[Kevin White]

We have just inherited someone (TUPE) on long term sick leave.
Can't get this person to communicate directly with us, just through their partner who simply states that the situation is the same, keep the job open, won't even send a sicknote.
I believe the sickness is over a year now.

I know it is possible, but tricky, to dismiss but have any of you guys had the same or similar and throw me a bit guidance.

[Alan Rowley]

At the last firm I worked at, they used to sack people who had been off for a year for not fulfilling their contract. Can you try this approach?

[Fox]

You need to get their contract of employment from their previous employer and see what it states about long term sick, is this person claiming SSP? 

Write to them stating that you will be applying to their doctor for a medical report because of the long term sickness and because you have not been recieving sick notes, they will need to sign a document allowing you to do this, if there is nothing to hide there shouldn't be a problem, you will need to find out how much the report costs as it varies from doc to doc but they are normally approx £85 it might be the best money you have ever spent.  If they refuse for you to contact their GP or to provide a sick note you will have a strong case for dismissal under unauthorised absence.  Hopefully just the letter asking to approach the GP will be enough for them to stop playing this silly game.

Fox

[Kevin White]

Cheers fox,
as I thought. doctors 1st, then offer some sort of alternative, hrs, location, then if still nothing lose the employee as not being "Capable" sticking strictly to a disciplinary procedure.

The snag with this one is I don't think the former employer actually gave a contract, this becomes difficult for us to give an accurate one from us.

Just to deepen the problem the long term sick is related to the customer, the operative tried to claim against them for thier nervous breakdown and lost.

HR nightmare, the other 2 staff involved are just as problematic, no contracts, sick the first day and possibly drunk the 2nd day.

regards
Kevin

[Fox]

OMG sounds like a right nightmare!  The fact she tried to claim against the client/previous employer doesn't really matter as she lost so it wouldn't be taken into consideration.

If the cleaners turned up drunk you have a right to instantly dismiss them due to gross misconduct contract or no contract, it makes them unfit to work. 

I take it the cleaners have been employees with the previous company for more than a year?  Were they employed by the clients direct or by another company?

Fox

[Kevin White]

The contract is 40 hpw, 1 op at 30 hrs, long term sick.
The other op at 10 hrs, questionable character. There is another op covering the 30 hr job, who's job is it ?
The 1st two came from the customer to the outgoing contractor under tupe.
I don,t fancy dismissing anyone until I have them under a contract, once I get them to sign ours it supercedes anything that went before it because thats what they have accepted, PS it wasn't me who smelled the drink, it was mentioned after.
Sort of enjoying this pickle, a bit of a change of scenery.

One more question. Are we as the new employer responsible for any holidays owed once the contract switches over. Wouldn't be suprised under tupe.

[Fox]

So the employees were originally the customers, be careful about getting them to sign your contract, if its much different to what their old one was (even if it seems non exsistent) it won't stand up unless the time frame since you took over is acceptable - approx 6months.  What you need to do is go to the customer and ask them for a standard contract for their employees (they shouldn't have a problem giving you this as they should know about TUPE) this contract will no doubt cover the cleaners and you then have at least an idea of terms and conditions of employment.

No you wouldn't take on holiday pay owed from a previous employer under TUPE, they should be paid up to date and then you take over counting from day one of your take over, you will however have to stick to the previous employers holiday entitlement so if they were given 30 days per year you will have to give that too. 

Fox