Letting staff go - looking for advice

[Wasthatasnipe]

Hoping someone might be able to help me work out the best way forward here.

I work in a small cooperative (no bosses as such, but I have line management responsibility for this person), and a staff member has been signed off sick with back problems since mid-March. I'm not accusing them of making it up, but we do suspect they might be taking the piss a bit, as we provide an essential service so have kept running throughout the crisis, but it was clear from early on that they didn't want to really (but had no basis for being furloughed). A doctor's note backdated to the end of March materialised last week, but I gather they haven't actually seen a doctor, it was just arranged by phone.

Today I've been informed via text that the problem is "likely to be long term" and another sick note is on its way.

This is low-skilled work, which they weren't great at anyway, and the person who has stepped in to cover for them has done so much better. The employee has only been with us for 8 months, although technically it's a permanent position after 6 months as per our company policy.

Ideally we would prefer this employee didn't come back, but I'm not sure if there's a legal or moral basis for letting them go. Am I correct in thinking that if employment has been less than 2 years, they're not legally entitled to SSP and job protection while signed off? If we were to make the post redundant due to some 'restructuring" would we be ok legally? It's only a very part time role so this is feasible.
The ethical implications of letting this staff member go are another matter, but I wanted to be sure of our legal position first. Thanks in advance for any help.

I would e wary about disability discrimination
Take advice

Thank you, yes that's the sort of thing I was worried about. Just to stress that wanting to let her go has nothing to do with the back problem, which is very recent.

It's not a simple answer unfortunately. I would recommend a call to ACAS to discuss it in more detail. Ultimately if there are performance issues they should have been handled whilst the employee was at work. If it's now an absence issue you'd need to be careful with how you handle it depending on what the illness is.

There is no chance of tribunal due to his length of service so you could just get rid, but I would definitely speak to ACAS.

As they are off sick now I'd be extremely careful... you need to review contracts and policies, had they been having appraisals and performance reviews?

If you have nothing documented in this regard then you are on shaky ground to then fire them whilst they are off sick on the basis "they weren't great before going off" as you have no actual proof.

Are they just getting ssp? So you aren't actually paying them?

I would suggest a telephone call/meeting. Ask for full details of the condition - how long it's been, what treatment they're receiving, any medication. The more you delve, the more likely you are to find out if they're lying.

It is not true that there is no chance of a tribunal.
If there is any question of discrimination (including disability0 the 2 year service does not apply

Agreed, but OP doesn't know enough about the "condition" either way to make a judgement. Hence why I said call ACAS and get advice based on the full facts (once they've been sought).

If their sickness absence had nothing to do with wanting to dismiss her then you would have done it sooner. So you're talking bullshit.

The 2 year rule does not apply if discrimination has occurred.

I agree, it's the absence that is making you want to get rid of her otherwise you'd have been thinking and asking these questions before now (before the absence). I'm not sure what qualifies you to say someone is lying? Have you witnessed her competing in a long jump, 200m sprint or anything else that suggests she doesn't have a sore back? A doctor has signed her off so the doctor has put their name to her ailment. They don't do it willy nilly usually.

I've never been signed off but a colleague of mine was and my employer at the time was similar to you. Thankfully they got a solicitor involved and they got a settlement from the employer for discrimination.

If she isn't good at her job, she could have been let go at any point before this.

Yes as I said take advice
I would probably take legal advice rather than ACAS ,particularly at present

Ok, to answer a few questions - the injury was a result of a fall. We suspect they may be swinging the lead because they were making it clear they were uneasy about the impending Corona situation, but as we're an essential service there was no question of furloughing anyone other than those in the vulnerable group (which this person is not).
As I said, we're a very small cooperative do we manage ourselves, we don't have much (any) time to spend on procedural stuff unless we absolutely have to, and we're all expected to take a lot more responsibility for our work than most people are used to. This person's performance has never been great, but as it was v part time we've just made too and tried to give them a bit of extra support, as that was far less hassle than starting a disciplinary procedure.
As regards paying them SSP - the company who does our payroll told me that we can just pay the base rate but it would be our expense, that it's not reclaimable? I have no prior experience of this but that's the advice I've been given.
Thanks for taking the time to respond. If anyone has any experience of the kind of business I'm describing that would be really helpful, as it feels as though some posters are assuming the worst about my motivations without really understanding the kind of management I'm talking about (flat or non-hierarchical). Thanks again.

Just to emphasise - I am not the employer. The company is the employer, and we plus our cooperative members are the company. There is no hierarchy. I am the default line manager because this person works in the area in which I'm most experienced in, therefore take responsibility for, but I get no reward for this (financial or otherwise).

You really need legal advice, because they may well claim disability discrimination . I worked for a small company and they got totally burned by someone doing this. Someone applied for a job and went off sick less than two weeks after they started. Then they said they had suddenly been diagnosed with a condition that meant they couldn’t possibly do the job but they maintained that they could.

It cost the company a fortune, it was only a small family business and the person got about a years wages for working about 6 days.

As a small business owner I can not emphasis enough how important paying for proper HR advice is. There are many services that you can pay a relatively low monthly fee too and they will support and advise you in this situation. Often their fee covers insurance that means that even if you follow their advice and still end up at tribunal your costs are covered.

You can’t just make a post redundant to get rid of someone.

I can’t advise you on the other issues but I think you should bear in mind that most doctors apt’s are not going to be in person right now and many will be using things like video, so that isn’t a good reason to dispute the note.

If its due to poor performance, wtf was he permitted to pass his probation and be made permanent?

If you make redundant, though questionable Morally, you'd need to make sure that more than half of the new role was different to currently and that he had opportunities to apply for any alternative roles, with the rigmarole of how to say he's not capable or qualified or experienced for these etc.

I would think that in the first instance, that maybe asking to meet albeit via conference call or if lifted permitted, to discuss what his concerns were before the lockdown. These are very real and validated anxieties/concerns that he raised and these being addressed is the best way forward. Reassuring and putting in sufficient safety measures as possible.

If that doesn't work, then really you have 4 choices :
Try to go down the attendance route and eventually being unfit for work
Capability
Redundancy
Try to convince to resign with a reference etc - but it's unlikely he'd accept if money issues as couldn't then claim benefits - unless given a payout.

Before proceeding with any action you need to obtain consent from member of staff to obtain access to medical records. Send a list of questions to doctor regarding current condition. Ask if there has been any historical issues relating to this problem and if they see the problem lasting in excess of 1 year etc. You might want to take further advice on this point. Separately you need to do a referral to occupational health for a formal assessment. This is to cover your backside. You also need to do an appraisal/ performance review and set key objectives for staff member and refer to staff induction and see if any disability disclosed. When all the above has been done you will be in a better position to proceed. If required you might need to conduct a reasonable adjustment interview. 2 people need to be present. Ensure the conversation is formally recorded and staff member signs to agree information given and any outputs agreed.

If you skip the steps above you will put your own job on the line and risk a claim on grounds of gender and/or disability under EqA.

This can be done without 2 years service. It kicks in day 1 of employment. Failure to make reasonable adjustments is also actionable.

If you have knowledge of disability be sure to follow advice above.

I have just been through similar with an employee at the end of last year. I don't know if it would help in your situation but look into short service dismissal

It's designed to protect employers in situations like this as long as the employee has less than 2 years service.