Managing malingerers in the workplace.

The Oxford Dictionary defines the term ‘malinger’ as ‘pretending to be ill in order to escape duty or work’, and we have all seen examples of this, such as staff calling in sick after a Christmas party. However, managing sickness absence can be tricky, and it can be even harder to deal with when an employer suspects that a member of staff is not genuinely ill. Ultimately organisations must be confident and have evidence that an employee is ‘lying’, otherwise alleging this may damage the relationship and result in claims.

One-way employers sometimes seek to deal with malingerers is to look at their sick pay arrangements. In this regard some decide to only pay statutory sick pay (SSP) to staff, which can discourage sickness absence (particularly short-term and/or frequent absences) as employees only qualify for SSP after four days of absence and the amount of pay is low (currently £99.35 per week) and limited to 28 weeks’ absence. However, in a climate were retaining and attracting staff is challenging, employers often want to offer enhanced sick pay, and so this won’t always be an option.

Another tactic is for businesses to withhold sick pay when they suspect a member of staff is lying about their sickness absence. However, it is rarely that clear cut. For example, an employee off work because of stress and anxiety might be seen on social media on holiday. Does this mean they are faking their illness? Possibly not, and instead they might be taking some time to get better and to relax (something that doctors often recommend for stress and anxiety). Therefore, by withholding sick pay employers could face claims for unlawful deduction of wages, constructive unfair dismissal and/or discrimination claims.

Identifying the issue and reviewing evidence

Organisations should initially assess if there is an actual issue of potential malingering as opposed to genuine sickness absence. For example, is the individual always off on a Monday or when a deadline is due, or does the individual have lots of absences or been off a long time with no real explanation? If there is an issue, then what evidence is there? Do your records show a pattern of absences or is there evidence that the individual is off having fun while they are supposedly sick? Holding return to work interviews with staff after every sickness absence can be a good way to identify issues early on and ensures that members of staff know their sickness absence is going to be considered and discussed with them.

Considering whether the member of staff is lying (conduct issues) or may genuinely have health concerns (capability issue)

In Gill v SAS Ground Services UK Ltd the employee was signed off work, and a colleague shared Facebook posts with the employer that showed her attending and actively taking part/working in London Fashion Week. This was clearly a conduct issue as the employee had been economical with the truth, and she was fairly dismissed for gross misconduct.

However, if the evidence is less clear – for example, the employee has a high absence rate with no explanation or is seen out socialising – it won’t be as clear cut. Therefore, unless there is clear evidence the individual is lying, the employer may need to consider undertaking a capability process instead to understand the issues. This is likely to include meeting with the individual to discuss the absences and health issues; obtaining a medical report from a GP or occupational health to understand if there are genuine health issues; considering if any reasonable adjustments need to be made; and dealing with the absence in a proper manner.

Choosing the right method to deal with the issue and acting before it is too late

If there is evidence that a member of staff has lied, the employer should take disciplinary action and may be able to dismiss (subject to a fair process and what the employee says in mitigation). If it is not clear if the individual has lied, then proceeding with caution and getting medical evidence before deciding on how to proceed is sensible. However, either way organisations should act in a timely manner as failure to address the issues and deal with them won’t help.

Having clear policies and procedures

Ultimately, putting in place clear policies and procedures and ensuring you go through them will help deal with any sickness absence within the organisation. It is also important to ensure that line managers are appropriately trained to understand and deal with the issues.