Employee Pulling a Sickie? You Do Have Options…

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An employee has phoned in sick. They’ve followed all the correct reporting procedures, but you have your suspicions that they are “pulling a sickie”. There isn’t much you can do about, is there? A recent Employment Appeal Tribunal may lead you to believe that is no longer the case. The employee in question claimed that he had slipped at work, but his employer suspected that he had exaggerated the severity of the incident and arranged for covert surveillance whilst he was on sick leave.

Underpinning this case was the employer’s reasonable belief that the employee had overstated the extent of his injuries and also that he had fraudulently claimed company sick pay and made a bogus claim for an injury at work. The employee was summarily dismissed on the grounds of gross misconduct.

The Employment Tribunal upheld the claim against the employer because its decision concentrated on the employee’s ability to do his job. However, the Employment Appeal Tribunal overturned this judgement based on the fact that the employee had committed gross misconduct.

If faced with a similar situation, what should an employer do?
  • Have a clear and consistently applied absence policy in the employee handbook, including a statement that untrue or exaggerated allegations of sickness may be treated as gross misconduct.
  • Carry out an immediate and thorough investigation and obtain appropriate medical advice.
  • Have an employment contract that includes a clause requiring employees to consent to medical examinations by a doctor nominated by the company where required.
  • Clarify that, if required, assessment by the company’s nominated doctor is mandatory in order to be eligible for company (but not statutory) sick pay.
  • If the findings of the investigation indicate that there is a case to answer, conduct a fair disciplinary process ensuring the employee is afforded their statutory rights.

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