From 26 January 2022, employees who are on a period of sickness (provided that period starts after 26th January) can self-certify sickness for up to 28 days. Previously, for a period of sickness extending to more than 7 days, including weekends, the employee needed to attend a GP for a "fit note" to confirm that they would not be fit to attend work.

The move is stated to be a temporary measure, designed to ease the burden on GPs during the coronavirus pandemic. However given the current strain on the NHS it is not unrealistic to presume that the measure may be with us for the long haul (though that is an opinion and the government have not commented on this as of yet). However even in the interim whilst this is a short-term measure, there is an issue for employers. It is not uncommon that employers find employees take several periods of sickness just below 7 days, so that they can self-certify. The common belief is that they are doing this to get additional time off work, where a fit note would prove they were actually never sick in the first place. This practice is generally known as "malingering". There is therefore a concern amongst employers that these types of employees may now take increasingly lengthy periods of sickness - missing almost a month of work at a time.

So what is an employer to do?

Firstly, I think I should make clear that malingering, whilst very real, is also very rare. Malingering is an act of dishonesty either intending to avoid work or to gain financial benefit from the company e.g. sick pay and would, if proven, be a matter of misconduct, in which sanctions or potentially dismissal could be imposed in accordance with your disciplinary procedure.

However, as with all matters relating to employees on sick leave there is always a concern that the employee may be genuinely ill and perhaps suffering from a disability, and therefore any detriment placed upon them as a result of their sick leave may be discrimination in accordance with the Equality Act 2010.

When malingering is suspected, an employer should carry out a thorough investigation, which would likely include: -

1. Collate evidence from the employee's sickness record e.g. did they always previously take 6 days off sick and then up that to 27 days as soon as the rules changed? This circumstance where the employee is in every case taking just shy of the amount of time which would require them to seek a medical opinion may be sufficient to arouse the suspicion of the employer;

2. Have in place a good sickness absence procedures. I am a huge advocate of the “return to work interview” for a number of reasons  Firstly, where an employee is not genuinely sick, you have put them "on the spot" to explain where they have been and what has been going on.  Further, it may assist you to assess patterns of behaviour, and where an employee is genuinely sick it may assist you to identify ongoing issues or reasonable adjustments which are required, and it may open up open dialogue between employee and employer. For example, many employees suffering with mental health problems or stress at work will often lie about their reason for sickness e.g. saying they had cold. Having regular, open discussions with them may encourage them to tell you what is going on.

3. Obtain a medical report - provided your employment contract allow you to do so, or the employee gives consent, you could obtain a report from a GP or occupational health therapist discussing the employees medical history and ability to work as well as any reasonable adjustments. I would tend to suggest an occupational health over a GPs report, because the occupational health therapist is an independent person and GPs may be more biased towards the employee's account.

How do you identify a malingerer?

It is extremely difficult to spot a malingerer, but there are a number of factors which may indicate need to investigate further: -

• The occupation health report/medical records do not accord with the employees account. For example, if an employee has told you they have been to see a doctor but there is no record of a doctor's visit around that date, that may be enough to arouse your suspicion, and if this happens on a number of occasions, it may show a pattern of dishonest behaviour:

• Failure to cooperate with you - an employee who is genuinely sick is often grateful to the employer for seeking to find ways to accommodate and assist them. An employee who is resistant to you obtaining their medical records, obtaining an occupational health report, or fails to follow an appropriate treatment plan may indicate that something else is going on e.g. they are aware that their medical records might indicate they have not been honest, or where they do have a health condition, they are exaggerating the symptoms or are reluctant to follow the treatment as they do not wish to return to work.

• Blaming the company - many malingerers often say that their illness is solely attributable to work e.g. stress. This may be to excuse them doing other things e.g. going on holiday or socialising whilst on a period of sick leave which might otherwise raise concerns. Sometimes, employees do suffer with excessive stress at work to the extent that their injury or illness is solely caused by their employment. However, if their medical records or other documentation identify other stressful events such as bereavement or divorce which they withhold from the medical assessment, this may indicate that there is a tendency to malinger.

Can you dismiss a malingerer?

If an employee is malingering, and being dishonest about their ability to work, this may be cause for dismissal for conduct reasons. In those circumstances employers should carry out a thorough and fair investigation including taking medical advice, and must hold reasonable grounds for believing that the employee is being dishonest. A failure to properly investigate, or accusations where there is no reasonable grounds for that belief may lead to claims for constructive or unfair dismissal against the company.

Ultimately, sickness absence dismissals or malingering dismissals are extremely complex, and often give rise to claims for unfair dismissal as well as disability discrimination. I would always suggest taking expert independent advice before taking steps to dismiss an employee suspected of malingering.

Should you have any queries about the issues raised in this article, or on any employment related matter, please contact our expert Arvin Sandhu by email or on 01494 893 542.