We have both written to and left telephone messages for this staff member to invite them to discuss their situation with us but these have all been ignored, other than the staff member stating that they do not want to meet until they are fit to return to work. We are now in a situation where the project that they work for will need to be restructured due to budget cuts. We have invited this staff member to be involved and are waiting for a reply. I have 2 queries; 1) if the sickness continues beyond the current 3 months is there recourse to move to a disciplinary (under medical incapability to do the role) as long as we can show that we have been trying to discuss this with them and 2) are we correct in our premise that as long as we have made all attempts to involve this staff member in the restructure discussions and keep them informed, we would be reasonable to continue with the restructure at this time.

 Question raised by Forum Member in December 2013

4 Replies by Members were received as follows:-

1.  My advice would be to look at specifically what the employee is signed off sick with, do they have occupational health or ESA in place to support employees’. It may well be worth considering offer some independent support to the employee such Psychotherapy or CBT Cognitive Behavioural Therapy.  The issue around re-organisation and ill health/ sickness needs to be looked at separately and employment legal advice is necessary here not knowing what may be in place. It’s vital to keep the employee informed of changes but they have to be treated the  same as all other employees and if any changes take place then it has to be transparent and fair.

2.  There are familiar elements in this!

In response, I would suggest that keeping the two matters separate would be advisable if at all possible, at least in the first instance. There is a sickness element and an issue relating the availability of work for the employee – both of which should be referenced in the company’s rules/procedures/policies/handbook, etc.

However, that does not mean the sick employee can’t be kept informed about the impact of the planned budget cuts on the project they were working on prior to sickness. I would hesitate about using it as a reason to move to a disciplinary/capability procedure.

There seems to have been some contact between the sick employee and the employer as the employee has indicated they do not wish to be contacted until they are ‘well’ again. I suggest the employer checks the contract – there may be a requirement for the employee to keep in touch during sickness absence and if so, they should be reminded of it and I imagine the employer can insist upon it for justifiable operational reasons.

I would recommend adhering closely to existing sickness and return to work procedures, encouraging contact as a sensible and reasonable responsibility of the employee as much as the employer.

Any action in relation to changes to role/budget cuts/etc should be approached as a separate entity, especially if they affect/impact on other employees.

Experience suggests a cautionary approach, steeped in the existing procedures for managing sick leave on the one hand and the availability of work on the other.

3.  I don’t know if Paris Smith gets  the magazine  ’Governance’, but this month’s copy addresses some of these concerns.  The bottom line does seem to be careful documentation of everything they do.

However I am not a lawyer or HR person, so  it would be advisable for the questioner to consult one or both of them. The  NCVO has consultants or they could turn ACAS as they have experts too. The Charity Commission may well have advice on their website.

He/she could also turn to the  HR firm Jaluch  (www.Jaluch.co.uk)  take an initial free call on a specific question and might help put them on the right track. They  have  good rates for helping charities.  However they clearly need employment law advice to ensure they follow correct legal procedures so they should get it either from a charity law expert ( many law firms have them) or initially from Sandy Andirondack who has edited to Charity Law manual and would know the law that would be applicable to their case and  might be able to help.  (www.sandy-a.co.uk )

4.  By Stephanie Merritt, Employment Lawyer, Paris Smith LLP

This query covers a number of employment law risks and therefore, whilst I am happy to provide some guidance, this should not be seen as a substitute for specific legal advice upon this situation. I would therefore be happy to discuss an estimate of my fees to provide that legal advice. Applying general principles, without full details, I would provide the following guidance only:

• You could move to contemplating dismissal on the grounds of medical incapability but as a very minimum you would need up to date medical advice on the likelihood of the employee’s return to work before you could proceed to dismissal
• You can continue with the restructure at this time if business need dictates, but you will need to be mindful of the individual’s specific medical complaint and possibly make appropriate adjustments to the consultation and/or selection process if you are looking at changing terms and conditions or redundancies as part of that restructure process