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Malingering: How to manage dishonest employee sickness absence

How to manage capability when an employee is dishonest

When an employee is unable to undertake the full duties of their role or they have high levels of sickness absence due to an illness, this can be difficult for employers to manage.  From time to time, we all have unavoidable periods of illness, and need time to recover. In rare cases however, you may have concerns that an employee is not being genuine about an illness, in order to avoid work, do less work, or gain financial benefit e.g. company sick pay. This is known as malingering – when an employee pretends to be ill in order to escape duty or work.

Can you dismiss an employee for malingering?

Malingering is rare, but it does happen.

When you become aware that an employee is being dishonest about their illness, this naturally breaches the trust and confidence of the employment relationship between employee and employer, and could result in a gross misconduct dismissal. To act on a suspicion of malingering you must be able to demonstrate to a tribunal, if required, that you have acted with good cause. To do so, you must: have a reasonable belief that the illness is not genuine; reasonable grounds to support that belief; and have carried out a fair investigation.

Genuine illness

Remember that the small percentage of malingerers should not take away from the significant impact that genuine illnesses and disabilities have on individuals. We should strive to offer support and prioritise the wellbeing of our employees as much as possible. A disability is defined in the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on an employee’s ability to carry out normal day-to-day activities. Employees are protected under this act against discrimination, which could occur if an employer fails to comply with its duty to make reasonable adjustments for, or discriminates against, a disabled employee.

As HR professionals, business owners and managers, the majority of us are not medical professionals. We cannot ‘diagnose’ malingering, and therefore gaining medical information about an employee’s condition from a medical professional such as their GP or Occupational Health allows employers to make informed decisions.

Seeking a Medical Opinion

Detailed descriptions of illnesses, conditions, and suggested treatments exist online, and a malingering employee could quite easily recount a list of convincing symptoms to their GP. Gaining a medical report from a GP is a useful starting point in the absence of an Occupational Health report. However, take into consideration that a GP’s assessment may be more biased towards the employee’s account, and not very informative for an employer. It’s therefore recommended to seek the opinion of an Occupational Health practitioner to advise on how an employee’s health affects their ability to work, and any reasonable adjustments that an employer could make to facilitate the employee’s ability to carry out their role. Through further assessment of the individual’s condition, an Occupational Health report may help you to identify a malingerer.

How do you identify malingering?

The following indicators, although not conclusive, may suggest that you could investigate a suspicion of malingering further.

  1. Inconsistency of Medical Records

If the employee’s account of what they can and can’t do is not consistent with their medical records, or with a medical professional’s assessment of their condition, this may indicate malingering.

  1. Lack of Cooperation / Failure to follow treatment

If an employee is guarded and uncooperative towards an Occupational Health practitioner, or reveals that they are not following a treatment plan correctly, this may also indicate malingering.

  1. Misattribution of blame on the employer

The employee claims that their injury or illness is solely caused by work, but medical records or existing knowledge of their personal situation/circumstances suggest that there may be other known causes. For example, an employee may claim that they are suffering from a stress related illness which they are attributing solely to work, but it is known that they are currently going through a divorce. If they withhold other causes of stress during a medical assessment with their GP or with Occupational Health and only blame their work, this could suggest a willingness to malinger.

  1. Covert Surveillance

Employers must carefully consider data protection laws before attempting covert surveillance, and it rarely proves malingering, so tread with caution here. More commonly, you may find contradictory comments from the employee on social media which could suggest malingering, but again this rarely proves malingering.

  1. Medico-legal referral for a medical assessment

It’s unusual for a lawyer to refer an employee for a medical assessment, unless they are trying to seek compensation or raise a personal injury claim, and so this may indicate malingering.

What does the case law say? Metroline West Ltd v Ajaj

In the case of Metroline West ltd v Ajaj, a reasonable belief of malingering supported a conduct dismissal. The employee claimed that he could not drive at all because of a bad back. Believing the employee to be dishonest about his condition, the employer dismissed for gross misconduct. The employee raised an unfair dismissal claim, arguing that the employer had not thoroughly investigated whether the employee could drive with the back injury. The employers evidenced malingering by demonstrating a series of reasonable grounds for believing that the employee was dishonest about his injury, and therefore justified a dismissal for gross misconduct based on the breach of trust and confidence.

It’s important in all cases of employee illness that you act with care and follow a process to ensure that the employee is supported as much as possible. To act on a suspicion of malingering, you must be seen to have reasonable belief and be able to demonstrate that you have acted fairly in investigating the malingering, to avoid a constructive or unfair dismissal claim being brought against you.

If you have concerns about employee absence, or suspicions that you may be managing a malingering employee, our team of HR Consultants can provide advice and support. You can contact our team on 01271 859267 or office@fitzgeraldhr.co.uk

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How to measure time lost to sickness absence

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