusted colleagues continuing to offer as much support as possible (leaving the door open to more 'official' company involvement if/when X agrees to it) is the best that can be done... tricky one though and I fully sympathise. From your point of view I'd be discreetly trying to build some resilience into the team, do not take X off key projects or anything but be prepared that it sounds likely a period of extended absence or reduced duties might be in the works and be ready to be able to support that without pressurising X or diminishing their value to you?

Disclaimer the above is based on UK law, if she is employed in another jurisdiction it could be different, and I'm not a solicitor so don't take my word for it anyway, just based on experience...

Much appreciated everyone.

So, I've gone ahead and - with a very heavy heart, knowing that X will feel this is a breach of trust - have informed X's divisional COO, i.e. the person who's accountable to me for inter-company services rendered to me from that group and, more importantly, also happens to be the line manager's line manager.

I genuinely hope I've done right by X, X's colleagues (who shouldn't have to shoulder insane hours to help conceal the fact that a colleague is missing in action from everyone else) and my client (to whom we've made a committment and who deserves notification if we're struggling to keep it).

I've also gone ahead and given a heads-up to the client that we're facing an issue - though obviously without saying what precisely it is (or that we apparently hire complete idiots into senior management in some parts of this firm ...).

Now hoping DCOO does the right thing and sees to it that the situation is handled with tact and care for both X and the firm.

Fingers crossed!

She prob feared losing her job through excess sick leave or feared the drop in pay if sick leave is paid at a lower rate and that’s why she tried to hide it, rather than wanting to hide the reason for the sick leave.
At least it’s in the semi open of hr, who should not tell anyone about her reason for sick leave, and she isn’t in breach if any policies.

It depends on which country X is in. Rules around sick leave vary between EU countries. A German manager we had struggled to get his head round the fact that in the UK, we self-certify for the first 7 days. I would assume though, that all EU countries have a minimum level of protection around sickness. I just don't know what that level is, nor which countries offer only the minimum or more.

However, even if you know what sickness rules X has to work by, I think you were right to raise it, for the reasons you gave. I would particularly be concerned about using annual leave for sick leave - if someone has a serious condition, they're likely to be in even more need of leave than usual, to get a break and proper rest from work and to aid their recovery or on-going management of their condition.

Hope it all works out.

You don't have to disclose a health problem or disability to your current employer, unless it could cause health and safety problems.

So everyone at your place of work need to respect 's decision not to share her personal data with you.

Savings, isn't her condition now impacting business performance with this time off? Of course it needs to come out to HR.

Only D is your concern, frankly.

And this:

we can't possibly make reasonable adjustments for an employee if, officially, we don't even kniw they're sick - and X is entitled to these

only applies to disabilities, not sickness, not even serious sickness.
If you're not the person's manager, it's simply not your business, in fact, you shouldn't even know the bits you do know. You need to focus on operational delivery and if that's failing, escalate that and let them sort out why it's failing between them.

Reasonable adjustments may not apply at all, as the employee isn't in this country, but I assume EU countries will have similar approaches.

In the UK, chronic health conditions and progressive diseases count for reasonable adjustments, if the employer is notified.
This can include things like diabetes, asthma, HIV, which I think most people wouldn't think of as disabilities per se, as well-managed chronic conditions could mean someone is otherwise healthy, but probably still has more medical appointments for annual (or more frequent) check-ups on the condition, and medication reviews, and often they happen within working hours. It would be a reasonable adjustment to not be penalised for having to attend this sort of appointment, especially if a workplace uses the Bradford factor or something.