Tricky situation with team member - any advice please?

[builderbare]

I manage a very tricky member of my team. She had previously been unwell for a while with a condition that’s treatable - she initially had a very long spell on sick leave then a very long phased return. Shes back FT now but has hung on to one day a week WFH. This was agreed with Occ Health and on the advice of HR we were told that this was considered a reasonable adjustment.

This condition seems to improve when it suits and when she thinks there’s a risk that the WFH will be revoked or there’s grumbling about it then it flares up again, despite it being a condition that once treated should be cured. She’s constantly pushing the GP and phoning up consultants but from what she’s saying they can’t find anything wrong with her now.

It should be noted that Shes got an ulterior motive to WFH one day a week which I won’t go into here as it could be outing.

We’d Like her back in the office FT - admittedly there’s not too much of an effect on the business but we know that it’s not being done to help her health, it’s being done for other reasons and quite frankly it’s not fair to the rest of the team who would probably all like a day at home.

HR are not being terribly helpful and are saying that we should take everything she says at face value and as it’s gone on for so long it could now be classed as a disability.

Theyve suggested that we call a meeting with her to try and get to the bottom of exactly what is the matter with her but they’re also advising that we tread carefully.

It doesn’t help that the woman is quite militant and seems to tho k she’s knows all the laws and what she’s entitled to.

If there are any HR professionals that could give an idea how best to proceed I’d be grateful.

Also, she is working on her wfh day so there are zero real issues.

It seems like it’s acceptable to let her call the shots going forward then, we can’t ask anything too much about her condition despite never really getting a straight answer as to what’s wrong with her and what we do get is ever changing.

I can see your problem, and I think the snide comments are a little unfair.
Those who manage or have worked with such characters know the impact on the team.
I think it's quite obvious when someone is taking the piss and it does affect your trust in them and also makes the team feel hard done by when it appears someone has it better than the rest.
A very difficult situation.

She’s exercising her legal rights, are you saying she shouldn’t?

You can also request WFH 1DPW, using existing law.

It’s really awful when ppl resent work rights.

You don't seem to have much of a leg to stand on.

She's back at work.

She's in the office four days a week and wfh one day a week. You say that she definitely gets her work done from home so it's not the case that she is not working.

Your main objections seem to be that she knows her legal rights and that she's got a day wfh that the rest of the team don't have and they (and you) think it's unfair,

Well, people are allowed to know their legal rights and enforce them. It can make managers jobs harder as it is easier to ignore the law but it's the law for a reason. The one at fault here is you if you're trying to do illegal things (which it sounds like you are)

People with disabilities (which she now has) often have colleagues who get upset because "it's not fair". As a manager you should be dealing with this not joining in with them. Reasonable adjustments are law.

What's coming across is that you have a disabled employee and are pissed off the law protects them and that they know they are protected by the law because you want to force them into the same working conditions as everyone else.

This is, rightly, illegal.

Give all the team a day WFH then if it doesn't affect the business.

If an organisation states that everyone needs to be in the office, then an individual line manager does not have the ability to countermand that.
I'm not sure if some people on here understand how big businesses work.
OP there's a lot of details in your posts, as a LM it's not great to be going on to a forum and sharing lots of detailed information about an employee and looking for free HR advice. You have an HR team - follow what they are saying and if you have doubts about performance then monitor and manage that.

But it's not a big business and it's because it's what the small business owner wants because he's a dinosaur.

Exactly.

You're getting a bit of a hard time OP. But I feel your pain here. I work in a large organisation and there are definitely folks who know exactly how to work the system to get what they need out of it. And GP fit notes and OH assessments are all frankly just rubbish at actually helping you actively manage sickness. I've got someone in my team who's been off since before summer and just keeps producing fit notes which expire and then we try to contact them to come back to work and lo and behold they go to GP and get another. For various vague things which are impossible to get to the bottom of in a 10 min GP appointment and they keep missing OH appointments and even if they make one the report comes back saying "xxx does not feel in a position to work at the moment". We absolutely know what the situation is, they don't like the role and their new team leader had started managing them more actively (the prior one just let them do whatever they wanted as they were a but difficult to manage).

Anyway, rant over. I just want to say that even if you strongly suspect they are taking the mick. There's nothing you can really do. You will have to just follow HR advice and take it at face value and work through the process. Focus only on work outputs and as PP said, look at evidence. Bear also in mind that overly managing someone who is on a RTW is also not a good idea so you will have to continue to treat carefully with this person. Ultimately this is where you find out how good your HR team and policies are.

