As we head towards the summer months, the combination of warmer weather, sport and other distractions, causes many a HR headache, particularly surrounding the genuineness of employee sickness absence.
Of course, most cases of sickness amongst employees are genuine and it is important that employers exercise their duty of care in allowing employees to recover from both long and short-term sickness. However, perhaps one of the most common questions we are asked about sickness is what exactly is an employee permitted to do whilst absent and more specifically, what can be done if they are spotted in the pub?
Recently this very scenario presented itself in the Employment Tribunals, in Kane v Debmat Surfacing Ltd
Mr Kane was deemed to have been unfairly dismissed by his employer after his employment was terminated when he was seen at a local social club whilst he was off sick. Mr Kane had the lung condition COPD and had told his employer he was ‘in bed with his chest’. Mr Kane stated that he was only at the club for a brief period, however he was dismissed due to his dishonesty following a disciplinary hearing.
Why was this action by the employer deemed to be unfair?
The judge found that there was no evidence that the employer’s disciplinary rules had been breached. The tribunal also held that there was no medical evidence to show that going to the club had either exacerbated his poor health or delayed his return to work- which totalled 3 days.
There were also several procedural errors in respect of the disciplinary process as well. Namely the person chairing the hearing should not have done so, the explanation from the employee that other members of staff had done the same thing and not been subjected to disciplinary action was not given due consideration and the outcome of the disciplinary, namely dismissal, was not deemed to be reasonable.
Does this mean that employees can visit the pub when off sick? Seems a bit unreasonable.
Whilst most of us belong to the school of thought that if you’re off work you should not be out and about. The key thing to remember when dealing with sickness is that employees are too unwell to work, this doesn’t mean that they are under house arrest.
They may still have to pick up children from school, visit their GP, pick up a prescription, go to the supermarket for essential items and so on. Someone with long-term absence, perhaps for depression, may be advised by their medical practitioner to take a holiday for example and it would be unreasonable (and possibly discriminatory) for an employer to take action against the employee or discourage this.
In this case though, the employer was right to question the employee and consider formal action, they just went about it in the wrong way.
We have to balance the duty an employee has to do all they can to get themselves well and of course, the impact on the business, not to mention staff morale, if their colleagues are covering for them or you have had to cancel work due to their absence only to spot them having a wild time on Facebook.
So, this case doesn’t signal the go-ahead for employees to abuse sick pay and leave. Instead, it highlights the importance of ensuring that a fair disciplinary procedure is followed and encourages a more pragmatic approach to managing sickness absence.
What should employers do if they suspect their employee is not genuinely sick?
You should always start an investigation and this is best dealt with on the employee’s return to work.
Enter into an investigation in the right frame of mind and avoid assuming that the employee was ‘pulling a sickie’. If they told you they were bed-bound and you have reason to believe that they attended a birthday party for example either the night before or that evening, ask them about this.
Bear in mind though that there is a world of difference between someone being at the pub, or generally socialising, during their working hours when they have reported as sick and socialising in their own time.
Ultimately it may be appropriate to take disciplinary action against someone and/or withhold sick pay under circumstances like the one in this case. However, employers must act reasonably, be consistent and have a reasonable belief that an act of misconduct has taken place. This is best established having fully investigated the matter and carried out a fair disciplinary procedure.
Top tips on proactively managing sickness absence:
- Ensure your staff are aware of the correct absence reporting procedures
- Ensure you are enforcing those rules around absence reporting– poor absence reporting practices send a message that you don’t take sickness seriously.
- Don’t allow sickness to be reported by text, WhatsApp, email or Facebook!
- Be consistent – don’t allow different rules for some staff or departments. This is a sure-fire way to end up with an unfair disciplinary procedure and high absenteeism.
- Have return to work interviews, even for absences of one day. Return to work interviews are a very useful tool in managing absences.
- Make sure you take advice from our experts before taking disciplinary action or withholding payments- remember statutory sick pay is a statutory payment, so you have to have justifiable reasons for not paying it.