How long can you be off sick before you can be laid off?

usignuolo

I work for a small business in a small team. One member of our team has now been off sick for over six months. She has an undiagnosed condition and the GP keeps signing her off as unable to work although she does not yet have a diagnosis.

This is causing a strain on the rest of the team because the firm has so far been unable to pay a stand in because it is still paying her salary to the sick colleague and we are having to pick up her workload. I asked the HR manager about this and he said all the time she is signed off as sick by a doctor there is nothing they can do.

Is this correct? What is the legal position regarding job security for someone who is on long term sick leave, authorised by their GP but with no official diagnosis?.

getmore4less

Why are they paying her?

should be SSP and that runs out atfter 28weeks

fix that problem so they can get someone else.

Still leaves the problem they are accruing holidays which will need to be paid at some point

Andy_L

Depends on the contract. Assuming that says nothing then statutory sick pay is available for 28 weeks, anything beyond that is at the discretion of the employer.

If the illness isn't a declared condition under the Disability Discrimination Act then they can be fired on capability grounds quite easily

usignuolo

Problem seems to be that as there is no diagnosis, the GP has not acknowledged it is long term sick but keeps signing her off for a month on a month by month basis, so it seems the expectation is she will return the following month, only she never does. Actually is it coming up to 28 weeks, I worked it out, at the end of the month. Can I ask for her to put put onto SSP at that point?

tomtontom

I'm wondering what position you hold in the company, to think that you can ask they lower your colleague's sick pay? That would be a management decision, and would depend on what the colleague's contract says.

Andy L, the relevant law is now contained in the Equality Act, and a condition does not need to be 'declared' in order for the individual to be protected. It is still possible to dismiss someone who is classed as disabled, the employer just needs to be certain they have followed procedure/ considered reasonable adjustments.

getmore4less

usignuolo wrote: »

Problem seems to be that as there is no diagnosis, the GP has not acknowledged it is long term sick but keeps signing her off for a month on a month by month basis, so it seems the expectation is she will return the following month, only she never does. Actually is it coming up to 28 weeks, I worked it out, at the end of the month. Can I ask for her to put put onto SSP at that point?

Why are they paying her thats the issue

SSP is 28 weeks from day 4

If the contract have contractual sick pay it should include SSP and be discretionary anyway so it can be stopped at any time.

tomtontom

getmore4less wrote: »

Why are they paying her thats the issue

SSP is 28 weeks from day 4

If the contract have contractual sick pay it should include SSP and be discretionary anyway so it can be stopped at any time.

If the right to OSP is contractual it is not discretionary.

lisyloo

If the contract have contractual sick pay it should include SSP and be discretionary anyway so it can be stopped at any time.

Not sure what you mean by "should" but if it's in the contract then the employee is entitled to it.

I can understand why a fellow colleague picking up the workload would be frustrated, but if someone is ill then surely we should assume in the first instance that it's genuine and they are deserving of sympathy.

If the colleagues are having trouble picking up the workload then perhaps the employer needs to look at other options like agency staff.
Surely they should have thought about this - it's not like illness is an unforeseeable HR issue.
They CAN do something about it. They could get agency staff in on a monthly, weekly or even daily basis if they wanted to.
The truth is they don't want to pay to do anything about it.

I think it's pretty sad if your colleagues turn against you when you're ill.
I've worked with people who've had cancer and the employer and colleagues have all been as sympathtic and helpful as they could - not said - you "shouldn't" have this. you "shouldn't have that.
Just because it's undiagnosed doesn't mean it's not genuine.

bargainbetty

If you are her manager, you can speak to HR about arranging for a temporary replacement. If you own the business, you can put her on SSP after her fourth day of absence and use the funds elsewhere.

If you are her co-worker, you can mention to your manager that you really need cover for her, and that if something isn't done soon the rest of the team will end up sick through over-work. Then you should walk away as her financial arrangements are none of your business.

Undervalued

getmore4less wrote: »

Why are they paying her thats the issue

SSP is 28 weeks from day 4

If the contract have contractual sick pay it should include SSP and be discretionary anyway so it can be stopped at any time.

Not always!

Although it is becoming more and more common for company sick pay to be "discretionary" it is not always the case by any means.

It is perfectly possible that she has a contractual entitlement to sick pay for a certain period. If so, provided she complies with the terms they must pay.

My last employer paid full pay for six months then half pay for a further six months for long standing employers and that was not "discretionary".

Although the company could, theoretically, still consider a capability dismissal during this period there would be no saving. At a minimum, the full sick pay entitlement would have to be paid. Providing it was and depending on the other circumstances such a dismissal may be fair (in law).

Takeaway_Addict

Andy_L wrote: »

Depends on the contract. Assuming that says nothing then statutory sick pay is available for 28 weeks, anything beyond that is at the discretion of the employer.

If the illness isn't a declared condition under the Disability Discrimination Act then they can be fired on capability grounds quite easily

Equality Act 2010 now and you would still have to go through capability route if the employee has protection of working there over 2 years regardless

The OP's HR needs to see what the contract says, if it is contractual sick pay then the employer is doing teh right thing, if it is not contractual then the HR probably don't have a clue or have been played by the employee.

Really OP, the only thing you can do as a group is to act together and show your displeasure about the situation. Other than that its a suck it up situation.