Possible sacking on medical grounds

[mattyn1]

Mrs has suffered quite a bit in the last 12 months with ill health, and while her employer has been rather considerate, she has been summoned to a stage 3 capability meeting late next week. She feels she is going to be sacked at this meeting.
Illnesses have been possibly related but unconfirmed - at best she has been unlucky and suffered with a number of illnesses.

Now fortunately she has just been offered another job that is about to go to References. She attended the interview process during her legitimate time off, not while off sick. She is in a bit of a quandary as to handle this meeting. Does she resign prior to this meeting or does she wait to be sacked.

I think it comes down to two things. One, what happens financially with either option.....being brutally honest she wants to be as better off financially as possible so which is generally the best option?
Two, which is the best option should the new job fall over - there is no indication it will other than a spanner in the works with references but I am trying to be careful "just in case".

I think I have the essentials down ... my thoughts are for her to resign, maybe negotiate her notice etc, and leave on her terms. However I am far from an expert in these matters.

So I would appreciate your thoughts.

[davepoth]

I'm not a lawyer, and you should probably talk to one before acting.

Stage 3 does sound like it's very near the end of the process, so dismissal sounds like a possibility.

Fortunately I think you're in not a bad place - with a new job all but secure, I think it may well be a good time to have a "without prejudice conversation" leading to a settlement agreement.

What that would mean in effect is that your OH would agree to leave the company and effectively waive any possibility of litigation, and in return you can ask the company for some things. This is usually pay in lieu of notice, a bit of cash, and most importantly (in your situation anyway) an agreed reference.

That would mean that you could lock down the reference your OH is given, and possibly remove any reference to the illness/capability process that might be on there if she is dismissed. It's rare for companies to put that much detail on a reference these days anyway, but it would be nice to have certainty.

[mattyn1]

Thank you, and sort of how I see it. That conversation is happening in the morning. We will see how that goes, but she is triggering it with a general email first thing tomorrow.
Is it a standard "negotiation" then?

[21TonyK]

Am I right in thinking that companies only ever state the basics in a reference?

Mrs X worked for XXX Co. between the dates of x and y in the capacity of zzzz.

I know this is all my current employer would ever put on paper.

[Jasandjules]

Is it just generally being unwell or is there a chance of a disability?

Do you just need to buy time?

[mattyn1]

Jasandjules said:

Is it just generally being unwell or is there a chance of a disability?

Do you just need to buy time?

A lot of illness .... no disability I would suggest!
Pnuemonia, kidney infections and now probably gall bladder out! Been a st twelve months!!

[rambo19]

21TonyK said:

Am I right in thinking that companies only ever state the basics in a reference?

Mrs X worked for XXX Co. between the dates of x and y in the capacity of zzzz.

I know this is all my current employer would ever put on paper.

But the killer question a new employer asks the old employer on a reference is;
would you employ this person again?
Old employer puts 'no',= bad reference.

[p4cks]

rambo19 said:

21TonyK said:

Am I right in thinking that companies only ever state the basics in a reference?

Mrs X worked for XXX Co. between the dates of x and y in the capacity of zzzz.

I know this is all my current employer would ever put on paper.

But the killer question a new employer asks the old employer on a reference is;
would you employ this person again?
Old employer puts 'no',= bad reference.

An employer is highly unlikely to answer that question in a reference so as not to libel themselves. If they do, they're playing on a very sticky wicket.

https://www.gov.uk/work-reference

[Vaud]

rambo19 said:

But the killer question a new employer asks the old employer on a reference is;
would you employ this person again?
Old employer puts 'no',= bad reference.

Never seen that before.

[Beetnik]

I think the reference itself is unlikely to be problematic, albeit you're dependent on the person giving the reference knowing what's allowed and what's not. I see the dangers are twofold:
1. The 'off the record' and therefore deniable phone call from the business giving the reference - unprofessional but it happens.
2. The pre-employment health questionnaire which may come her way - along the lines of:
[i]1. Do you have any medical condition which requires you to receive any treatment or regular medication supervised by your doctor?:
2. With reference to the Disability Discrimination Act, do you have any physical or mental impairment which significantly affects your daily living?:
3 a). In the last 12 months: How many days have you been unable to attend work/studies or undertake normal daily living tasks, through sickness?:
3 b). In the last 12 months: How many episodes of sickness have you had?:[/i]
Answering any of these questions dishonestly renders you instantly dismissable at any future date.

The 'without prejudice' interview and exit is good advice - saves a lot of hassle all round.

[Beetnik]

Vaud said:

Never seen that before.

Not uncommon but you can always answer 'yes' (but not add 'but only on a part-time basis as a cleaner')

[mattyn1]

All good points and sort of confirm how we have been thinking. The without prejudice interview has been requested and acknowledged by her boss.

[Vaud]

mattyn1 said:

All good points and sort of confirm how we have been thinking. The without prejudice interview has been requested and acknowledged by her boss.

A compromise agreement might be worth seeking.

The payments can be tax efficient, plus they would pay for an independent legal review of any proposed compromise agreement (in my experience).

Thy may be willing to pay notice period + a nominal sum for her to exit this way.

[DSLiverpool]

Vaud said:

rambo19 said:

But the killer question a new employer asks the old employer on a reference is;
would you employ this person again?
Old employer puts 'no',= bad reference.

Never seen that before.

The way this is asked now is "would you state the number of none holiday days taken" any answer gives the asker information.

Edited by DSLiverpool on Saturday 21st January 17:32

[condor]

Vaud said:

rambo19 said:

But the killer question a new employer asks the old employer on a reference is;
would you employ this person again?
Old employer puts 'no',= bad reference.

Never seen that before.

I've had a reference request asking that.
Employees usually expect a good reference from an employer , otherwise they wouldn't put the employer down as a reference - unless they think the new employer won't bother to check up.

[TwigtheWonderkid]

Financially, definitely go for a sacking over redundancy. Depending on her length of service, they will almost certainly have to give her more notice than she will have to give them, and whilst she will have to work her notice, if they sack her they will almost certainly want her to go immediately but of course still have to pay her in full for her notice period.

If I resigned, I'd have to work a months notice, whereas if I was sacked, I wouldn't have to work and they'd have to pay me 3 months notice.

[Vaud]

TwigtheWonderkid said:

Financially, definitely go for a sacking over redundancy. Depending on her length of service, they will almost certainly have to give her more notice than she will have to give them, and whilst she will have to work her notice, if they sack her they will almost certainly want her to go immediately but of course still have to pay her in full for her notice period.

If I resigned, I'd have to work a months notice, whereas if I was sacked, I wouldn't have to work and they'd have to pay me 3 months notice.

Financially, go for a compromise agreement!

[edc]

Not sure where redundancy has come into the equation as there is no suggestion the role is redundant. I'd also suggest that if the company is following a correct process and are already near the end then barring something that upsets the balance they are under no incentive to offer a compromise agreement.

[mattyn1]

We will see on Monday - she has a telephone meeting.

[Slurms]

edc said:

Not sure where redundancy has come into the equation as there is no suggestion the role is redundant. I'd also suggest that if the company is following a correct process and are already near the end then barring something that upsets the balance they are under no incentive to offer a compromise agreement.

I'm inclined to agree, if they're already at the final stage of a capability process then you're probably already past the point where they're likely to give much ground in a compromise agreement as they're already at the point where they can terminate.

I'd suggest you just aim to get them to agree the wording of any references and call that a win at this point.