Making it tricky for employees to “pull a sickie”

Managing Sickness Absence

Picture the scene.  It’s Friday and it’s the middle of August.  You get into work bright and early.  There’s a busy day ahead but you know all your staff are going to be in and that together you will get the job done.  Then you get the call:  “I’m sorry boss, I can’t come in today – I’m feeling really sick and spent most of last night with my head in a toilet”.   You offer your sympathies – you hope they won’t be poorly all weekend – but you can’t help but notice there is some very loud music playing in the background, live music unless you are very much mistaken.  The employee hangs up and after a few minutes, it dawns on you – it’s the Isle of Wight/BoomTown/Reading (insert other) festival this weekend and it’s been all the talk at work for the past week or so – they have only gone and pulled a sickie.

Jokes aside – summertime, festival season, school holidays – it’s that time of year when absenteeism is at its highest, causing employers all over the country a real headache.   The question is, what can you do about it?  Here is our brief guide on how to manage employee absence in the most challenging of seasons.

The legal position

If an employee makes up or exaggerates an illness or injury in order to “pull a sickie”, this is potentially grounds for dismissal.   The reason for this is that it amounts to a breach of the implied term of mutual trust and confidence that is the foundation of an employment relationship.  It also may well be covered under the examples of “gross misconduct” in an employer’s disciplinary procedure (e.g. dishonesty, fraudulently claiming sick pay).  An employer will usually be able to fairly dismiss an employee in such circumstances if, following a reasonable investigation, it has reasonable grounds for belief in the misconduct and the misconduct in question was sufficiently serious to merit dismissal.

Genuine sickness absence vs “pulling a sickie”

Clearly, no employer wants to suggest to an employee who is genuinely sick that they are not.  The problem is that is very difficult to prove when an employee is faking it.   Do you engage a private detective to put the employee under 24-hour surveillance?  Of course not.  And most employees are clued up enough to know that you don’t put on Facebook, twitter, Instagram etc. anything that you should not be doing and/or that you don’t want your employer to know.  Besides which, trawling through the Facebook and twitter accounts of your staff for the sake of finding out if they were surfing the crowd at a festival or shivering under a duvet is probably not the best use of your time.

So, if you don’t have the evidence, what can you do?   The answer is that there is no quick fix but, this is where the “return to work interview” comes into its own.  This is something we have long advocated as a key tool in the employer’s..erm..toolbox (excuse the clumsy metaphor) for managing sickness absence.

The return to work interview consists of a few simple questions such as:

• 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 (work/accident or personal)?
• Did you consult a Doctor or other medical practitioner?
• Are you on any medication which may affect your performance?
• Do you feel that there is anything we can do to support you?

Whilst it is unlikely that an employee will confess to “pulling a sickie”, once an employee realises that their absences are being monitored, they may be sufficiently embarrassed not to do it again.

Can you dismiss an employee who you suspect has dishonestly taken a sick day?

As mentioned, “pulling a sickie” is a potentially fair reason for dismissal.  However, in reality, it is quite difficult to dismiss an employee for this reason.   The answer depends on a number of factors – mainly what evidence you have to suspect that the employee has been falsely claiming sickness absence, but also, how long the employee has been with you and what your disciplinary procedure says.   It will come as no surprise that there is not a “one size fits all” approach.

With temporary or seasonal staff, the risk of potential claims resulting from a decision to dismiss in such circumstances is, in the majority of cases, fairly low.   Employees need 2 years’ continuous employment to bring an unfair dismissal which temporary staff will not have.   However, employers always need to bear in mind the potential for discrimination claims. These type of claims do not require any qualifying period of service and can also be brought not only by employees but workers (e.g casual staff) too.  To minimise the risk of such claims being brought, the best practice is to follow your formal disciplinary procedure and hold a disciplinary hearing -that way, if there is anything pertinent that you weren’t aware of before, it is likely to come to light at the hearing.

In so far as permanent staff are concerned, unless you have evidence that an employee has falsely claimed a day off sick (which in most cases you will not), a mere suspicion will not be enough to take disciplinary action.  Instead, you should keep a record of these short-term absences, consistently carry out return to work interviews and, if the number of short terms absences reach a certain point, consider whether the circumstances warrant taking formal action, either under your disciplinary procedure (if there are grounds to suspect dishonesty) or attendance management procedure.  Many employers find “the Bradford factor” formula as a useful way of monitoring an employee’s absence and flagging up when an employee’s level of absence gives cause for concern.   However, with persistent short-term absences, it can be easy to overlook the fact that there may be a pattern emerging.  It is important to consider whether there is an underlying health condition giving rise to the absences or a reason which is not health-related but is nonetheless just as valid– for example, a problem with a colleague or manager or workload.  These kind of circumstances warrant further inquiry rather than going down the route of a formal disciplinary or attendance management procedure.   On the other hand, the pattern may reveal that the employee always seems to call in sick either before or after a bank holiday or when they return from annual leave or when there’s a big festival on.  It is when this sort of pattern emerges that you have a legitimate reason to carry out an investigation and potentially take disciplinary action.

What can employers do to reduce sickness absence during the summer months?

Unless you have evidence of dishonesty, there is only so much you can do to prevent employees from taking a “sickie” during the summer months.   Even if you do, particularly where seasonal staff are concerned, there is the question of whether you can afford to let them go when you have gone to the time, effort and expense of recruiting extra staff to cover the peak season – and it may be hard to find new staff at short notice.

There are a few things that employers can do to try and avoid being short staffed during what, for many businesses, is a time of peak trading.

• If you employ seasonal staff or if your business is seasonal, ask staff at the outset if there are any days or weekends that they cannot work over the summer. Although this may seem counter-intuitive, it can help to organise rotas and arrange cover in advance, thereby avoiding one of the main problems caused by unexpected absences.
• Make sure you have a robust sickness absence reporting procedure 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 any suspicious behaviour.
• Consider providing a timely but gentle reminder to your employees about the processes they are expected to follow. This in itself may be enough to deter employees from faking illness to make sure they don’t miss their favorite band at a festival!
• Flexible working – consider allowing employees to work from home or shift their working hours around during the summer holidays. It is well known that flexible working can bring businesses a lot of benefits including better retention rates, reduced costs and improved productivity.
• Consider offering staff the opportunity to book a certain number of days unpaid leave or the chance to buy additional holidays. As mentioned, planned absence is always easier to manage than unscheduled absence.

As always, if you need advice on how to handle sickness absence, persistent or otherwise, please contact the team at Real Employment Law Advice.

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!