Penalised for working slower due to illness...
Discussion
The law is quite clear on this. He went to his employer, told them he had a condition that would slow him down in his work, and was told (hopefully in writing) that it was fine.
Unless their condition has changed such that their work performance has taken a further and significant turn for the worse, the employer is walking into a minefield.
Unless their condition has changed such that their work performance has taken a further and significant turn for the worse, the employer is walking into a minefield.
First of all it is perfectly possible and perfectly legal to discipline and even dismiss an employee who is ill, even if that illness amounts to a disability. Companies do not need to continue to employ people who underperform by reason of illness or disability, whether that be through recurring sick days or lower productivity.
What the legislation in this area does do is make it complex to dismiss for reasons of illness or disability but if procedure is followed it is quite possible. The primary duties on the employer are to consult the employee, to do everything reasonable to adapt the job to match the employee's capabilities and to give the employee sufficient time to recover.
Holding a meeting to discuss the sickness absence is probably in the interests of both parties, it is a formal meeting at which the nature of the health problems can be made clear. In particular if the absence has a common cause it is important for that to be clear because the process for dealing with long term illness is different from a lot of short term illnesses. In the latter case disciplinary action can work off the number of days in a time period and dismissal can result (following appropriate warnings) if the numbers exceed those allowed.
With long term illness it is more complex, particularly if the illness could constitute a disability, the employer should get medical reports, they should consult on what can be done to improve the situation and, if recovery is likely, allow time for that to take place.
But sickness days carry on at an unreasonable level and/or performance is below what is required dismissal can, eventually, result.
As for joining a union - unions are attuned to people joining when they have a problem, so just as trying to get insurance to cover you after the incident has happened, they might not be willing to help. But arguably and around £11 a month it could be worth a try.
What the legislation in this area does do is make it complex to dismiss for reasons of illness or disability but if procedure is followed it is quite possible. The primary duties on the employer are to consult the employee, to do everything reasonable to adapt the job to match the employee's capabilities and to give the employee sufficient time to recover.
Holding a meeting to discuss the sickness absence is probably in the interests of both parties, it is a formal meeting at which the nature of the health problems can be made clear. In particular if the absence has a common cause it is important for that to be clear because the process for dealing with long term illness is different from a lot of short term illnesses. In the latter case disciplinary action can work off the number of days in a time period and dismissal can result (following appropriate warnings) if the numbers exceed those allowed.
With long term illness it is more complex, particularly if the illness could constitute a disability, the employer should get medical reports, they should consult on what can be done to improve the situation and, if recovery is likely, allow time for that to take place.
But sickness days carry on at an unreasonable level and/or performance is below what is required dismissal can, eventually, result.
As for joining a union - unions are attuned to people joining when they have a problem, so just as trying to get insurance to cover you after the incident has happened, they might not be willing to help. But arguably and around £11 a month it could be worth a try.
GeraldSmith said:
What the legislation in this area does do is make it complex to dismiss for reasons of illness or disability but if procedure is followed it is quite possible. The primary duties on the employer are to consult the employee, to do everything reasonable to adapt the job to match the employee's capabilities and to give the employee sufficient time to recover.
OP stated chronic illness, not acute, which requires the employer to make permanent changes if the employee is still capable of working, albeit at a reduced capacity and with expected sick leave. In this circumstance, and with previous adjustments and allowances made, combined with previous lenience of H&S manager that is no longer present, the actions of the employer (by the OPs posts, so not the full story) give reason to suspect that the employer is planning to offload the 'problem' employee.fergywales said:
OP stated chronic illness, not acute, which requires the employer to make permanent changes if the employee is still capable of working, albeit at a reduced capacity and with expected sick leave.
Well not exactly, the law requires the employer to consult and to discuss and make any reasonable adjustments to the working environment or to consider redeployment. But there is no duty to allow the employee to continue at reduced capacity or to provide extended sick leave. Time off for hospital appointments perhaps, but not sick leave beyond a 'reasonable' level.fergywales said:
In this circumstance, and with previous adjustments and allowances made, combined with previous lenience of H&S manager that is no longer present, the actions of the employer (by the OPs posts, so not the full story) give reason to suspect that the employer is planning to offload the 'problem' employee.
Well that is pure supposition. Perhaps they just have a policy of interviewing anyone who has more than nn days off sick over a period. And being lenient in the past doesn't preclude an employer from taking action in the future, in fact it would be used at tribunal as part of the employer's attempts to deal with the situation reasonably.The point I am trying to make is that it is a false sense of security to think that the employer can't take action over sickness of whatever nature. A chronic illness is a form a disability, but if it means that after all reasonable adjustments the employee is unable to do their job to the required standards the employer can follow a path leading to dismissal.
