Managing sickness absence is always difficult and dealing with someone who you suspect is not genuinely ill has always been trickier. You might have seen it happen and had your suspicions, but how to you prove that the sickness was not genuine? It’s not easy, so here are some suggestions to help you.
Step 1: Identify and assess potential evidence
The first step is to identify and record available evidence to support your suspicions.
If you have evidence that one of your employees is being dishonest by claiming to be off sick when he or she is not, you may be able to discipline them or even dismiss them for misconduct.
Mere suspicions and rumours will not be enough to show misconduct. However, social media has the potential to provide a good source of possible evidence. If you are presented with evidence from social media, perhaps from another employee, you can use it in the same way as you would any other anecdotal evidence or an employee tip-off.
The credibility of the evidence retrieved from social media will need to be tested in the usual way. Has the information been taken out of context and are the dates of posting accurate?
There is debate over whether social media posts are in the public domain or private, in which case, your employee could argue that this breaches their right to privacy. However, interference with the right to privacy can be objectively justified and might be permissible if you have reasonable grounds to believe that your employee is fraudulently claiming sick pay.
In general, as an employer, you should be able to rely on such evidence, but each case would need to be assessed on its own merits and ‘fishing’ exercises are never advisable.
Step 2: Review the evidence
If your evidence of malingering looks robust and credible then you should be able to start a disciplinary process for misconduct.
A lack of evidence of dishonesty does not mean that you cannot challenge an employee you suspect is not really as ill as they claim. People will often continue to take unwarranted time off where they believe their absences are passing unnoticed.
You can address this by ensuring that return-to-work interviews are carried out following each occasion of absence and encourage your line managers to probe further (or push for medical evidence) if faced with evasive or inadequate answers.
Step 3: Give evidence of misconduct
If you believe you have evidence of dishonest behaviour, it is important not to jump to conclusions. Remember that employees do not have to be bed-bound, or even at home, in order to be unfit for work.
An employee posting pictures of himself on holiday or doing sport or other leisure activities may still be genuinely unwell. Many health conditions do not improve as a result of lying in bed. It is still important to carry out an investigation, as you would for any other allegation of misconduct.
How do you spot malingerers?
Some of the signs include patterns of absence, such as the same day each week; triggers for absence, such as being invited to a disciplinary meeting; reluctance to provide medical evidence or attend appointments; posts on social media; tip-offs from colleagues and reports of activities that seem inconsistent with ill-health, such as undertaking other work or going on holiday.
Step 4: Remember to follow your procedures
Before disciplining or dismissing the malingering employee for misconduct, you must follow your own procedures and the Acas ‘Code on discipline and grievance’, as you would do in any other disciplinary scenario.
You will need to put the evidence to the individual, hear their explanation and consider if that explanation requires further investigation and medical evidence may be needed.
You must also consider the individual circumstances of the case and any mitigating points, such as length of service and previous disciplinary history, as well as how similar cases have been dealt with in the past.
Make sure you follow this process any time you are unsure of how ill an employee really is. If in doubt about how to handle such a situation, contact us by calling 0118 940 3032 or clicking here to email us and we’ll help you through it.