Your employee is off work due to sickness but is seen at a public event enjoying herself.  Does this mean she is skiving?

This question was raised by the employers of a nursery worker who was spotted by her bosses taking part in the Commonwealth Games opening ceremony last year, dressed as a giant tea cake, at a time when she was unable to work due to tonsillitis.  We don’t know what action, if any, was taken against the nursery worker, but that case raises interesting issues for businesses.

Most employers require their staff to speak to a manager if they are too ill to come into work and to ‘self-certify’ the reason for their absence for up to 7 days once they return to work.  Employees who are absent for over a week, generally have to obtain a fit note from their GP which should set out the nature of their illness and how long the employee is likely to be off work. 

Status of fit notes

Employers are required to accept a fit note at face value unless they have convincing evidence which casts doubt on whether the employee is genuinely ill.

‘Evidence’ is more likely to be in the form of Facebook updates these days, but can also include the employee being spotted by a co-worker shopping, walking in the park or sitting in a pub etc.  Colleagues are often keen to alert their managers to any perceived inconsistencies between a colleague’s absence and their behaviour whilst off sick, particularly if their own work load has increased as a result. 

Ill employees are not necessarily confined to their beds

Before your manager jumps to the conclusion that a worker signed off sick seen at the local cinema is pretending to be ill or exaggerating their symptoms, it is worth remembering that not all illnesses incapacitate a person to the extent that they need to stay in bed, or remain at home.  This is particularly true of long term conditions, such as stress or depression.

Being able to go enjoy some social events is not necessarily incompatible with an individual being too ill to return to work.  Clearly, you might want to ask some questions of an employee, signed off sick due to chronic back pain, being able to run a marathon, gyrate on the dance floor or teach yoga.  That would be entirely reasonable.  However it is unlikely to be reasonable to ask the same employee to explain how he is able to walk around the shops or go out for dinner.  Plus, some health conditions benefit from the individual taking exercise or getting out of the house and employees may be following their doctor’s advice.

Obtain medical evidence

Even if one of your managers does have reasonable doubts about an employee’s condition, he/she must not assume or accuse the employee of lying. 

For long term conditions, it is helpful to obtain a medical report which you may be able to use to challenge the employee’s assertion that he remains too ill to work.  Generally, it is better to obtain a report from a health professional not treating the employee who can review the employee’s condition through impartial eyes, rather than from the employee’s own GP. 

Managers should not instigate disciplinary procedures against an employee, without first seeking guidance from HR or a legal advisor.  If mistakes are made at this stage, the employee could resign and claim constructive dismissal, or bring a claim for unfair dismissal/discrimination if they are subsequently dismissed.

Back to work interviews

All staff should be asked to attend a back to work interview after any period of illness. 

This is particularly important for those off sick for a short period.  Employees should be asked to explain any inconsistencies between the reason given for their absence and any observed behaviour.  For example, employers are likely to want an employee who said he was too ill to get out of bed to explain how he was able to attend a live music gig.  If the employee is unable to give a satisfactory answer, it might be appropriate to instigate the disciplinary procedure.

If in doubt, seek advice

Involving HR or legal experts at an early stage will help to minimise risk to the business.