Any medical condition that lasts more than a year and has an impact on the person's life can be considered a disability under the equalities act so your HR person is acting in such a way to stay within the law.

HR professional. It’s not “can”, it’s “may”, and can only be established in court.

Would I would always give pragmatic advice - that it’s better to assume it would be - provided there is some sort of evidence for it - it’s not right to just take the person’s word for it.

OP, what did the occ health report say about the prognosis? If it said “should return to normal duties once a phased return is completed” or similar, and didn’t suggest the WFH needed to be permanent, that could be your way to suggest that she needs a review by them. Ask careful questions. If occ health have just parroted what she said to them, there is risk in that she may persuade them to recommend WFH is made permanent.

I wouldn’t be assuming that asking her to return is illegal 🙄 or what the final state of the new employment rights bill will be (even the CEO of CIPD is arguing against some of it).

If the owner decides that they don't want WFH then they need to make a standard announcement that people need to be in the office, and they need HR to be onsite to support this and to advise on the management of this.

If they don't then they need to stop banging on about it.

HR works for them, not the other way round.

Once I discovered I could have a job that was home based, I rarely went into offices unless it was for meetings or gatherings.

If this business is office based for a good reason then that reason should apply across the board. A boss in fully entitled to run their business as such without being called a dinosaur. If you want to run your business like that, then you are entitled to also do so.

It's one day a week. You've said it makes no difference to the business. You also said it benefits her in other ways - well yeah home working does that. It's flexible.

You just sound a bit petty and resentful over it to be honest and given her history, personality and HR stance I don't really think you're going to get very far with it.

If she actually gets her work done, it's difficult to see what the problem is.

That isn't a reason, though. Why is it discouraged and not company policy?

Ok small business not big one.

But unless everyone has hybrid or wfh contracts, the boss is still entitled to tell everyone to be in the office.

It doesn't mean I personally agree with it, or indeed that HR at the company agree with it, but it's the owners choice.

Battling against an accommodation of wfh one day a week for an employee with an ongoing disability and an encyclopaedic knowledge of staff law, is a useless cause. HR knows this.

If she isn't producing work in an efficient fashion or you suspect she is taking protracted breaks, then tackle that.

There's a lot of ignorance on this thread about the current law on flexible working (which includes working from home). Here it is. You'll see that anyone in the organisation would be entitled to request it. I've seen nothing from this thread which suggests the OP's organisation would have a good reason to reject applications to work 1 day per week from home.

https://www.gov.uk/flexible-working

For what reasons? I'm an HR professional and genuinely interested

The problem here is the business owner. For goodness sake, offer everybody the opportunity to WFH one day a week.
It's good for employees and good for business (if the work can be done from home) ... helps with recruitment and retention.

It depends on what the actual job is. Marketing, fine. Serving in a shop or welding huge compontents, not so easy.

You’ve made a lot of assumptions about this woman which is incredibly unprofessional.

As OP said the work could be done from home I was talking about this case not working serving fish and chips ... which can't be done wfh

@builderbare There is a difference between WFH under the right to request flexible working and as a reasonable adjustment. The latter carries far more weight.

This WFH one day a week has been presented as a reasonable adjustment and so has to be treated as such. In your employees shoes, keeping it as a reasonable adjustment makes far more sense than submitting a flexible working request.

What you can do it go back to the original OH advice and the fit note recommending a phased return. Be clear what was actually said I.e. were there any review dates, time limit's etc? This may give you the opportunity to do a further referral to OH I.e. if the fit note says a phased return over 3 months and that was 6/12 months ago. So asking for further advice as the condition is not improving as expected is a reasonable action.

However, I would take the advice of other posters, and your HR, and leave it alone. Accept she meets the definition of disabled and one day a week WFH is a reasonable adjustment.

What you can do is manage the time spent WFH. It is reasonable to expect her to be contactable during work hours on her WFH day. It is also reasonable to expect her to complete her workload on the WFH day.

As part of regular 1:2:1s I would raise the fact she is regularly uncontactable on her WFH day (have dates and times) and explain she is expected to be contactable as though she is in the office. Make sure you follow up 1:2:1s with bullet points of the discussion including that she expected to be contactable during working hours. Keep a record and give feedback at 1:2:1s, either thank you noticeable improvement or still not always contactable.

WRT taking longer than 8 hours to do her work. Is this the same on the days in the office? Is she claiming overtime/toil? How do you know it’s taking longer? Is the suspicion that she is not working but doing something else during the day and then doing the work later into the evening?

Ask her to submit a formal flexible working request on the grounds of disability. Let HR deal with it