The Legal Position
Fundamentally, if an employee lies or even exaggerates an illness or injury and relies on this in order to ‘pull a sickie’, this is potentially grounds for dismissal. This is on the basis that it amounts to a breach of the implied term of mutual trust and confidence within the employment relationship. It may also be covered under the examples of gross misconduct in an employer’s disciplinary procedure, with potentially relevant examples including dishonesty and fraudulently claiming sick pay. If an employer is able to establish a reasonable belief in one of these fair reasons for dismissal, then subject to the employer exercising a reasonable investigation and following a fair procedure, then the employer will usually be able to fairly dismiss the employee.
Genuine Sickness Absence or ‘Pulling a sickie’
The difficulty with the above legal position is that an employer must have a reasonable belief that the employee is either lying about being sick or injured, or exaggerating the seriousness of the sickness or injury. Practically speaking, this can be very hard to evidence. More often that not employees will not make the mistake of posting evidence of this on their social media accounts or divulge anything to their colleagues. As such, without evidence, there is a significant risk that in dismissing an employee as outlined above, the employer will be opening itself up to lengthy and costly claims in the Employment Tribunal.
Preventative Measures
With this significant risk in mind, an employee’s best tool in deterring an employee from ‘pulling a sickie’ must be having in place robust policies and procedures which will serve as both a preventative measure to the employee and protection for the employer.
Preventative measures may include:
Consider offering staff the opportunity to book a certain number of days unpaid leave or the chance to buy additional holidays. A planned absence is always easier to manage than unscheduled absence.
Flexible working – if appropriate, consider allowing employees to work from home or shift their working hours around perhaps to fit around school hours or term times. It is established that flexible working can bring a business a lot of benefits, including better retention rates, reduced costs and improved productivity.
Consider providing a bi-annual reminder to employees about the processes they are obligated to follow. This may be enough to deter employees from faking or exaggerating illness or injury.
Make sure you have robust sickness absence reporting produces in place and carry out return to work interviews. This is often the best way to deter employees from feigning sickness and also to pick up on suspicious behaviour. A return to work interview should put the following questions to the employee:
- How are you now and are you able to carry out normal hours and duties?
- What was the possible cause of your sickness absence and what action have you taken to avoid any future occurrence?
- Did you consult a Doctor or medical professional?
- Are you on any medication which may affect your performance?
- Do you feel that there is anything we can do to support you?
Work-Life Balance
In addition to the above preventative measures, it is no secret that a happy workforce is considerably less likely to consider ‘pulling a sickie’. Therefore, ensuring that your workforce is content and motivated in their roles can be an extremely effective tool in managing sickness absence. You may have recently seen the BBC article regarding the dating website Bumble providing its staff with a week’s paid leave to reduce the risk of burn-out after an extremely busy period (link below). Of course, I appreciate that this is a radical measure to adopt, but taking steps to ensure that your workforce understand that their efforts are appreciated will no doubt have a positive impact on the risk of the ‘sickie’.
Bumble closes to give ‘burnt-out’ staff a week’s break – BBC News
Conclusion
In conclusion, the detrimental impact of unscheduled, repetitive and short-notice periods of leave due to employees ‘pulling a sickie’ cannot be understated. Ensuring that an employer is able to address this issue both reasonably and fairly is critical to ensure that it does not expose itself to future Employment Tribunal claims.
