In the pub while off sick? What to do when staff fake illness

Kate Palmer - HR Advice and Consultancy Director

July 06 2021

You might have seen the recent story in the news: that “going to the pub while off sick isn’t a sackable offence.”

In case you haven’t, a man called into work sick and claimed he ‘had been in bed all day’ with a bad chest. But on that day, a colleague spotted the man in a social club drinking alcohol.

As a result, his employers fired him for lying and flouting company rules.

While that might seem like a clear cut case, a tribunal recently ruled that he had been unfairly dismissed. Read on to find out why – and what this means for your business…

Wait, why wasn’t it a sackable offence?

As the case went to court, the employment tribunal found several holes in the employer’s defence.

The court ruled that:

  • There was nothing in the company’s rules that specifically banned an employee from socialising while off sick.
  • Other employees may have demonstrated similar behaviour – and didn’t face disciplinary action – in the past.
  • The manager who dealt with the initial complaint shouldn’t have carried out the disciplinary meeting.

The judge commented that the employer:

“made a gross assumption, without evidence, that the claimant should not be at the social club because of the nature of his condition.”

So without having clear guidance in place, the man didn’t realise he breached company rules.

While this might seem like an obvious case for dismissal, the employer didn’t have any policies in place to prove their employee knowingly broke the rules. And as a result, they now face losing thousands in compensation. 

Create watertight sick leave policies

When an employee lies about the state of their illness, it’s understandable you want to take action.

For example, a staff member could claim to have a bad case of the flu – and you later spot them enjoying a pint on social media.

However, the court case shows that it’s not always as simple as dismissing staff for pulling a sick day. You need to have policies in place that prevent staff from acting dishonestly.

This could include prohibiting staff from using sick leave for activities that aren’t appropriate for their illness. If you choose to do this, it’s essential you add this to your sick leave policy.

It’s worth bearing in mind the type of illness. Because while you wouldn’t expect a flu-ridden employee to enjoy a day at the park, it’s different when staff are off due to mental illness.

Activities like taking a walk or spending time with friends can help people dealing with poor mental health. So in this situation, it’s best to use your discretion and offer more flexibility. 

It’s all about consistency

The court ruled against the employer for being inconsistent.

So when you suspect an employee is off sick without actually being ill, you need to consider whether you’ve handled this before. If you’ve turned a blind eye in the past, it’s risky to take disciplinary action for a different staff member.

For example, you might think senior members of management have more freedom to take sick leave – whether or not they’re actually ill. After all, they pull those 12-hour shifts all the time…

But no matter who phones in sick, the same rules should apply. Following a rigid sick leave policy can help you avoid accusations of unfairness or costly legal claims.

Have a robust sick day procedure

With a well thought-out sickness procedure, you can prevent employees faking sickness.

For example, holding a ‘back to work’ interview shows you take sickness seriously. This is an informal meeting to see whether your employee is fit to return to work and flags up any serious health conditions.

This could reduce fake sickness claims, as staff would probably rather avoid lying in a face-to-face meeting when they return.

Consider mental health

Staff might not feel comfortable discussing mental health. So it could be that your employee felt mentally unwell and used their physical health as an excuse to take the day off.

That’s why it’s best to talk to your employee in private before you take any disciplinary action. Make it clear that you’re there to support them without any judgement.  

If your employee is struggling with their mental health, encourage them to use counselling or direct them to an Employee Assistance Programme.

Track the number of sick days to spot any patterns

When an employee phones in sick, it’s important you record it.

This helps you track their total amount of sick days and spot any patterns – like if an employee calls in sick an above-average amount or only on certain days of the week.  

If your employee is off sick a lot, consider whether any workplace factors could be contributing. For example, an unreasonable workload or toxic atmosphere could be why your employee wants to avoid work.

So again, it’s essential you speak to your employee first to see whether you can help. They could flag up serious issues going on within your workplace.

With BrightHR absence management tools, you can track the amount of sick leave any staff member takes at the touch of a button. So if sick days start to become a problem, you’ll know straight away.

Get expert employment law support

The laws around sick leave are surprisingly complex. So while it might feel natural to discipline staff for faking sickness, you could face a costly legal battle as a result.

That’s why it’s essential you speak to an employment law expert before you do anything. To get free and confidential advice today, call on 0800 028 2420.

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