Sanctions and the sickie: What to do if you think your ‘ill’ employee is not actually unwell

As statistics have it, the first Monday in February is ‘National Sickie Day’ – the most likely day for employees to pretend to be unwell for a day off work.

Employer actions

As an employer, what do you do if you suspect that an employee, who is absent from work due to illness, is not actually unwell? Perhaps you have an employee who is routinely ‘sick’ on Mondays and Fridays, or perhaps it’s reported to you that the social media profile of an unwell employee suggests that they are not actually at home convalescing, as claimed.

Contrary to popular belief, employees are only entitled to sick leave when they are actually too unwell to work.  Therefore, any employee ‘pulling a sickie’ is not entitled to sick leave, nor any associated sick pay. If an employee claims to be sick when they are not, their absence is unauthorised, and this may amount to a breach of contract which employers are entitled to investigate and act on.

If this is the case, employers should undertake a full, fair and thorough investigation into any allegations against the employee who you suspect may be lying about their illness. If the investigation concludes that there is a case to answer, the allegations, investigation report and evidence collated should be presented to the employee, and they should be given the opportunity to respond to the allegations at a hearing. A decision should be made on the basis of the evidence presented at the hearing.

Pulling a ‘sickie’

If the employee is found guilty of ‘pulling a sickie’, the level of the sanction will depend on the nature of the offence. For example, for a first time offence, a written warning may be sufficient, but dismissal may be considered for serial offenders.

It is therefore important for employers to have a comprehensive policy in place that details the procedure to be followed if it is suspected that an employee is claiming to be absent from work due to illness when they are not, in fact, unwell.

According to a recent survey by Time 4 Sleep, 61% of participants have ‘pulled a sickie’ to recover from a hectic work schedule, so it may be more common than you think. Interestingly, in a bid to retain the best staff and maintain morale and productivity, some innovative employers have introduced the concept of a ‘duvet day’ entitlement. This allows employees to take certain number of ‘duvet days’ a year, to be used when they are contemplating pulling a sickie. This type of policy reflects the change in trend to create more flexible working arrangements in the workplace.

For more detailed, tailored advice on the above or any related topic, please contact us and we’ll be delighted to advise you.

Jenny Hawrot, associate solicitor in our Legal 500-rated employment law team, advises clients from SMEs to national organisations on the full range of employment-related matters, including TUPE, contractual matters and defending employee relations.