Legal expert Kevin Charles offers tips on dealing with the biggest absence headaches

Long-term sickness can affect production and staff morale, and lead to discrimination claims. The key to tackling such concerns effectively is to be aware of the problems that commonly arise, and know how to deal with them.

While these guidance points will not make any headaches go away, they should certainly ease the tension and help managers avoid making mistakes.

An employee is not fit for work but everyone on Facebook can see they are taking part in leisure activities and trips abroad. What should I do?

Managers should avoid making snap judgements on reports that a sick employee has gone abroad or been seen playing sport, or otherwise enjoying themselves while on sick leave. There is no legal requirement that an employee off sick must stay at home. In many cases – especially stress-related ones – it might actually be medically advisable for them to undertake some stress-relieving leisure activities. However, it would amount to misconduct or gross misconduct for an employee to take sick leave dishonestly when not genuinely unfit for work.

What happens to holiday entitlement when a staff member is on long-term sickness absence, especially if they are off for more than a year and the policy says holiday cannot be carried over?

An employee’s statutory holiday entitlement of four weeks under the Working Time Directive continues to accrue while they are on long-term sickness. If they have not been able to take this leave because of sickness, it can be carried forward into the next holiday year regardless of what the employer’s policy might say. However, it can only be rolled over for 18 months after the end of the holiday year in question, after which the employee loses this leave.

What happens if an employee refuses to cooperate with occupational health or consent to a medical report?

In this scenario, an employer would be entitled to base its opinion on the relevant facts available – even if those facts are insufficient to give a full medical position. The employee should be advised that the employer’s decision will be taken on the facts available and could result in their dismissal, potentially on the grounds of ‘incapacity’.

How do you deal with conflicting medical opinions about a long-term sick member of staff?

If two medical reports conflict the failure to investigate further (perhaps by way of a third report) could render a dismissal unfair, particularly where there is a substantial difference of medical opinion. One alternative is to ask the doctor (such as a GP) who provided the first report to review his report in light of the opinion of the second doctor (which may be, for example, a consultant).

What help is there for small businesses that don’t have an occupational health service?

The Fit for Work (FFW) service is delivered in England and Wales by Health Management and in Scotland by the Scottish government via NHS Scotland. The FFW service offers free health and work advice through its website and telephone advice line to help employers with absence prevention. It also provides free referral for an occupational health assessment for employees who have reached, or whose GP expects them to reach, four weeks’ sickness absence.

Can I dismiss an employee if they are still in receipt of company sick pay?

The fact a dismissal is effected while the employee is still in receipt of company sick pay will not automatically make the dismissal unfair. However, this does not mean that it will be fair to dismiss once they have exhausted their sick pay entitlement. The key factor is the impact of their absence on the business and weighing this up against their rights to be treated fairly.

Kevin Charles is a consulting barrister at Crossland Employment Solicitors