Just browsed back at a study of an employee with Crohn's Disease (common chronic illness given as an example, advice can be laterally applied), here is the 'by the book' advice; employee diagnosed with chronic condition, employer is required to adjust working conditions and not discriminate whilst the treatment and management of condition is stabilised. Once stabilised, consult with employee and take in to account any ongoing issues (short notice absence, treatmet and medical interventions). It is advisable for an employer to seek the consent of the employee for communication with medical professionals to advise on further adjustments that would harmonise the employee's condition management and how they may perform their duties to a satisfactory level.
Only when an employer, having exhausted all options of both adjustment to working conditions and working hours, and not reached a mutually acceptable outcome, then look to dismiss the employee due to a medical condition.
As for prior lenience, whilst an employer may claim this was to aid the employee, it is easily countered by the employee that, based on the lenience shown, they have been able to perform at an adequate level when present in relation to colleagues and that to change the approach taken by the employer would discriminate against them due to the previously acknowledged condition. The approaches towards acute and chronic illnesses of employees must be treated completely differently. If an employee is suffering with an illness that, through prescribed treatment, is manageable but incurable, the employer cannot expect the employee to return to a level of fitness before diagnosis. Many chronic illnesses also include treatments that affect the ability of the patient, which also need to be taken in to account.
In the case of the OP, with no specific performance management in place, the employer is taking a huge risk by disciplining an employee for underperforming who, through a medical condition, has reason to be treated in a manner that takes in to account the medical issues and the associated absences, which, presumably, are verifiable by a medical professional if consent has been given by the employee or sought by the employer.
Only when an employer, having exhausted all options of both adjustment to working conditions and working hours, and not reached a mutually acceptable outcome, then look to dismiss the employee due to a medical condition.
As for prior lenience, whilst an employer may claim this was to aid the employee, it is easily countered by the employee that, based on the lenience shown, they have been able to perform at an adequate level when present in relation to colleagues and that to change the approach taken by the employer would discriminate against them due to the previously acknowledged condition. The approaches towards acute and chronic illnesses of employees must be treated completely differently. If an employee is suffering with an illness that, through prescribed treatment, is manageable but incurable, the employer cannot expect the employee to return to a level of fitness before diagnosis. Many chronic illnesses also include treatments that affect the ability of the patient, which also need to be taken in to account.
In the case of the OP, with no specific performance management in place, the employer is taking a huge risk by disciplining an employee for underperforming who, through a medical condition, has reason to be treated in a manner that takes in to account the medical issues and the associated absences, which, presumably, are verifiable by a medical professional if consent has been given by the employee or sought by the employer.
fergywales said:
Just browsed back at a study of an employee with Crohn's Disease (common chronic illness given as an example, advice can be laterally applied), here is the 'by the book' advice; employee diagnosed with chronic condition, employer is required to adjust working conditions and not discriminate whilst the treatment and management of condition is stabilised. Once stabilised, consult with employee and take in to account any ongoing issues (short notice absence, treatmet and medical interventions). It is advisable for an employer to seek the consent of the employee for communication with medical professionals to advise on further adjustments that would harmonise the employee's condition management and how they may perform their duties to a satisfactory level.
Only when an employer, having exhausted all options of both adjustment to working conditions and working hours, and not reached a mutually acceptable outcome, then look to dismiss the employee due to a medical condition.
As for prior lenience, whilst an employer may claim this was to aid the employee, it is easily countered by the employee that, based on the lenience shown, they have been able to perform at an adequate level when present in relation to colleagues and that to change the approach taken by the employer would discriminate against them due to the previously acknowledged condition. The approaches towards acute and chronic illnesses of employees must be treated completely differently. If an employee is suffering with an illness that, through prescribed treatment, is manageable but incurable, the employer cannot expect the employee to return to a level of fitness before diagnosis. Many chronic illnesses also include treatments that affect the ability of the patient, which also need to be taken in to account.
In the case of the OP, with no specific performance management in place, the employer is taking a huge risk by disciplining an employee for underperforming who, through a medical condition, has reason to be treated in a manner that takes in to account the medical issues and the associated absences, which, presumably, are verifiable by a medical professional if consent has been given by the employee or sought by the employer.
That's useful, the condition is not too dissimilar to Crohn's although possibly more serious. Only when an employer, having exhausted all options of both adjustment to working conditions and working hours, and not reached a mutually acceptable outcome, then look to dismiss the employee due to a medical condition.
