What can I do if I suspect my employee's illness is not genuine?

We are often asked by clients to advise on the various stages of a sickness absence process. Questions vary from entitlement to sick pay to managing an individual on long-term sick leave.

As sickness absence is a sensitive subject, the way in which employers approach this with their employees is important, especially if the reason for their absence is a disability under the Equality Act.

Sickness absence can prove more difficult for employers to manage where it is suspected that an employee’s illness may not be genuine.  If an employee is not genuinely unfit to work they will be referred to as malingering, but how should this be dealt with?

Employees’ obligations during sick leave

Even when on sick leave, employees are obliged to comply with the implied term of ‘duty to obey lawful and reasonable orders’, except where their illness makes compliance impossible.

This obligation could take the form of an employee complying with their employer’s sickness absence notification procedure and providing a valid sick note when required.

However, this duty does not give an employer absolute control of their employee’s activities, even where the employee is in receipt of full pay, for example, because of a company sick pay scheme.

Areas of concern for an employer

Conduct suggesting that sickness may not be genuine

It will usually amount to misconduct or gross misconduct for an employee to dishonestly take sick leave when not genuinely unfit for work. 

Case law has shown that because an employer’s main concern is facilitating an employee’s return to work, if their conduct during sick leave suggests that they are fit to work then this is a matter that concerns the employer. Employers in this situation should follow a full investigation.

Working elsewhere during sick leave

An employee working at a second job while on sick leave will often be considered misconduct or gross misconduct. The fact that the employee is able to work elsewhere could suggest that they are not unfit for work.

While it will be potentially fair to dismiss an employee where they are not genuinely unfit for work or are dishonestly being paid by two employers for the same hours, not all cases mean an employee should face disciplinary action or dismissal.

It is important for an employer to consider the following:

• Whether job B may have some therapeutic value that could not be obtained in job A. For example, job A in a call centre may be highly pressurised and could affect the employee’s mental health condition, but job B may be therapeutic if the employee is working outside as a greenkeeper;
• Whether the duties are sufficiently different that the employee's condition genuinely only prevents them performing job A. For example, job A requires the employee to work at the employer’s premises and they have been medically advised to stay at home, but job B permits remote working;
• Whether job A has caused or may exacerbate the condition, where the same could not be said for job B. For example, if job A requires an employee with an arm injury to lift heavy goods, whereas job B only requires the employee to work at a desk;
• Whether the employee has lied or deliberately concealed facts from the employer;
• Whether the employee has been specifically instructed not to undertake any other work.

Activities and holidays

It is easy for employers to make immediate judgements if they are made aware that an employee on sick leave has been seen taking part in an activity, such as sport, or has gone on holiday. Often other employees will report activities seen on line, on social media, where perhaps an employee attends a festival or a wedding during their sick leave.  However, it is important that employers do not knee jerk their reaction as there is no legal requirement that an individual must stay at home or not go on holiday during sick leave. Case law has presented a finding of unfair dismissal after an employee with a chronic condition was seen socialising during sick leave.

In some cases, such as mental health or stress-related absence, a medical professional may advise an employee to undertake activities or go on holiday if it will help with their recovery and improve the prospects of their return to work. Where holiday is concerned, some employment contracts state that employees cannot use paid sick leave to go on holiday and must instead request annual leave.

In any case, an employee going out during sick leave should not, alone, be viewed as evidence that they are not unfit to work or are acting dishonestly.

Dealing with whether an individual is genuinely ill

Where an employer is concerned whether an employee is genuinely ill, assuming they have two years service and are protected from unfair dismissal or have a potential disability, then this should be properly investigated by referring the employee to occupational health for a medical examination in order to obtain a medical report and thereafter inviting the employee to a meeting to discuss their absence, the activities and the occupational health report.

If an employee is found to be unfit or not fully fit to work, the medical report may suggest ways of rehabilitating the employee back to work. Much in the same way, if the medical report finds that an employee has a disability, the report will usually list reasonable adjustments that an employer should make.

However, if there is evidence that the employee is not genuinely sick or is purposely exaggerating their illness, this should be dealt with under the employer’s disciplinary procedure.

It is recommended that employers consider including wording in their sickness absence policy which states that employees on sick leave may be required to submit to medical examinations at the employer’s expense.

Can I withhold sick pay?

Statutory sick pay

In terms of an employee’s entitlement to statutory sick pay (SSP), HMRC advises that an employer should accept a valid sick note as proof of an employee’s sickness unless there is strong evidence showing otherwise. In such cases, an employer could take one of the following routes:

• Obtain their own medical report;
• Ask HMRC to arrange for the employee to be examined by their Medical Services team;
• Simply telling the employee that SSP is being stopped and that, if the employee disputes this, they can apply to HMRC's Statutory Payment Dispute Team for a determination.

Company sick pay

Employers can only lawfully withhold company sick pay (CSP) where permitted by an employee’s contract, company sick pay policy, or where the employee has agreed in writing. If an employer withholds sick pay without being entitled to this would amount to an unlawful deduction from wages, entitling the employee to bring a claim.

Additionally, if an employer withholds sick pay without following the correct contractual procedure, this may constitute a repudiatory breach of contract which could entitle the employee to bring a constructive dismissal claim (subject to them satisfying the requirements to bring this claim).

Where an employer believes that an employee’s medical evidence is inconclusive, or the employer obtains other evidence suggesting that the employee is fit to work, the employer should look at the contractual wording to determine if they can withhold sick pay.

However, an employer should consider arranging its own medical investigation if in doubt about the reason for the employee’s absence where they have already provided medical evidence.

Conclusion

In summary, if an employer suspects that an employee is malingering they should:

1. Avoid making a knee jerk decision based on reports from social media or other employees;
2. Invite the employee to attend a meeting to discuss their absence;
3. Refer them to occupational health for a report as to their health;
4. Investigate the absence as a matter of misconduct; and
5. Invite the employee to a formal meeting to review the outcome of the OH referral and the reasons for their absence.

Contact our specialist employment solicitors

If you'd like to learn more about the laws around employee illness, or make an enquiry with one of our employment law solicitors, contact our Employment Team today by calling 023 8071 7717 or emailing employment@warnergoodman.co.uk.