The first Monday of February (today) is National Sickie Day – a day that statistically sees the highest number of employees phoning into work ill.
Laura Kearsley, Partner in our Employment Law team, answers some of the most important questions companies should be asking if they believe one of their employees is faking illness.
Employee Faking Illness
What can I do if I suspect an employee is pulling a ‘sickie’?
If you think an employee has taken time off as sickness absence when they are not genuinely ill, you can ask them for further details about their illness or ask them to provide evidence from their GP.
If you are still not convinced by the responses that are given you can deal with it as a misconduct issue under your disciplinary procedure. Typically, this would involve carrying out an investigation into the misconduct, conducting a disciplinary hearing and, if a warning is given, allow them the opportunity to appeal.
In some cases, this could result in the employee being dismissed, especially where their misconduct has been particularly serious or they have received warnings in the past.
An employee has phoned in sick but is posting pictures on social media – what shall I do?
In these circumstances it can be easy to jump to conclusions. Photos are not always posted on social media at the time they are taken and some illnesses are more visible from photos than others.
For example, if an employee phoned in sick with a broken leg and then checked into a ski resort, posting a photo of them on the slopes later that day, that would appear to be convincing evidence that their illness was not genuine.
On the other hand, if an employee is off due to stress and they post a photo of themselves on a walk in the countryside, this is not necessarily inconsistent with the illness they have reported to you. In fact, it may be beneficial for that employee to be getting some fresh air and exercise rather than staying at home.
In each case it is important to investigate first without assuming the employee has been dishonest. If you have seen social media posts of them that you think are inconsistent with the information they have given you, ask them about it, perhaps as part of a return to work meeting or welfare meeting, as they may have a legitimate explanation.
If not, you can then decide to take further action and commence a more formal investigation with the social media posts being considered as evidence.
How should employees be reporting their absence?
It is important that your employees report their illness in advance of the time they start work. You should have a specific policy in employee contracts or handbook setting a deadline and designated person who members of staff should call.
When do employees need to produce a note from their GP?
If an employee is ill for seven calendar days or more, they will need to supply you with a GP’s fit note as evidence of their illness. For absences of seven days or less, staff members can self-certify and employers may ask employees to complete a self-certification form upon their return to work.
When is an employee entitled to sick pay?
Those who are employed, earning at least £116 a week and have been off work for four consecutive days, are entitled to Statutory Sick Pay (SSP). The current rate of SSP is £92.05 per week and can be paid for up to a maximum of 28 weeks for the days employees usually work. SSP is payable after three ‘waiting days’ of absence.
It is up to employers – and should be set out in contracts – whether they pay more than SSP and if they do, on what basis. For example, payment of full or half pay during sick leave might depend on whether an employee has passed their probationary period.
Should I be contacting employees during sick leave?
There is no rule that says an employer cannot contact an employee during a period of sick leave. Many employers genuinely care about the welfare of their staff and like to stay in touch on that basis. You may also want to be kept up to date on the likely period of absence so you can plan workflow and cover accordingly.
However, contact should be handled sensitively, particularly where someone is suffering from mental health problems or work-related stress and might find regular contact from their employer distressing.
Where possible, it is a good idea to seek to agree on a level of contact during sick leave that is acceptable to both parties.
How Can Nelsons Help?
Laura Kearsley is a specialist Employment Law Partner at Nelsons.
For further information or to speak to a member of our Employment Law team, please call 0800 024 1976 or contact us via our online form to discuss your issue in more detail.