Ongoing COVID-19 restrictions may make it more difficult for employers to identify malingering – where an employee lies about or exaggerates an illness to avoid attending work.
As we continue to navigate the pandemic in our working lives, there are more genuine reasons for employees to take time off work, such as government-defined self-isolation periods and COVID-19 related illness. These unusual circumstances combined with increased remote working, and lack of real-life interaction between staff members, may make it harder to detect and prove instances of malingering.
If you suspect an employee is faking illness to avoid work, you will need enough evidence to prove this before beginning any disciplinary action. Here we summarise the steps you can take to gather proof, as well as deter malingering.
Malingering: Real illness or fake illness?
You will need to follow a different process depending on whether you believe an absence is down to genuine or fake illness.
Cases of frequent short-term absences can have a disruptive effect on business, but where you believe the reasons for absence are real, these should be dealt with through your absence management procedures. Employees who are faking illness however should be dealt with under your disciplinary processes as this is a conduct issue.
What to do if you suspect an employee is faking illness
If you suspect an employee’s absence is not genuine, do not act rashly on your suspicions. You will need proper evidence before embarking on any disciplinary action.
It is important to keep in mind the legalities that will apply when using these methods along with applying some reasonable processes to ensure that employees are dealt with fairly and to deter repeat offences.
KEEP RECORDS OF SICKNESS ABSENCE
Keeping accurate record of sickness absence is a fundamental to any absence management programme. This will help you notice any patterns and enables you to confront employees with factual data for them to explain.
Even if you spot particular patterns emerging, be careful not to jump to conclusions. You will still need to gather clear evidence before taking disciplinary action.
Conduct a return-to-work interview after every absence. This will give you chance to ask questions about the absence, especially if you have noticed frequent short-term absences or recurring patterns.
Having to attend an interview to explain each absence may act as a deterrent to those who are faking illness.
ASK FOR MEDICAL EVIDENCE
For absences of seven days or less, employees can self-certify, and employers can ask employees to complete a self-certification form upon their return to work. If an employee is ill for seven calendar days or more, they will need to supply a note from their GP as evidence of their illness.
Where you are dealing with repeat patterns of absence, you may be able to obtain a report from either a GP or an occupational health professional to check for underlying health conditions which could explain the pattern.
If you are given vague or unsatisfactory explanations for absences, you can ask for medical evidence. You will typically need the employee’s written authorisation to obtain medical evidence, and this may deter employees attempting to manufacture reasons for absence if they know they will be held accountable.
If the employee refuses to consent to medical evidence without explanation, you should make them aware that you will have to make decisions based on the evidence available.
BE CAREFUL WITH SOCIAL MEDIA
Employers often cite activity on social media as proof of malingering. However, you should be wary about relying on social media for gathering evidence. Potential data protection and privacy issues can arise, and you should only seek relevant information.
Do not make assumptions, or take potential evidence at face value, as there may be contexts you are unaware of. For example, if an employee posts a photo of themselves on a walk on the day of absence, this could be due to the fact that fresh air and exercise may help have been recommended to help them recover.
If you find social media posts that don’t seem compatible with their claims, you should speak to the employee about the conflicting information and give them the opportunity to offer an explanation.
CONDUCT A THOROUGH INVESIGATION
Allegations should be investigated in the same way as any other allegations of misconduct. Do not make assumptions, and conduct a thorough investigation before taking any disciplinary action.
Investigations should be handled sensitively, particularly if an employee is off due to work-related stress, or mental health problems.
Conducting a reasonable and thorough investigation is vital step in any disciplinary process. Employers should be aware that failure to do so, could result in a claim for constructive dismissal from employees with over two years’ service on the grounds that the allegations amount to a breach of trust and confidence.