Q: We have an employee who has breached their employment contract and possibly the business’s code of conduct. Since this has come to light, the employee has been supplying sick certificates to cover their absence.

Is it reasonable to contact people while they are on sick leave? Our first priority is to touch base when people are away to see if they are okay (there is real cause for concern regarding this person’s ongoing stability).

If we wanted to proceed with the breach of contract, could we get a medical expert to determine their fitness for duty and ability to engage in conversations that could potentially lead to dismissal? Or could we ask for further medical information to ascertain if reasonable measures can be implemented to prevent the employee being unfit for work?

A: An employee can’t evade a disciplinary process because they are on personal leave, but it does make it more difficult to proceed.

There is increased exposure to legal claims when an employee takes personal leave and you may wish to seek legal advice.

We suggest that you write to the employee setting out your concerns and asking them to either attend a meeting to discuss the matter, or provide written responses to the alleged breach of employment contract and the code. In the letter, you can acknowledge that the employee is on personal leave, but given the seriousness of the matter you expect them to engage with you. You should let them know that failure to provide reasons for their behaviour or failure to engage with you may result in disciplinary action being taken against them, including that their ongoing employment is jeopardised.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Personal/carer’s leave and Ill or injured employees for current advice.