Checking up on sick leave

There are a few options open to you in this instance. When you suspect that a sickness is not genuine, you can consider dismissing an employee for fraud although you will need to show that you have carried out a proper investigation and have reasonable grounds for believing that their actions are false. This can be difficult and costly, involving independent medical practitioners.

Remember that statutory sick pay falls under the auspices of Her Majesty's Revenue and Customs because if you have good grounds for believing that your employee is fraudulently claiming SSP then you could consider contacting HMRC, which may be willing to investigate. An investigation by HMRC is a good way of prompting people to re-evaluate their situations.

Unfortunately, generous sick pay schemes can be exploited by employees whose recovery often coincides with the ending of their sick pay entitlement. If you fall into this category, reducing these for new starters may be the first place to start when trying to reduce the cost of sickness to your business.

If an employee has been off sick for some time then you may have the option of dismissal on medical capability grounds. However, you need to exercise caution with employees who have been signed off long-term sick by a medical professional; you would need to have justifiable grounds for contemplating dismissal and have forewarned the employee that their continued absence may result in dismissal.

Ask your employee for permission to contact their GP - or specialist if they have one - for a report on their condition and how long it is likely to last. Another factor to consider is the Disability Discrimination Act (1995): an employee suffering with long-standing health problems is likely to be considered as disabled under the DDA. In such cases, employers are under more onerous obligations in managing and assisting such workers. Employers must make what are defined as reasonable adjustments to assist an employee's return to work; what is reasonable will depend on many factors, including the size and financial resources of an employer.

Employers should refer to general and occupational health practitioners to establish whether or not an employee is suffering a disability.

You can then invite the employee to a capability meeting to discuss the report and to consider options including whether any reasonable adjustments can be made and the possibility of suitable alternative work.

If the medical evidence supports that they will be incapable of work for the foreseeable future, that no reasonable adjustments can be made, that no suitable alternative work is available and that you have a genuine need to replace the employee on a permanent basis then you should be in a position to give notice of termination on the grounds of capability.

The government does plan to change the current GP's sick notes scheme that is generally unhelpful, providing little detail of an employee's condition. Hopefully, the introduction of the replacement 'fit notes' will assist employers in assessing their employees' health and putting them back to work quickly.

Peter Done, managing director, Peninsula