Staff Matters

Added to this, senior HR staff surveyed at 241 public and privatesector organisations estimate that 15 per cent (27 million) of sick days were not genuine, costing the country £2.5b a year. So, how should employers deal with employees who they believe are not genuinely ill but are “just pulling a sickie”?

It can often be difficult to prove that an employee was not genuinely ill, so it is important for employers to carry out a thorough investigation to ascertain the facts and gather as much evidence as they can. For example, employers should obtain statements from any employees who have reported that their colleague was seen undertaking activities suggesting they were not unwell, or copies of any incriminating posts from social networking sites.

If a pattern of suspicious absences emerges, the employer could ask the employee to see an occupational health professional or request consent for his or her GP to provide a medical report.

Investigating circumstances

On his or her return to work, an investigation meeting between the employer and employee should be held to allow the discussion of the reason for absence and also to give the employee the opportunity to explain his or her actions. Employers need to be aware of any long-term conditions that an employee may suffer from and give consideration to the possibility that the employee was genuinely unable to attend work, but was not prevented from carrying out other activities.

For example, if an employee suffers from depression and was seen out shopping – as she felt this helped her to deal with her illness – but genuinely felt unable to attend work, it may not be appropriate to take formal action. To discipline in these circumstances could expose the employer to a claim of disability discrimination. It may also assist the employer to obtain medical evidence.

Following a full and thorough investigation, should an employer feel there is a case to answer, careful consideration should be given to how to deal with the situation. Does the employee’s conduct warrant disciplinary action or can it be dealt with informally by drawing a line in the sand and explaining to the employee that any further similar issues will be dealt with via the disciplinary procedure? This often depends on individual circumstances and whether an employee recognises the error of his or her ways and shows remorse for his or her behaviour.

Where an employee has selfcertificated and has taken sufficient time off work to qualify for sick pay, and the employer feels he or she was not genuinely sick and entitled to it, this may amount to an act of gross misconduct for fraudulently claiming sick pay.

Disciplinary action

If the employer decides to take disciplinary action, where practicable (so as to comply with the ACAS Code of Practice), the person who carried out the investigation should not chair the disciplinary hearing. Employers must ensure they act reasonably and follow a fair procedure when dealing with an employee’s conduct under a disciplinary procedure. This is even more important should the allegation be one of gross misconduct, as a potential outcome could be summary dismissal.

It is always advisable to adjourn the disciplinary hearing to give the employer time to consider what has been said and what disciplinary sanction is appropriate. A decision must be confirmed in writing and the employee be given an opportunity to appeal.

Furthermore, the employee should be clearly informed of the standards expected of him or her and the possible future consequences of not meeting them.

• 1. On the Path to Recovery: Absence and Workplace Health Survey (2010). ISBN: 978-0-85201-726-5. www.cbi.org.uk/pdf/20100607-cbi-pfizer-absencereport.pdf