Welcome to the bi-monthly column in which experts from IBB solicitors answer legal questions submitted by you.
Answered by Richard Devall, partner
Q I had a meeting with an employee about performance. He has now gone off sick and may exhaust three months sick pay but I’ll still have to deal with the performance issues. What do I do?
This is not an uncommon scenario.
The performance management process will have to be placed on hold pending the employee’s return to work (subject to the below). When writing to the employee to set out the sickness procedure, I would include a short note that any procedures the employee is subject to will be resumed on their return to work.
I would take stock before assuming that the employee has gone on sick leave to avoid taking part in the performance management process. While disciplinary action can be taken in such a scenario, there has to be evidence of the employee’s dishonesty before any disciplinary steps are taken.
If you have any doubt about the legitimacy of the illness, or if you feel that the discussion on performance has contributed to it, a sensible step would be to arrange an occupational health (OH) assessment. This can address when the employee is likely to return to work and on what basis. When referring an employee to OH, always remember to ask tailored and thorough questions specific to the employee in questions’ scenario. If necessary, review or amend the performance plan in light of occupational health advice, particularly if OH suggests the employee’s sickness may constitute a disability.
Subject to any clear capability or disciplinary grounds to address the situation, I am afraid the most sensible solution is to wait until the employee’s return before addressing performance.
To avoid this situation going forward it is helpful to introduce a clause into your sick pay policy that sets out that only statutory sick pay, and not enhanced sick pay, will be provided when an employee is on sick leave while subject to a disciplinary or performance process. You will have to be mindful of disabled employees (and the obligation to make reasonable adjustments) when applying this policy, but it does help to prevent illegitimate cases of sick leave.