If you think your employee is faking illness to take time off work, here’s a recent case to help you decide what you may need to do. An employee was on sick leave after a workplace accident. He was put under surveillance after suspicions were raised to the employer. He was seen to be walking easily. The employee was dismissed for fraud. However, he claimed that while he could walk, he could not perform his contractual duties at work. Furthermore, this required him to remain seated for long periods.
The Employment Appeal Tribunal confirmed that an employee who dishonestly claims they cannot work because of an illness or injury breaches the trust and confidence. This is required of any employee in the employer/employee relationship. Their dismissal is a result of their conduct, not their capability. The procedures to be followed are those for dismissal for misconduct. The employer in this case was found to have carried out a reasonable investigation. As they genuinely and reasonably believed the employee was acting fraudulently. The dismissal was therefore fair.
In cases of employees believed to be faking illness to take time off work, the issue is one of conduct. Therefore, this should be dealt with as a disciplinary issue. Employers should:
- ensure they carry out reasonable investigations
- genuinely and reasonably believe there has been dishonesty
before dismissing an employee for lying about or exaggerating an illness or injury in order to benefit from sick absence. It’s all in the investigation and following your own disciplinary process properly and thoroughly.
How do I spot if someone is malingering?
If you think your employee is faking illness to take time off work, there are a number of possible signals. You need to look for patterns of absences. Are they unable to provide medical evidence? Are there work situations that are triggering the absences? Or if colleagues have given you evidence of what they believe to be fake sickness absences. Maybe you have seen images or posts on social medial websites that aren’t compatible with the employee’s claims. For example, you may notice that an employee:
- contracts a 24 hours virus on numerous Mondays or Fridays
- is taking regular short-term absences when a big sporting event is on. i.e. the World Cup or Olympics
- develops a migraine when a big project is announced
- has the same week off a year for the same illness, i.e a school half term. They return to work before they have to produce a doctor’s certificate
- says they are bedridden with the flu. Then pictures surface on their Facebook profile of them enjoying themselves somewhere other than work
- was rejected for annual leave the same time as they have a period of sickness absence
Employee dishonestly claiming illness or injury breaches duty of trust and confidence to employer. So, if you are unsure of an employee’s genuine claims to illness, and if you think your employee is faking illness to take time off work, please give us a call – 01706 565332.
Metis HR is a professional HR Consultancy based in the North West of England supporting clients across the country. Metis HR specialises in providing outsourced HR services to small and medium-sized businesses. Call us now on 01706 565332 or email us to discuss how we may help you.