Employees pulling a sickie is not a novel workplace irritant. However the explosion of social media, smartphones and its knock-on effect has gifted employers a rich new seam of suspicion and potential evidence, says Hannah Ford, Senior Associate in a recent article featured on Employment Solicitor.com
For example, in the case of Gill v SAS Grounds Service Ltd, an employee’s Facebook posts betrayed the fact she was at London Fashion Week when she had been signed off work sick.
It is perhaps unusual for employers to be gifted with such irrefutable evidence of dishonesty – what steps can an employer take when it suspects an employee is on the beach, not in the sick bay?
Firstly, it pays to have clear, robust and consistently applied absence procedures for dealing with non-disability/or pregnancy related absences. Common provisions include a requirement to phone in personally to report absence (so no ducking out with a text sent en route to Alton Towers), a requirement to undergo a return to work interview at which questions are asked and/or complete a return form which probes the reason for absence, treatment sought and medication taken.
Any such documents should of course be stored in accordance with the data protection principals relating to sensitive personal data. This type of evidence can be useful in demonstrating a pattern of unacceptable absence of evasive behaviour.
Employers should apply consistent thresholds in dealing with this type of intermittent short-term absence, such as red flagging employees who have taken a certain number of day’s sickness. This in itself can demonstrate that the employee’s habit has not gone unnoticed.
Where an employer has reasonable grounds to suspect dishonesty it should investigate involving occupational health, the employee’s GP or other medical adviser if appropriate. Failure to adhere to sickness reporting procedures can and should be challenged.
In the recent case of Ajaj v Metroline West Ltd, an employee exaggerated a workplace injury. His employer, concerned about the genuineness of his condition placed him under covert surveillance and ultimately dismissed him for exaggerating the extent of his inability to walk. His dismissal on grounds of misconduct was held to be fair by the Employment Appeal Tribunal (EAT). The EAT held that when considering the fairness of a dismissal for misconduct in these circumstances, the correct question is whether the employer had reasonable grounds to believe, based on reasonable investigation, that the employee had misrepresented the extent of his injuries i.e. whether he had “pulled a sickie” and been dishonest. Where he or she had this amounted to a fundamental breach of trust and confidence and grounds for summary dismissal.
This decision should give employers greater confidence in using “misconduct” rather than capability procedures to tackle the workplace sickie which is obviously good news for employers. Employees “pulling a sickie” may be an old problem in the new workplace, however employers can be confident that provided their evidence is robust, credible and properly obtained i.e. without privacy infringement, the cure for this malady is a simple one – tackle it firmly in the same way as it would any other form of misconduct.
First published on EmploymentSolicitor.com, September 2016