Advice needed for PT employee off sick since April

Thriftkitten

Hi I am trying to find some help and advice for my mum who is beside herself with worry.
We own a small family run business in our town that my gran started some 40 yrs ago, my mum took over the business and my nan only works at the weekends. Even though this shop is tiny, business is booming with it being near on impossible to cope with just one person in the summer months.
In Dec 2012 my mum took on a lady we knew who wanted to do PT 16 hrs per week as she has a child and alone. She has been a great employee except she is quite a sickly lady who has had to have investigative tests and treatment and also a spell of a month or so in hospital with little in the way of a successful diagnosis and has now been off sick since the beginning of April. My mum is very fond of this lady and they have a very good rapport, However, my mother is unsure of what she needs to be doing regarding encouraging or helping this lady back to work. It is killing her working in the shop all through these summer months because she has back problems herself.
She cannot manage alone, but is not sure that she can employ another member of staff temporarily just for the summer when she already has this lady on statutory sick pay, although the government pays that for her.
I did read somewhere that the lady must start to produce a "Fit" certificate as she keeps reassuring my mum that she will return to work, but she just dosen't know when, She is currently being weaned off Morphine, fentinol and attending a pain clinic weekly.
We cannot seem to get a diagnosis and never have really as I'm unsure if she even knows. My mum unfortunately has been guilty of being to friendly and checking on her to see if she needs anything, however, she text her tonight with advice from her accountant to say that she should go ahead and issue her a P45 because there is no date in sight for return, merely more promises each week that it wont be too much longer.
Please could anyone offer any advice, the lady was none too happy stating that my mum could not issue her with a P45 even though she agreed to rehire her after the summer if she was fit, it's starting to get nasty but masked by pleasantries at the end of the sentence.
I thought I would post here because I was worried about the accountant being too premature and the lady having a case for unfair dismissal.
Any advice greatly appreciated.:(

AbbieCadabra

Very tough situation for a small business & i can only suggest perhaps contacting acas or advice from an employment specialist before any action is taken. This sounds like it could fall within capability or disability discrimination (probably not used the right terminology there, but i'm just trying to say not a straight forward dismissal).

Btw claiming ssp back ended this April, even before then you had to meet a certain criteria before you could claim anything back. Might be worth checking this again with her accountant.

Seanymph

Your mum can phone ACAS and ask them.

http://www.acas.org.uk/?articleid=1410

Thriftkitten

I don't understand what the lady is loosing really, she cannot give a return date or approximation and she knows that my mum thinks the world of her as an employee and will glady re employ her after the summer months, but my mother needs help and the employee cannot offer this and dosen't know when she will be able to, if she is receiving sick benefit from the state surely she would continue to get this anyway, she dosen't receive anything from my mother, other than I'm guessing her entitlement to holiday.

Savvy_Sue

Acas would be the bare minimum, although as this lady has been employed for less than two years she has very limited employment rights and it's not likely to be possible to sue for unfair dismissal.

The difficulty is that your Mum should still do this 'properly' and IMO sending text messages isn't the right way to deal formally with employment matters. If the accountant offers a full HR service, then I'd let them deal with it. If their advice is along the lines of "this is unsustainable, you're paying out for her SSP and seeing no benefit to the business" without offering guidance on how to do this, then following proper advice is the way to go.

As for promising to re-hire, that was probably not such a great idea - who decides whether the employee is fit or not? What if she comes back but then goes off sick again? Does that mean your mum will only go for a temp appointment over the summer? And what if this lady still isn't fit? Maybe the temp wants to stay, maybe they don't ...

The advice to the member of staff would generally be 'sit tight and wait to be dismissed because you are accruing paid leave even while you're off sick', so again, you mum needs to be clear about what would be owed if she does terminate the contract, but from your mum's point of view it would be better to dismiss sooner rather than later.

Savvy_Sue

BTW, I was looking at a big fat book of 'standard employment letters' which DH has, it's a couple of years out of date, but a quick skim seemed to indicate that you'd invite the employee to a meeting to discuss the likelihood of their being able to return to work, you might request medical reports or send them to see an Occupational Health service (which the employer would pay for), you consider what's said at the meeting and any medical reports, then you invite to a second meeting to say "sorry but it doesn't look as if you'll be back at work any time soon, will have to dismiss" and only then do you dismiss. You would definitely want to follow such a procedure if the employee's been with you more than two years.

You don't do ANY of this by text message. You MIGHT make phone calls, but you make a written record afterwards and put that in a letter: "just to confirm what we discussed just now, you've agreed that we can get a medical report on your back problem, and we'll then meet to discuss the outcome."

Savvy_Sue

As this is a duplicate of one on the Employment board, I'll ask the forum team to merge (see the Forum Rules). You've got good advice in both places.

Thriftkitten

Many thanks Savvy and other members, she is going to receive a call back today fro FSB so hope things are a little clearer for her x

gingerdad

I'd suggest you speak to an expert in all things employment. We had a similar situation last year and went down the route of dismissal on the grounds of being unfit to work. Can't totally remember the legal ins and outs as the person resigned on receipt of the first letter inviting her to a meeting.

AbbieCadabra

Thriftkitten wrote: »

Many thanks Savvy and other members, she is going to receive a call back today fro FSB so hope things are a little clearer for her x

any update on what the FSB advised? (just the general info, no fine details)