Legal

How can employers tackle bogus sickness absences?

4 Jan 2021 By James Tamm

With more genuine reasons for staff to be off work, firms must be careful how they approach someone they suspect is faking illness, says James Tamm

It’s generally acknowledged among HR professionals that absenteeism tends to creep up during the winter months. However, this year, a combination of seasonal flu, ongoing Covid-19 restrictions and anxieties surrounding returns to work may mean surviving on a reduced workforce becomes more of a challenge than ever before. 

With more genuine reasons for employees to take unscheduled time off work, such as Covid-related sickness and the several government-defined circumstances to self-isolate, come more excuses for malingerers to take advantage of. So what should employers do if they suspect that an employee is fabricating the reason for their absence or exaggerating their illness to avoid attending work? And how can you deter these seasonal sickies?

Determine the right route to take

Whether you are dealing with malingering or real illness will determine which process to follow. Frequent short-term absences, while disruptive, should be dealt with through your absence management process if genuine – unless of course certain trigger points, as set out in your sickness policy, are met. Bogus absences, on the other hand, are about conduct, and should therefore be dealt with as a disciplinary issue.

Don’t dive in feet first

While you may strongly suspect that an employee isn’t being honest about their absence, be careful not to jump to conclusions. If the absence coincides with an important meeting or deadline, you notice a pattern emerging, or the employee’s posts on social media aren’t compatible with their claims, you may be dealing with a malingerer, but you would need the clearest evidence of this before taking disciplinary action.

If you suspect an employee is malingering

You will want to confirm your suspicions and discourage repeat offences. There are some tried and tested ways to do this, as well as some legalities to bear in mind:

  • Commit to conducting return-to-work interviews after every absence. While you might view them an unnecessary step that prolongs the absence management process, the thought alone can be enough to put off would-be malingerers.
  • If you have vague, inadequate or illogical reasons for absences, you may wish to ask for medical evidence. You will typically need the employee’s written authorisation. Note that GPs are very unwilling to provide medical evidence for absences of fewer than seven days; if you are dealing with a repeat pattern of absence, look to obtain a report from either a GP or an occupational health professional to check for any underlying health condition. The realisation that they are unable to provide any real evidence can discourage bogus absences. If the employee is reluctant to consent to medical evidence, probe as to why. If they repeatedly refuse, write to them explaining that you will need to make decisions based on the evidence available.
  • As with any other form of misconduct, a thorough investigation must be conducted before taking disciplinary action. Failure to do so may give the employee grounds to suggest that such allegations amount to a breach of trust and confidence, enabling those with two years’ service to claim constructive dismissal. 
  • Don’t rely entirely on social media. While you may be tempted to check their recent activity to potentially gather evidence of wrongdoing, be wary of data protection and privacy issues and only seek targeted, relevant information. Also be careful not to take potentially incriminating photos or posts at face value; you might be missing important context and upload dates can be misleading. Speak to the employee about the conflicting information and give them the opportunity to offer an explanation.
  • Maintain workplace hygiene standards and a robust cleaning regime. Not only is this a crucial control measure in the battle against coronavirus, but employees may take advantage of a spate of genuine absences to legitimise their own malingering.

Of course, home working and the unusual circumstances we’re in may make bogus absences harder to detect or prove. However, our experience is that absences have declined this year, as it’s far easier for employees to soldier on when the need to attend the office is removed. And with restrictions still in place, opportunities to go out are limited, meaning hangovers and the temptation to call in sick are, hopefully, greatly reduced.

James Tamm is director of legal services at Ellis Whittam

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