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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48204
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I'm looking for an informed opinion on an employment issue please
My wife and I employ a nanny to look after our two young children. The employment commenced in October 2015 and has largely been very satisfactory - there is no doubting the ability of the incumbent to fulfill the caring aspects of the role.
The issue comes in that it has become apparent that the applicant has long term health issues which were not disclosed prior to employment. We do believe that the full nature of the medical issue was unknown at the time of employment and has only been full diagnosed during this employment. We do not believe that the series of underlying poor health was entirely unknown however.
This issue has now started to cause a reasonably significant amount of sickness leave at very short notice - short notice as in 6 am on the morning of absence, providing no chance of arranging other care arrangements. Time off is currently running at 4 days in the last 20 in two sets of two days, plus sundry other time off for medical assessments and any number of false alarms - which I appreciate are not applicable but does build a feeling of untrustworthiness). There is very little doubt she has been poorly, but it is a treatable condition.
As we run a small consultancy company, if my wife and I are unable to work, due to having to cover this childcare, we simply don't get paid and the reputation of the Company is damaged with our clients. This is already starting to be an issue.
Normally we would seek to discuss with her and ask how she planned to resolve the medical situation such that she would be able to reliably discharge her duties. However the nanny has subsequently fallen pregnant as a result of which she does not wish to undergo treatment.
What I would like to know therefore is as the employer, what are our Rights in relation to asking her to resolve the medical issue as it is NOT related to the pregnancy, but clearly will be exacerbated as the pregnancy progresses?
The unfortunate truth is that if we cannot rely on her to conduct the job reliably and we have no mechanism of resolving the issue because of the pregnancy, then we feel our only option may be for one of us to quit our family firm to provide childcare and make the role redundant. This subsequent drop in income would be a hammer blow to us and (sorry to be overly dramatic) quite possibly lead to us needing to Sell our house, which feels incredibly harsh as we've tried to do the right thing.
What can we do/ say to her with the bounds of the law to resolve the situation until such time as she goes on mat leave? Our feeling is almost certainly the number and duration of these instances will only increase as the pregnancy progresses and this is causing my wife in particular huge stress
Many thanks
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. I presume there is no way around these issues at present?
Customer: replied 1 year ago.
Hi Ben, thanks for your assistance. The nanny has several medical issues, in what severity we don't know, but the particular issue at the moment causing the sickness leave is gallstones. Apparently the doctor has confirmed these will NOT pass naturally until they break up.The [medical] resolution is a small procedure, the details (invasive-ness) of which i do not know, but as the nanny has an allergy to local anaesthetic would have to be done under general. At this stage She has indicated neither a willingness or a lack of willingness to undergo this, but I believe that on a human level it is not unreasonable that she would be reticent to go under general to remove the issue whilst pregnant. I think if she DID take this option, it would alleviate the concerns for now, but I would suspec further complications downstream.Many thanks
Rob
Expert:  Ben Jones replied 1 year ago.
Thank you. The main issue here is if her medical conditions can amount to a disability because then she will have certain protection in law. It means that you must not treat her detrimentally as a result of her disability and also must make reasonable adjustments to try and help her. Dismissing her simply for having a disability without having attempted reasonable adjustments is likely to be discriminatory and land you in hot water legally. So the first thing is to try and determine if her conditions can amount to a disability. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’. The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. I will break this definition down:Physical or mental impairment – this can include nearly any medical condition;Substantial effect – the effect must be more than minor or trivial;Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.) If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees. If the conditions do not amount to a disability then you could consider dismissal for unreasonable length of absences and reliability issues. She has less than 2 years’ service so is not protected against unfair dismissal and you can dismiss her for more or less any reason as long as it is not discriminatory in nature. If she has no disability then there is no discrimination. However, the issue then is the pregnancy as she could try and argue that the real reason was the pregnancy instead. This could be defended if you can confidently show that the issues are purely related to the absences which are not in any way linked to pregnancy. This is your basic legal position. I have more detailed advice for you in terms of the possible ways to take this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Thanks Ben,
That's very useful. I don't quite know how one would go about assessing from a legal perspective the physical impairment in terms of disability or not. Certainly, the fact she has ended up being admitted to hospital overnight would point in one direction, whilst the fact she is back to work the next day suggest it's not a [long term] disablement. In lay terms it feels more to me like a standard "unable to work due to sickness" such as you might get with flu or similar.I guess my major concern is that as time rolls on, the pregnancy will exacerbate the issue, so whilst it may not be disability now; it could well develop into one as a result of the gestation, which has the "nice" duality of being clearly not pregnancy related, but at the same time, related to the pregnancy . :(Ideally, we would not like to dismiss her now - although it is hard to see that the situation is going to get better and there is some merit to cutting losses if able - but "put a shot across her bows" to ingrain an understanding that we are not a large enterprise who can re-direct alternate staff if she is off ill and that by being off, she's kind of killing the source of her income as well.Are we legally on solid ground to ask her to explain how she intends to manage the condition such that she can discharge her duties effectively, or does the pregnancy blur that line to an extent that this would be ill advised?
