Case Study Three – A Complex Long-Term Absence Case
In October 2010 a retained client requested our help with an employee’s long-term absence which they felt had become unmanageable due to the employee’s failure to communicate with them. We later discovered that the employee’s failure to communicate was due to serious mental ill-health.
Our client provides elderly residential and nursing care to over 175 residents across five care homes and one nursing home throughout the West Midlands area. They employ in excess of 220 employees.
Prior to our involvement the employee had been absent for two months with depression. Our client had already sent a few letters to the employee, the tone of which we considered could have been perceived as ‘heavy handed’. There had been some performance concerns prior to the employee’s absence.
We initially reviewed the case and advised our client to manage the absence, not the performance issues. We drafted a ‘warm’ letter for our client to send to the employee, requesting a long-term absence meeting. The employee failed to respond and so we drafted a second, more formal letter. Our client then received a curt response from the employee’s father which explained the extent of the employee’s serious illness.
It is not usual practice to liaise with a relative. The employment contract is between the employer and the employee. However due to the nature and seriousness of the employee’s ill health and as a “reasonable adjustment”, we liaised indirectly with the employee, via her father, on behalf of our client. We were able to act as an intermediary, in order to progress with what had become a difficult and complex situation to manage. As a further ‘adjustment’ we advised our client to ‘step back’ for a period of time, in order to provide the employee with ‘space’ to aid her recovery.
We were not able to progress as we would in any normal long-term absence, with an occupational health assessment; however, in February 2011, after initial refusal and as a compromise, we received the employee’s consent to allow an occupational health advisor to obtain a GP report from her GP. In April 2012 we subsequently received the first occupational health report which confirmed the seriousness of the case and which advised our client to ‘stand back’ for a further 6 weeks.
By May 2011, the employee’s health was beginning to recover to the extent that she was now able to participate in an occupational health telephone assessment and in July 2011 we were able to hold our first long-term absence meeting. During this meeting the employee raised a number of concerns which she alleged had existed within the workplace prior to her absence. It was agreed that these concerns would be investigated however the investigation found no basis for the allegations and it was concluded that the employee may have been unwell at this time and this in turn may have impacted upon the employee’s perception.
Unfortunately, thereafter, a number of alleged incidents were reported to our client, from another employee which related to inappropriate phone calls and an altercation outside of work. Despite the employee’s ongoing long-term absence, it was necessary to investigate these allegations in order to establish if the allegations related to poor conduct or capability i.e. a manifestation of the ongoing ill-health. A meeting in two parts was then scheduled, firstly to investigate the allegations and secondly to discuss the employee’s ongoing ill-health and absence from work.
In December 2011, following the above meetings, we decided, on the balance of probability, that the reported allegations were more likely to be a result of the employee’s mental ill-health and therefore not conduct related. We also recognised, further to receipt of occupational health reports that the employee’s health was not going to improve enough for her to be able to provide care to vulnerable elderly residents. We therefore terminated the employee’s contract of employment on the grounds of capability.
04/10/10 – Employee’s long-term absence begins.22/11/10 – We start to support our client and long-term absence meeting requested.14/12/10 – As an adjustment and on behalf of our client, we began to communicate indirectly with the employee, via her father.07/02/11 – We obtained consent for an occupational health advisor to obtain a GP report.20/06/11 – The employee is able to participate in an occupational health telephone assessment.20/07/11 – Our first long-term absence meeting is held with the employee. The employee raises some concerns which require investigation.30/08/11 – We communicate our findings to the employee.09/10/11 – We receive complaints from employees about alleged inappropriate phone calls and an alleged altercation outside work.05/12/11 – A further long-term absence meeting and investigative meeting is held with the employee06/12/11 – A dismissal letter is sent to the employee on the grounds of incapability.
This case was extremely complex and difficult to manage due to the employee’s serious mental ill-health. We fully supported our client in managing this case, liaised with the employee’s father, occupational health, attended all meetings and produced all associated documentation (letters, investigatory notes etc). Without our involvement, advice and guidance, our client could easily have fallen foul of a disability discrimination and unfair dismissal claim however with our support and guidance, they managed what was a very complex case, in a patient, caring and reasonable way.