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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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There, I'm physically disabled and I've hired a carer

Resolved Question:

Hi there,
I'm physically disabled and I've hired a carer to help me with personal tasks for about 13 months now. She won't admit to it but she is without a doubt anorexic and it's affecting her job performance. Last monday she arrived for work and promptly announced that she hadn't eaten since lunch time on friday. Needless to say, she couldn't focus and was lethargic all day. The job requires a certain amount of physical and mental stamina that no one is going to have if they don't take care of themselves. If a carer doesn't care for themselves, she can't do her job.
My question is, if she comes in again and declares she hasn't eaten for 3 days, can I send her home with a warning as she is unfit for work? It's doubtful that she can claim her anorexia as disability since that would require her admitting she has a problem.
It's a sticky problem I'm aware, so if you could avoid that JustAnswer Law tone of "you can't just get rid of someone because they skip breakfast" I'd be really grateful. Ultimately she's going to have to go, the anorexia coupled with several of her other issues is slowing me down and making it hard for me to get the care I need.
Thanks,
AS
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
Hello my name is ***** ***** I am happy to help you today.
The sticky issue is, as you have already identified, that she might be deemed to be disabled for employment law purposes.
If this was not a possibility with 13 months service you can simply dismiss someone for any reason, this can include not having breakfast!
If you do not think she will claim on disability grounds then this might be a risk you are prepared to take.
However, if she does claim then you will have a problem because she is being dismissed because of her disability.
Perhaps a different approach might be to have a chat and say that you are concerned for her health and safety and that you do not want her to work if she has not eaten?
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

Oh I've expressed concern... Like many other anorexics out there she says there isn't a problem. (I'm not poking fun please understand. My sister was anorexic and now councils young women with the illness. My family knows very well the tricks your mind plays on you when you're in that state. Very often if you express 'concern' you'll just get more denial.)

My question is not, can I dismiss her on the spot but can I send her home for that day if she shows up in that condition. I'd still pay her for the day, but it'd be a warning. I'm wondering if there's some action with a bit more 'omph' behind it she might have cause to pause. (I'm also aware from the personal point of view it might just result in her not telling me when she hasn't eaten not a productive change.)

I'm a bit confused on one issue however and was wondering if you'd clarify. You said: "With 13 months service you can simply dismiss someone for any reason, this can include not having breakfast!"

This can't be right surly? Don't you have to give notice, written warnings, etc? Don't you have to have a 'good' reason.

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Expert:  taratill replied 2 years ago.
If someone has less than 13 months service then you can dismiss them without warning. They cannot claim unfair dismissal. You would have to pay notice and pay in lieu of holiday.
You can send her home as you have suggested with pay. I would suggest you say that you are doing this on health and safety grounds.
Customer: replied 2 years ago.

Last question.

My records say she started on 14 july last year according to HMRC. I seem to remember paying her with cash before that for a few weeks before as a trial period. No tax was claimed and nothing official was filed. Would this cash only period count towards the 13 months.

you've been really helpful. Thanks.

Expert:  taratill replied 2 years ago.
Yes it would count.
As long as it was just a few weeks then no problem. It would only be a problem if she had worked for you for longer than 2 years in total.
Customer: replied 2 years ago.

Wait so, is the cut off for dismissal without warning 13 months or two years?

Expert:  taratill replied 2 years ago.
2 years. You have to have 2 years service to claim unfair dismissal so so long as you pay notice and you are not discriminating against them there is no claim that can be brought.
Customer: replied 2 years ago.

Finally! Something that works in the employee's favour!

And just to confirm, notice is six weeks yes?

Expert:  taratill replied 2 years ago.
that depends on your agreement with them. If you have a contract it is the amount that is stated in the contract.
If there is no contract it is statutory notice of a week per year of service. In the case of an employee with over 12 months service I would suggest you pay 2 weeks.
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