JustCallMeMac Posted October 13, 2014 Share Posted October 13, 2014 Hello, I'm looking for some sound HR advice, if anyone can help please. I employ a Production Supervisor who can no longer do the job required of her, due to a physical inability to do so. She’s been signed off for the past 8 weeks with a back problem, although she’s been having issues, on and off, for the past two years, which we have supported her through. She's therefore been advised that she should no longer partake in physically demanding activity and she intends to take this advice. She is hoping to return in 2 weeks but will not be able to do the job required of her. I can accommodate, in the short term, with a temporary, administrative role, (deskbound), leading up until Christmas. However, from January 1 2015, this temporary role will cease to be a requirement and no vacancies will be available, which will both suit her skill set and accommodate her physical shortcomings. She has been to Citizens Advice and been informed that we must make her redundant, which I do not want to do, because a. it will prove costly and b. I will not be making the role, for which she is currently employed, redundant anyway and this will likely be filled, internally, by the individual who is currently covering. However she is angling for redundancy because she knows, full well, how much she stands to gain financially and that does not sit well with me in this situation. What are my options in this scenario? My employee can no longer carry out the duties for which she is employed and which the role demands and I cannot offer her a more suitable position, (in the long term), to accommodate her physical condition, either because one does not exist, or she does not possess the skills and qualifications to undertake it. It therefore seems unfair that I need to incur the costs of redundancy, when I am not making the actual position redundant and because I am unable to offer alternative employment. Like many of us in business, I’m simply trying to run as tight a ship as possible and I cannot carry those who are suddenly unable to perform the duties expected of them or, indeed, create new positions simply to accommodate them, when they can’t. My sympathies and goodwill can therefore only extend so far. So if I do have to let her go and do not wish to offer redundancy, is there a form of constructive dismissal I can follow? Unfortunately, my own HR Manager is 'sitting on the fence' at this point and being somewhat vague but she has a close relationship with the employee in question so I'm a little wary and want to make sure I’m not being played here. Thanks. Quote Link to comment Share on other sites More sharing options...
John Williams (Panda) - Joint Manchester AO Posted October 13, 2014 Share Posted October 13, 2014 I have a lady called Lisa Gibson from triple three solutions; had to use her a few times but pleased as the hr from FSB was crap. If you pm I'll give you her details. John Quote Link to comment Share on other sites More sharing options...
ACW Posted October 13, 2014 Share Posted October 13, 2014 This is a difficult situation for everyone as you say. If you ask 2 hr people you will get 4 answers and none will be what you want to hear. The devil is in the detail which you probably shouldn't share. However ultimately you would need at a tribunal to demonstrate you had taken reasonable steps to accommodate the problem. Reasonable is a very grey area. As you say redundancy isn't apropriate, would send the wrong message and could still leave you open to problems. Therefore a I would suspect a compromise agreement would be the best way forward. As part of this the employees has to provide the employee with free legal advice assuming it is agreed in principal and therefore this usually works out as a good middle of the road solution. These would normally include non disclose on both sides or a mutually agreed script/reason. Quote Link to comment Share on other sites More sharing options...
Wile E. Coyote Posted October 14, 2014 Share Posted October 14, 2014 Personally I think you should be leaning on your HR Manager and reinforcing the point that you expect her to provide professional advice/support to the company. Insist that she outlines all available options, their pros/cons, and makes a recommendation. Quote Link to comment Share on other sites More sharing options...
Cleggy the Spyder Man Posted October 14, 2014 Share Posted October 14, 2014 Not sure on your size of company but I have always outsourced to a local independent HR specialist So I would get an independent second opinion - at least you will know if your HR advisor is thinking of the best outcome for the employer - given there's never really a winner in these situations 2 Quote Link to comment Share on other sites More sharing options...
pickmaster Andy Lowe Posted October 14, 2014 Share Posted October 14, 2014 There was a high profile case about a fire fighter about 2 years ago in the press that might be worth looking at to see if similar to your issues I think he got pushed out in the end It's a growing problem and not good from either side of the fence Quote Link to comment Share on other sites More sharing options...
alexander72 Posted October 14, 2014 Share Posted October 14, 2014 I would sack your HR manager - thats a role where you cant sit on the fence,you need to understand the law and manage the staff clearly and directly to ensure her expeectations are reasonable. I weouldnt go redundancy but incapacity as in she no longer has the capacity to fulfil that role. Perhaps maker her the HR manager as she will really appreciate your understanding and she understands the production process inside out.... Good Luck :-) Quote Link to comment Share on other sites More sharing options...