As for prior lenience, whilst an employer may claim this was to aid the employee, it is easily countered by the employee that, based on the lenience shown, they have been able to perform at an adequate level when present in relation to colleagues and that to change the approach taken by the employer would discriminate against them due to the previously acknowledged condition. The approaches towards acute and chronic illnesses of employees must be treated completely differently. If an employee is suffering with an illness that, through prescribed treatment, is manageable but incurable, the employer cannot expect the employee to return to a level of fitness before diagnosis. Many chronic illnesses also include treatments that affect the ability of the patient, which also need to be taken in to account.
In the case of the OP, with no specific performance management in place, the employer is taking a huge risk by disciplining an employee for underperforming who, through a medical condition, has reason to be treated in a manner that takes in to account the medical issues and the associated absences, which, presumably, are verifiable by a medical professional if consent has been given by the employee or sought by the employer.
The company sent me (may as well give up the 'friend' hocum now) to a Doctor outside of the company so that they could get an independent evaluation, I have the report from the Doctor that states that "it is reasonable to expect that performance will be affected" and asked if the company would allow flexibility in my quota, he also says "he would benefit from reduced working hours" - the company declined to do this, the report ended with "he strikes me as being an enthusiastic worker and it is genuine that he will be slower than the other workers on occasion". I wanted to cut my working hours by a quarter and they were reluctant to even discuss this, they said they would (grudgingly) allow me to go home an hour early once every couple of weeks or so.
This is only one side to the story, yes, but You could always think of this as a hypothetical situation. I have seen the performance charts for every staff member and despite slowing down I was still well within the top 10 last time I checked.
fergywales said:
Just browsed back at a study of an employee with Crohn's Disease (common chronic illness given as an example, advice can be laterally applied), here is the 'by the book' advice; employee diagnosed with chronic condition, employer is required to adjust working conditions and not discriminate whilst the treatment and management of condition is stabilised. Once stabilised, consult with employee and take in to account any ongoing issues (short notice absence, treatmet and medical interventions). It is advisable for an employer to seek the consent of the employee for communication with medical professionals to advise on further adjustments that would harmonise the employee's condition management and how they may perform their duties to a satisfactory level.
Only when an employer, having exhausted all options of both adjustment to working conditions and working hours, and not reached a mutually acceptable outcome, then look to dismiss the employee due to a medical condition.
Yes, which is a longer way of saying:Only when an employer, having exhausted all options of both adjustment to working conditions and working hours, and not reached a mutually acceptable outcome, then look to dismiss the employee due to a medical condition.
GeraldSmith said:
A chronic illness is a form of disability, but if it means that after all reasonable adjustments the employee is unable to do their job to the required standards the employer can follow a path leading to dismissal.
fergywales said:
As for prior lenience, whilst an employer may claim this was to aid the employee, it is easily countered by the employee that, based on the lenience shown, they have been able to perform at an adequate level when present in relation to colleagues and that to change the approach taken by the employer would discriminate against them due to the previously acknowledged condition.
It can be countered that way but only if it can be shown that they had been able to perform at an adequate level. If there is ongoing sickness and poor performance days then it could be argued that it is clear that the approach has not worked, hence the need to change.fergywales said:
The approaches towards acute and chronic illnesses of employees must be treated completely differently. If an employee is suffering with an illness that, through prescribed treatment, is manageable but incurable, the employer cannot expect the employee to return to a level of fitness before diagnosis. Many chronic illnesses also include treatments that affect the ability of the patient, which also need to be taken in to account. In the case of the OP, with no specific performance management in place, the employer is taking a huge risk by disciplining an employee for underperforming who, through a medical condition, has reason to be treated in a manner that takes in to account the medical issues and the associated absences, which, presumably, are verifiable by a medical professional if consent has been given by the employee or sought by the employer.
Yes but to read some of the comments in this thread you would have thought that the employer was powerless and has to let the employee continue in their job doing the best they can regardless, and that is simply not the case. All of this revolves around 'reasonable adjustments' and 'satisfactory performance' - the company has to make reasonable adjustments and the employee needs to maintain satisfactory performance and what they are is open to interpretation and depend heavily on the circumstances. In this case it would appear that the issues are not so much with performance whilst at work but the number of sickness days.
Given what we know there is no way of being sure whether the employer would have a problem starting disciplinary action, certainly it has difficulties, but it is impossible to reassure the OP on the facts available. The only thing that is for sure is that the employee has a level of protection and the employer has to be very careful to follow procedure correctly if they aren't to face unfair dismissal and discrimination claims in the future.
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