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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44941
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have employed a lady for 13 yrs and she has been off sick

Customer Question

I have employed a lady for 13 yrs and she has been off sick for the last 8 weeks with SSP. She has now informed me that she is fit to return full time to work. I personally disagree with this as she looks nothing like she used to do due to great amounts of medication. Before she went off sick she had neglected most of her working duties due to being unwell. This caused our business to suffer a great deal as we serve the public. Since we have had chats regarding her coming back to work she mentioned "why don't you make me redundant then"? Is this possible and how do we go about this?
Thank you
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. is that a root you wont to pursue

JACUSTOMER-6h9ar1ee- :

it would be better for us if we could make her redundant. We feel she doesn't really want to work here but is coming back to work for the money only!

Ben Jones :

OK thank you, please leave it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

JACUSTOMER-6h9ar1ee- :

Hello Ben, Are you there?

Ben Jones :

HI yes but I have to go out soon

JACUSTOMER-6h9ar1ee- :

Oh ok, can I close this down and leave you to email me [email protected]

JACUSTOMER-6h9ar1ee- :

thanks

Ben Jones :

yes no problem I will get back sometime after 4 pm thank you

Ben Jones :

Many thanks for your patience. This is not a redundancy situation so she cannot expect to be made redundant. A redundancy exists if you are either closing a business down or no longer require as many employees to do a specific job. If the job and the need for employees to do it is still there and has not reduced, then there would be no redundancy so you cannot make her redundant.

Before you consider dismissing an employee, especially when they have long service and are protected against unfair dismissal, you must ensure that you have a fair reason for doing so and also follow a fair procedure. Whilst the employee may have declared herself fit to return to work, if that is clearly not the case you can ask for further medical evidence to support her claim and to show that she is able to come back and work for you. Additionally, you could consider sending her to an independent occupational health specialist to assess her condition and the likelihood of her returning any time soon.

If she has a long term condition that affects her daily duties she may also be classified as disabled under disability laws and you have further duties, such as making reasonable adjustments. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

If you have made reasonable adjustments and they have not helped, or you simply cannot make any and she cannot do her job, then you can consider dismissing her on grounds of capability, although you need to follow a fair procedure and it may take some time.

The final possibility is to mutually agree an exit, where you pay her off to leave and she leaves voluntarily and agrees not to claim against you in the future. This is done by signing a settlement agreement but it needs to be agreed on by a solicitor so it may cost you a few hundred pounds to get one ready but once that is agreed you know that it is a clean break and there is nothing she can do to sue you in the future in relation to your employment.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

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