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Absence Management: Is Your Employee Really Sick?

Let’s be honest here, it’s likely that some of you reading this will know of someone who has ‘pulled a sickie’.  As an employment lawyer, I’ve heard all manner of ‘justifications’; “the weather was nice”, “my holiday was refused”, “I knew they’d say no if I asked for time off at the last minute” …  A recent ruling in the Employment Appeals Tribunal (EAT) gives hope to employers everywhere that they can take action against an employee who has ‘pulled a sickie’.

Now everyone knows that you cannot punish an employee for being sick and, likewise, employers (hopefully) know their staff are not invincible and do on the odd occasion become sick.  In fact, many employees drag themselves into work even when they are unwell for fear repercussions or stigma.  Believe me, employers are not worried about this type of employee as they do not doubt that their illness is genuine on that rare occasion a very apologetic call comes saying they unable to come into work.

No, these are not the employees that employers are worried about.  It’s the employee who always seems to call in sick either before or after a bank holiday.  It’s the employee who returns from two weeks’ annual leave only to call in sick on their first day back.  It’s the employee who always calls in sick on pay day.  It’s the employee who calls in sick when the weather hits record temperatures for the summer.  Need I go on?

To the frustration of many employers, a small number of these types of employees exist but, to the surprise of many, they are not untouchable.  With the right sort of investigation, a thorough process and expert advice, action can be taken to remove these employees from a business.  The recent EAT case concerned a bus driver who exaggerated his symptoms when he was ill and he was dismissed as a result.  The dismissal was deemed fair because, rightly so, the EAT determined that ‘pulling a sickie’ was dishonest.  The employee in question had lied to his employer which amounts to a fundamental breach of the implied term of trust and confidence between an employer and an employer.

So, how do you tackle an employee like this I hear you ask?  Very carefully is the answer!  Here are my top tips if you are faced with such a scenario:

1. Do you have a reasonable belief the employee is being dishonest about their illness?  If so, ask yourself where that belief comes from and if you have any evidence upon which to base your suspicion.

2. Don’t just assume because the employee is new, it is their first absence or the absence seems a little too convenient that the employee is being dishonest.

3. Look for patterns in absence records.  Does the employee tag on that extra day to a bank holiday or do their absences always fall on a Monday or Friday?

4. Listen to what other employees say in passing or directly to you.  Do they complain about their colleague bragging about a long weekend away when they have called in sick?

5. Carefully consider the evidence you have.  Do you need to obtain more and if so, how?  Surveillance of the employee in question is possible BUT extreme caution should be exercised as there are very strict rules on surveillance of employees.

6. Consider holding an investigatory meeting with the employee.  Remember, an employee does not have to be given advance notice of an investigatory meeting nor do they have the right to be accompanied.  So, pulling them into a meeting and asking considered probing questions about their absence might produce some interesting responses.

7. Once you have investigated and collated the evidence, determine whether you feel disciplinary action is warranted.  Remember, if your suspicion about the employee is based on nothing more than a hunch, it may be advisable to implement a sickness absence management procedure rather than take disciplinary action alleging dishonesty.

8. If you do decide to take disciplinary action for dishonesty, tread very carefully.  An employee is unlikely to take kindly to be accused of dishonesty and this could damage the working relationship.

9. Get the procedure spot on!  Dismissals must be procedurally fair so make sure you get the process right. Seek advice if you are unsure.

10. Consider all of the evidence, including the employee’s defence to the allegation.  Does the evidence demonstrate dishonesty? Do not make a snap judgment, take time to let everything sink in.  

11. If you remain unsure, seek advice!

The above top tips only scratch the surface on this issue.  Extreme caution should be exercised by employers before embarking down this route.  I can however expertly guide you through this potential minefield so if you have any queries about this article, or any other employment law issue, please contact me on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Solicitor Advocate LLB (Hons), Higher Rights (Civil) at SCE Solicitors
Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

Latest posts by Samira Cakali (see all)

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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