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Handling sickness absence this summer

It’s been a sport-packed summer so far and more to come…Wimbledon, Euros, Olympics, Paralympics. Summer also brings the good weather, which can lead to long hot sunny afternoons. From time to time, employees may ‘pull a sickie’ in order to catch the sporting action, or to spend a day in the sun. “Sickies” can be incredibily disruptive to organisations and they’re not something that an employee is entitled to or deserves. So what can you do if you suspect an employee of pulling a sickie?

Sickness Absence Procedure

It’s advisable to have a workplace sickness absence policy and procedure in place. Employees must follow the steps in this document should they be absent from work due to ill health. A sickness absence procedure may prescribe the following:

  • Calling a direct manager or HR within 60 minutes of the employee’s start time to confirm absence, the reason for it, and a likely return date.
  • A return to work interview to be held and details of absence to be documented on an employee’s HR file.
  • If absence lasts less than 7 days, the employee must provide a self-certificate.
  • If absence lasts 7 days or more, they must provide a Statement of Fitness for Work (Fit Note) from their GP.
  • Trigger points, detailing when formal warnings will be issued.

Absence procedures are for managing absence effectively. However, if you believe an employee has pulled a “sickie”, this would be considered misconduct and you can use your disciplinary procedure to address this issue. Even so, whilst you may have suspicions about whether an employee’s absence from work is due to a genuine illness, it may be considered difficult to initiate a formal process where there is no evidence to substantiate these suspicions.

Suspicions about whether employee is genuinely sick…

So what if a print out of an absent sick employee’s Facebook page drops on your desk from a disgruntled fellow employee showing that, rather than being stuck at home sick with the flu, this employee was actually enjoying a day at Wimbledon in the sunshine with a glass of Pimms in hand? Why should that employee get time off ‘for free’ and not cash in one of their annual leave days? Now, thanks to the world of social media and many co-workers being ‘friends’ on the likes of Facebook, it is possible for an employee to be caught out pulling a sickie. Photos, videos, comments and ‘check-in’ updates (where users can post to say that they have visited a particular location) can be posted, which can reveal what users have been up to when they should have been at work.

…when and how can an employer act?

If an employer has a reasonable belief that an employee has not been truthful about the reason for their absence (not just a ‘hunch’, there must be reasonable grounds), there is potentially a conduct issue and you may in these circumstances consider invoking your disciplinary procedure. If you have your own policy and procedure, ensure you follow it carefully, but if you do not, follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

An employer must be careful not to just snoop on employees’ social media pages. You may otherwise expose yourself to claims of breaching trust and confidence in the employment relationship or even discrimination claims due to these sites often revealing personal information, such as sexual orientation and religious beliefs. If contained and clearly communicated to employees in a policy, reasonable monitoring may from time to time be carried out. It may of course be perfectly reasonable to act upon information voluntarily brought to you by another employee and a fair investigation commenced.

It is important to remember that being unfit for work does not necessarily mean that employees are unfit for other activities, particularly in cases of mental illness. It can often be beneficial for people suffering from depression, for example, to take a holiday and this may even be on a doctor’s recommendation.

…what can an employer do about it?

Following a reasonable investigation and fair disciplinary hearing, should you form a reasonable belief that the employee is ‘guilty’, a sanction that is proportionate to the misconduct should be enforced. Helpfully, there has been a recent case which offers guidance in what a reasonable sanction may be where an employee lies in the context of sickness absence: Ajaj v Metroline West Ltd.

In this recently determined case, Mr Ajaj lied to his employer about the extent of his ill health and was found to have committed gross misconduct – it was dishonest and a fundamental breach of contract. Mr Ajaj, a bus driver, suffered an injury in the workplace and was declared unfit for work. He provided a GP note to his employer confirming his injuries. His employer, however, suspected that the description he provided of his injuries was exaggerated and so carried out covert video surveillance. This surveillance showed that the employee could do a number of activities that did not match the description he provided: Mr Ajaj was not as debilitated as he had held himself out to be. On the back of this surveillance, the employer conducted a disciplinary procedure and consequently dismissed him for gross misconduct.

Whilst the Ajaj case is not a classic ‘pulling a sickie’ scenario (for example, calling in sick after being out drinking the night before or to attend a sporting event), the basic principle is that an employee who pulls a sickie is dishonest and can be relied on by employers in the future. An employee caught by their employer for feigning illness for a day off work may justifiably be dismissed for gross misconduct.

It’s important to note that employers must treat all employees and suspected cases the same as the fairness of disciplinary sanctions require consistency.

Please also note that the use of video surveillance in ‘catching out’ an employee is not always considered appropriate.

Going forward           

  • Check your policies, including sickness/absence management, disciplinary and social media, to ensure they are fit for purpose.
  • A clear policy for managing sickness absence and unauthorised absence should include how employees tell you they are sick, and both managers and staff understand the purpose of the ‘return to work’ interviews, and any triggers towards formal warnings.
  • Make clear in the social media policy that employees’ posts and activities on these sites may be monitored from time to time and used as evidence in disciplinary proceedings if relevant.
  • Make sure detailed records are kept on employee absences, which will enable identification of any pattern and assist with highlighting any issue that may need to be discussed with an employee.
  • In anticipation of a busy sporting summer and long summer nights, send an email to all staff, highlighting relevant policies, expected behaviour and consequences of falling short of this.
  • Seize the opportunity with all these sporting events on TV and consider hosting a work social around a match or two for some team bonding! Ensure expected behaviour is clearly communicated and highlighted in writing to all staff though!

Please note that for ill health issues (long and persistent short term, always use your attendance/absence and/or capability procedures). If you suspect an employee is lying about their health, to the employer’s detriment, this is a misconduct issue. Confusing capability with conduct may result in claims of unfair dismissal and/or discrimination.

If you have any questions about this, please do give us a call on 01271 859 267.