Consultation with absent/sick employee

Hi

We’re a small charity with 3 full time staff, one of whom has been off sick with depression and stress for several months. As a result of funding cuts, and after looking at all kinds of other cost savings and new ways to generate income, we decided we probably need to lose a post and that we should start a consultation with the sick employee when she returned to work. Her post has aspects which could completely disappear and some which could be handled by the remaining 2 staff. The post was chosen because it is the least skilled – ending either of the other two posts would result in the charity shutting down. She did return to work recently and after a few days and checking in with her about how well she was, I asked her to a first consultation meeting. She then immediately went off sick again and has been signed off for 2 weeks (and I suspect longer thereafter). I realise that it is difficult, if not impossible to consult with someone who is not there – do we just have to wait for her to be well enough to come back? If she is depressed and stressed, can she fairly be deemed able to consult (by telephone, for example)? We can’t end the post without a redundancy process but neither can we afford to keep it going indefinitely.

Many thanks,
Paul

Oh - my - God. You are flirting with a disability discrimination complaint that will wipe you out! Even if you won! And if you are so small - I bet you have no insurance in place either?

I utterly understand what you tried to do, but you have done about the worst thing that you could have done. You were trying to be kind by not raising a possible redundancy when she was off sick - when in fact what you should have done was either (a) raise it as soon as there was due cause (and I will come back to that) or (b) start capability processes on the basis that you could not sustain the lengthy sickness absence. I know - it's horrible doing that sort of thing - but it was the right thing to do.

As it stands you waited until she came back based on aspects of her post that could (your words - not have disappeared, but could) having already, without any due process, decided that she was the least skilled person. Look at your own words again - and whilst I totally do get why you did it - it screams "person off sick a long time, we want rid". And it may scream that at a tribunal too. But like I said, win or loose - do you actually have the spare money lying around for the legal costs - possibly, on a discrimination claim, in excess of £20 - 30k??? Conceivably, a lot more?

And if there was a potential redundancy situation with good reason - it existed whether or not she was off sick. You needed to go ahead with consultation anyway. I know - you didn't because it was cruel. It was also the wrong thing to do.

And that is the extent of the advice that I can give you on line - you must get legal advice and you must get it now. If you are a member of your local CVS or voluntary action council - there is s starting point. They may be able to point you towards legal advice which is free or not too costly. But please do not delay for a minute. Even if she had no prior history of depression (and oh, I bet she did - that sort of sick leave seldom comes out of nowhere), her diagnosis is now probably "a condition which effects, or will effect, normal day to day living, for 12 months or more" - disability. And if she had a history, she was covered a long time ago. Please, please, please do not ignore this in the hope it will go away. It won't.

And please tell me that you are a limited company and not charity trustees?????

I can tell you the risks and dangers - but I will not give you legal advice because I can't on line, and that is what you need. And do utterly nothing more, and say nothing more to her until you have legal representation. And I mean nothing!