Q: A member of staff has gone on long-term sick leave for two months with non work-related stress and depression. They say it will continue for some time, but we believe that they are not genuine. Can we dismiss them?
Mar 06 2009
Answered by: Peter Done Ask a question
You need to be very careful here. This is someone who has been signed off sick by a medical professional, so you would need to have good grounds for disputing that evidence. These are conditions that may not be apparent from a visual inspection and you cannot make assumptions on someone’s health based on their observed behaviour.
Give consideration to the reason you will be dismissing them. They have told you that they are going to be off sick for some time. This gives you the option of dismissal on medical capability grounds. 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. You can then invite the employee to a capability meeting to discuss the report and consider your options, including dismissal. If the medical evidence supports that they will be incapable of work for the foreseeable future then you will have the option of fairly dismissing, having carried out a reasonable investigation and complied with the statutory procedures. If it doesn’t, then you can query the discrepancy of evidence with them.
What are your reasons for believing that they are not genuine? If you are looking at dismissing them for fraud then you will need to show that you have carried out a reasonable investigation and have reasonable grounds for believing that their actions are false. Remember that statutory sick pay falls under the auspices of the HMRC, and so fraudulent claims for sick pay could be considered tax fraud, which is a criminal offence. If you have good grounds for believing that your employee is fraudulently claiming, then you can contact HMRC and they may be willing to investigate. An investigation by HMRC is a good way of getting people to re-evaluate their situation.
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