May 5

Social media and its role in dealing with malingerers…..!

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Managing sickness absence is rarely a straightforward task and dealing with someone that you suspect is not genuinely ill has always been very tricky.

From the colleague whose weekend of hard partying regularly translates into a “stomach bug” on Monday morning, to the workmate who conveniently develops a migraine whenever a deadline looms, they are in every office. However, while managers are always keen to present their suspicions about malingerers, obtaining credible evidence to back up their suspicions is challenging which makes taking disciplinary action for misconduct very difficult.

Step 1: Identify and assess potential evidence

The first step when dealing with suspected malingerers is to identify and capture available evidence to support the suspicions. An employer who has evidence that an employee is being dishonest by claiming to be off sick when he or she is not, may be able to discipline or dismiss for misconduct.

However, mere suspicions and rumours will not suffice to establish misconduct and credible evidence needs to be obtained – something that has become easier with the burgeoning of social media over recent years as it has the potential to provide a generous source of possible evidence. Data protection and human rights laws do, however, mean that employers need to be careful if, and how, they use this type of evidence.

If evidence from social media is presented to the employer, perhaps via another employee, the employer can use it in the same way as it would any other anecdotal evidence or employee tip off. For example, in a recent case a colleague printed off Facebook entries showing that the employee was attending London fashion week, auditioning models for her own agency and choreographing a fashion show, whilst signed off sick from her work. The tribunal held that the employer was allowed to use this evidence in their disciplinary investigation, and the employee was sacked for gross misconduct.

The credibility of the evidence retrieved from social media will need to be tested in the usual way – for example, did the tip-off come from an employee with a grudge to bear, has the information been taken out of context and are the dates of posting accurate?

Many employers also usually reserve the right to monitor work email accounts but a recent case has highlighted that if information gleaned this way is to be used, then employers need to make sure they act in a proportionate way, balancing an individual’s right to privacy and the employer’s business interests and considering if there is a less intrusive way of achieving the employer’s aim.

Step 2: Review the evidence – is it capability or conduct?

The tribunal recently, helpfully, reiterated for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. If your evidence of malingering looks robust and credible then you should be able to start a disciplinary process for misconduct.

However, a lack of evidence of dishonesty does not mean that an employer is powerless to challenge an employee they suspect is not really as ill as they claim. People will often continue to take unwarranted time off where they believe their absences are passing unnoticed.

Employers can address this by ensuring that return-to-work interviews are carried out following each occasion of absence and encourage line managers to probe further (or push for medical evidence) if faced with evasive or inadequate answers.

For example, you could:

- Ask questions (involving the employee’s GP or occupational health if necessary) about the typical symptoms and development of the health condition and whether the individual is affected in an atypical or unusual way.

- Raise discrepancies between the individual’s stated condition of health, their presentation at interview and any previous reports or documentation.

- See if the individual is co-operating with medical evaluation and treatment (reluctance to do so can be a sign of malingering) and, if not, is there any good reason for this?

Such probing needs to be done carefully. Too blunt an approach, without back-up evidence, carries with it the risk of a claim of a breach of the implied term of mutual trust and confidence (and potential discrimination). However, making it clear to the employee that their repeated absences are not going unnoticed can do wonders for attendance.

Step 3: Give evidence of misconduct, but do not jump the gun

Where an employer believes it has evidence of dishonest behaviour, it is important not to jump to conclusions. Remember that employees do not have to be bed-bound, or even at home, in order to be unfit for work.
An employee posting pictures of himself on holiday or doing sport or other leisure activities may still be genuinely unwell. Many health conditions do not improve as a result of lying in bed – indeed some conditions, for example, mental health issues or bad backs can improve with exercise. Therefore, it is important to carry out an investigation, as you would for any other allegation of misconduct.

Spotting malingerers – potential signs

- Patterns of absence, such as the same day each week.
- Triggers for absence, such as being invited to a disciplinary meeting.
- Reluctance to provide medical evidence or attend appointments.
- Posts on social media.
- Tip-offs from colleagues.
- Reports of activities that seem inconsistent with ill-health, for example: undertaking other work; going on holiday; doing DIY or sport.

Two recent cases highlight this point. In one a community midwife, signed off work due to a knee condition, continued in her second job which was desk-based, one evening a week, and at a time when she would not have been working as a midwife, so she was not being paid twice for the same hours. It was concluded as perfectly acceptable for her to have carried on in the second role, while signed off sick from her role as midwife, so her dismissal on those grounds was unfair.

On the contrary, a hospital consultant was signed off from her NHS role, but still continued to work in a private hospital, while claiming sick pay from the NHS. The tribunal found her behaviour constituted gross misconduct.

Step 4: Remember to follow your procedures

It is imperative to follow a fair procedure however cut and dried the evidence appears. Before disciplining or dismissing the malingering employee for misconduct, you need to follow your own procedures and the Acas “Code on discipline and grievance”, as you would do in any other disciplinary scenario.

You will need to put the evidence to the individual, hear their explanation and consider if that explanation requires further investigation; in this kind of situation, medical evidence may well be needed. You also need to consider the individual circumstances of the case and any mitigating points, such as length of service and previous disciplinary history, as well as how similar cases have been dealt with in the past.

Managing malingerers will never be easy, but the rise of social media and people’s seemingly unquenchable enthusiasm for sharing their lives through this has brought with it a useful source of evidence for employers. Used correctly, it may prove the previously unprovable and may encourage employees to think twice before phoning in with that Monday morning “stomach bug”.