Very grateful for any further advice you may have on managing the situation within the law.
many thanks
Rob
Expert:  Ben Jones replied 1 year ago.
Hi Rob There is no easy way to establish if someone has a disability in law or not. Essentially it is a matter of gathering medical evidence and seeing if it satisfies the legal criteria mentioned earlier. But yes, as you mentioned it could well be that it is not a disability yet but as time goes by it could get worse, making it one. So if you were to dismiss now you could be in a better position legally, as long as you are not making your decision based on her pregnancy. Also bear in mind that even if you had been in the wrong, there is no guarantee that she will take the matter further. She only has 3 months from dismissal to make a claim and if there is a lot going on in her life at the time it could easily pass her but without her realising, meaning she would legally be barred from claiming. So you could still get away without having any liability. If you wanted to be certain in your position you could agree a settlement agreement with her, which is a formal agreement where you pay her off to leave and in return she promises not to make any claims against you, so it is a clean break and you both know you will not have any claims against each other and everyone is happy. You could approach her to try and negotiate that but she cannot be forced to accept it. Finally, you could try a redundancy route – if your wife is willing to look after the child because the nanny is not able to do so as expected, her job may become redundant and you have the right to terminate her contract for that reason and would not have to pay any redundancy as she does not have 2 years service. So there are options, not one is right or wrong, but it is which is best suited to you.
Customer: replied 1 year ago.
Good Morning Ben,
Apologies for coming back to you once more, but it would seem the plot thickens. Despite having returned to work yesterday (conveniently just before SSP kicks in) the nanny called my wife yesterday afternoon saying she was in too much pain to work and could we return home.My wife was able to return home with the goodwill of her employer and I have been forced to take a day off today - much to the obvious annoyance of my employers. As we are contractors, we don't work - we don't get paid, so this is now costing us a lot of money.This then prompts some further questions that I'd be extremely grateful for your continued guidance on.
a) The nanny is currently employed through my company, rather than by us as a family directly. If she were made redundant by the COMPANY, I assume we would be on very dodgy ground if we then re-employed someone else directly as a family in the same capacity? Assuming that is correct, what (if any) time limits apply before the role can be re-hired in any context?
b) When my wife arrived home last night, it was apparent to her that the nanny was incapable of focussing on the children - does the fact the role deals with children and she is unable to effectively manage them come into play at all?
c) The contract my wife is working on is coming to an end in three weeks. If this continues (and it seems inevitable it will) in what is a totally untenable situation, my wife feels the only option is to not take on the next contract and take on childcare herself. Are we absolutely cast iron that this would be a valid reason for making the role redundant? If so, given there is only three of us in the company and there is only one role of her type, do I need to go down a consultancy before redundant route, or can we 'simply' make the role redundant and metaphorically tell her to go home there and then? Or is there a minimum time frame over which we must give notice?
d) Our far preferred option would be to sit with her and tell her that the role is critical and simply cannot be left uncovered given it is for the care of minors. We would like to effectively ask her if SHE feels she is fit to continue discharging her duties and - if law were not a bar to it - we would basically ask her to do the decent thing and resign if she cannot meet the requirements of the role. [At this point we would grudgingly enter into a settlement agreement - is there any guidance you can offer on what would be "reasonable"]. Without prejudicing ourselves in the eyes of the law, can this be done to any degree, or do we literally have to dismiss/make role redundant or put up/shut up?As ever, many thanks. We're just finding this whole situation a total nightmare as we don't seem to have any route out that doesn't cost us significant outlay for something which is not our doing in any shape or form
Kind regards
Rob
Expert:  Ben Jones replied 1 year ago.
Hi Rob, considering the advice given so far and the extent of further questions you would have to post them as a new query for my attention please as I can only answer a couple of follow up questions, which I have done (sadly it is not unlimited follow up support). Then I can continue assisting. Many thanks