Hi All,
Re EAPs - depending on your EAP setup - the EAP referral may be appropriate for the SENIOR GUY - our EAP will formally support managers manage difficult situations and identify with them what to say, what not to say and rehearse the foreseeable situations that he will undoubtedly have with his partners ex. This is great for when it is a work performance (NOT health) issue created by an indivdiual's performance or lack of it at work.
The employee can try and medicalise it - by calling it WR stress but his condition is unlikely to come under the Equality Act definition and therefore technically no reasonable adjustments are required. This is an important point for me - too often employers say that have to consider reasonable adjustments - no they don't - and OHAs should be clear on this!!
As a caring employer you may be offering options (if possible) and because he is a loyal employee, but apart form that he is in breach of contract if he doesn't perform at work as required by the ususal policy and procedures.
As the situation was not casued by a malicious act on behalf of the employer, simply normal recruitment and promotion opportunities then his options are to choose to resign or to managed on poor performance. Mediation can be offered but that is for HR to sort.
If he does go off-sick then you can always decline the OH referral!
If HR/MGT are worried about the risk of a civil claim for WR stress - then a reminder about what is required for the employee to be successful in a negligence claim.
Firstly best case wins! Then the following three things have to be proved in the order below for a negligence claim to have a chance of being successful.
1) The employee has to prove that the employer owes him a duty of care - easily done if there is a contract of employment.
2) The employee has to prove that there was a breach of that duty of care - ??
3) The employee has to prove that the breach in 2) caused the injury (i.e. WR stress) claimed
So 1 is easy to prove.
2) I think he is going to struggle to do this - IMHO I can see no lapse - they simply promoted the right person for the job and he is CHOOSING not to work with him and cause problems to the rest of the team.
3) is not applicable because 2) cannot be proved.
You may get a claim for constructive dismissal. It is his right to decide to leave or apply for other job.
So robust record keeping required methinks!
Kind Regards,
Catherine
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