Lyonspride Posted October 14, 2014 Share Posted October 14, 2014 HR manager doesn't sound up to the job. What you don't want in a business is cliques, groups of people who become untouchable because of their social associations with each other. Where I work, it's got to the point where only Facebook friends of certain individuals will ever get interviewed for any new positions. Their numbers make up around 1/3rd of the company and nobody dares to say no to them....... There's no reason at all why you can't remove someone due to incapacity, as long as you've shown fairness and been as supportive as possible, then nothing should ever come back at you. Quote Link to comment Share on other sites More sharing options...
s2rrr Posted October 14, 2014 Share Posted October 14, 2014 Lyonspride maybe a bit tongue in cheek but ever so true, hence my decision to increase my leisure time to 100%. Bob Quote Link to comment Share on other sites More sharing options...
jim_l Posted October 14, 2014 Share Posted October 14, 2014 Agree with the above, an individual can be dismissed if they can no longer carry out the job. It would be in your interests to show that you had taken all reasonable steps to accommodate, with work aids or restructuring so that the physically demanding part of the job is done by someone else - it is obviously appreciated that this can be difficult in a small company but you might want to document why that is the case. Professional HR and possibly legal advice strongly recommended, but there are some free resources: A free ACAS helpline, A free government helpline providing occupational health advice for small companies. Google should find both. Perhaps sit down with the employee (and your HR person) and explain why redundancy is not an option, dismissal IS your only option, and see if there is a way to settle this without great legal expense. Your HR person should understand this and that perhaps they are not capable of the job if they cannot understand and advise you correctly on the law here. Quote Link to comment Share on other sites More sharing options...
s2rrr Posted October 14, 2014 Share Posted October 14, 2014 I would amend dismissal to read release under mutually agreed circumstances. That's after exploring possible avenues to cover your industrial/legal requirements all fully documented and with legal advice to have a release contract signed up. In my humble opinion HR should read Anti-Personnel Department they always seem happier when they are releasing people. I think you may have two problem employees but obviously don't want to discuss on open forum. Bob Quote Link to comment Share on other sites More sharing options...
jim_l Posted October 14, 2014 Share Posted October 14, 2014 Worth noting that redundancy is an absolute NO! in the circumstances, you would be breaking the law if you made someone redundant when the post still remains and is filled by someone else. 1) You explore all of the reasonable options to retain the employee, alternative work, part time work, reasonable redistribution (that does not adversely impact other employees) , job aids,etc. 2) If nothing comes from 1) you offer the employee the option to voluntarily terminate the contract. 3) Failing 1) or 2) you terminate the contract, carefully documenting all of the reasons and steps. Quote Link to comment Share on other sites More sharing options...
Paul Hurdsfield - Joint Manchester AO Posted October 14, 2014 Share Posted October 14, 2014 Can't you just get the pair of them run over by a 32ton truck? problem solved, you could call it killing two birds with one stone Hey, have I taken over where StevyD left off? Quote Link to comment Share on other sites More sharing options...
jeff oakley Posted October 14, 2014 Share Posted October 14, 2014 I am not a HR person, however I get involved in a lot of these cases. HR people try to get you to make the decision as then they are never wrong. The first thing is you need a safe practical solution for both parties as I assume she does not want to be out of work, but equally you are not a charity to carry people who cannot do the job. Your other staff need to see fairness otherwise you can have more issues further down the line. Always remember good staff are hard to find so parting company should always be the last resort. If the person has a job, say warehouse work, and lifting is part of it, if they can no longer fulfil that roll then I would follow these simple steps. Look to see if you can acommadate her in a different role (unless you have a role my advice is do not make one even on a temporary basis) If she is likely to reciver light duties is an option. Ask her to see an occupational Doctor. It will cost you but they will assess her medical condition and the role suitability and give a full answer her GP cannot do that. You may find they say with treatment she will be able to do the job, in which case unless you have an agreement to pay lots of sick pay, you can tell her that she can have her job back when fully recovered and her Doctor has given her the all clear, but until such time her only payment will be government SSP. You can take on another person on a temp contract to cover. If the advice is that she cannot ever do the job then you can dismiss under the grounds of capability, in the same way a driver losses his licence, they can no longer do the job. You would need to pay notice but it is straight forward so long as you follow the Acas advise. Never have meetings alone, always offer her the support of a colleague whilst taking notes. If the reason for her inability is down to bad conditions training etc then tread carefully. This is a very complicated situation and you must take care to make sure you know the outcome you need for both parties. These are just bullet points and you can ask ACAS to give advice to you where they will have full facts we do not. If your H&R is not very good, I do know some who are not so wishy washy. Quote Link to comment Share on other sites More sharing options...
JustCallMeMac Posted October 14, 2014 Author Share Posted October 14, 2014 Can I take the opportunity to thank each and every one of you personally for your extremely constructive and helpful replies, which have gone a long way to reaffirming my own point of view, with regards the options available to me. I will take them all under advisement! This forum never ceases to amaze me and as many have said in the past, the membership fee is repaid many, many times over, however that may be. I employ over 60 staff and have been doing things long enough to know what's probably morally, ethically and professionally 'right' however it's such a minefield out there and ever changing, that one wrong turn, even one made without any malice, can end in tears and a costly outcome. The 'no-win no fee' culture has a lot to answer for but that's another topic entirely! Thanks again all! Steve Quote Link to comment Share on other sites More sharing options...
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