Sun, Sea and Sickies

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28 Jul 2016

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With the much anticipated arrival of summer, employers may find that employees are increasingly tempted to make the most of the nice weather by calling in sick. Such non-genuine absences can be incredibly costly to businesses in terms of lost working days as well as having an adverse effect on other staff. How should employers deal with employees who they believe are “pulling a sickie”? It can often be difficult to prove that an employee was not genuinely ill and therefore 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, by obtaining statements from other employees who have seen the employee undertaking activities which suggested they were not unwell, or copies of any incriminating posts on social networking sites. If there is a pattern of suspicious absences, the employer could ask the employee to see an Occupational Health Professional or request consent for their GP to provide a medical report. Upon the employee’s return to work, the employer should hold a meeting with the employee to discuss the reason for their absence and also to give them the opportunity to explain their actions. Employers need to be aware of any long term conditions that an employer may suffer from and must 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 a mental health condition and was seen out shopping as they felt this helped their recovery, but genuinely felt unable to attend work, it may not be appropriate to take any formal action. To discipline in these circumstances, could expose the employer to a claim of disability discrimination. Employers may find it beneficial to obtain medical evidence to help them understand the nature of an employee’s condition and to identify ways in which they can support employees. Following a full and thorough investigation, should the employer feel that there is a case to answer; consideration needs to be given as to how the employer wishes 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 will often depend on the individual circumstances and whether the employee recognises the error of their ways and shows remorse. Where an employee has self certificated and has taken sufficient time off work to qualify for sick pay, and the employer feels that they were not genuinely sick and entitled to it, this may amount to an act of gross misconduct for fraudulently claiming sick pay. 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 that 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 decide what disciplinary sanction would be appropriate. The decision must be confirmed in writing and the employee be given the opportunity to appeal. Furthermore, the employee should be clearly informed of the standards expected of them and the possible future consequences of not meeting those standards. For more information on how Croner can provide HR advice and disciplinary support, please call 0800 032 4088.

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