Can I fire employee when doctor’s diagnosed stress?

An employee’s performance has been poor and,following a meeting, she has been given a month to turn it around. During this period she has brought in a note from her doctor saying she’s suffering from stress. Her performancehasn’t improved and we’d like to let her go, but I’m worried about falling foul of the law. How should we proceed?

A. James Knight writes:

If the employee has been with you for less than a year, she should have no right to claim unfair dismissal. But follow the correct procedure so she can’t claim discrimination. If she has been continuously employed for over a year, it’s more complex.

Look at her contract and stick to any procedures that you have in place. If you have no written disciplinary procedure, follow the ACAS code. After April 2009, an unreasonable failure by an employer to follow this will result in a tribunal having the power to increase any award by up to 25%, so it’s worth thinking ahead.

If the employee is off sick and unable to make the next meeting, offer to reschedule it. If she takes time off, keep up to date with her condition. If she’s absent for a while, ask your manager to check if there are any underlying causes behind her poor performance, such as personality issues or unreasonable demands. When she returns, give her some time to improve her work, as the stress may have been affecting her previously.

If the sickness continues, her contract may state she should give consent for you to obtain a report from her GP. Seek the GP’s opinion as to whether she is fit to work. If she isn’t, find out what treatment is needed and how long she may take to recover.

You can make your employee an offer to leave at any stage, and it’s best to formalise this in a compromise agreement. This is a legally binding document in which employees accept a severance package in return for waiving any claims for compensation against the former employer. The employee needs to be properly advised by a solicitor and the costs of this advice are normally met by the employer subject to a maximum of about £500.

James Knight is the founder and managing director of Keystone Law, a full-service law firm that advises small and medium-sized companies across the UK.



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