Putting a stop to swinging the lead
April 2008
In this article...
Getting the procedure right
Regardless of whether employees fall into the former or latter category above, this behaviour amounts to misconduct and should be dealt with as such under your disciplinary policies and procedures. The normal procedural rules relating to the fairness of disciplinary action (including the statutory disciplinary procedures) apply equally here, but some particular issues relating to suspected malingerers are set out below.
 |
The Employment Appeal Tribunal (‘EAT’), in Corus UK Ltd v Mainwaring (reported in Employment Eye) has confirmed that it is not always necessary to take a statement from an employee who has ‘tipped off’ an employer about possible malingering, as long as the resulting investigation is fair. | |
|
|
Surveillance may be used. Detailed information on surveillance is beyond the scope of this article, but you must ensure that any surveillance is lawful and does not amount to harassment or a breach of employees’ human rights. For public bodies, covert surveillance must be authorised by an authorising officer, under the Regulation of Investigatory Powers Act 1999. For both public and private sectors, surveillance of telephone calls must be undertaken in accordance with the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000. | |
|
|
A doctor’s note does not always have to been taken at face value. If there is reason to believe that the note may be suspicious, then the case of Hutchinson v Enfield Rolling Mills Limited has confirmed that it may be reasonable to conduct further investigations. | |
|
|
Specific questions to doctors are likely to be helpful. For example, if an employee signed off with a bad back is seen swimming, then ask the employee’s doctor if that information would change their advice. | |
|
|
A medical opinion should usually be sought before assumptions are made. In McMaster v Manchester Airport plc, the EAT held that it was reasonable for an employee to go on a day trip to France whilst he was signed off sick with depression, as medical evidence suggested that such a trip could have assisted with his condition. | |
|
|
Employees should be given an opportunity to explain their behaviour. For example, if an employee is signed off sick and is seen in a cafe, it might be that they were on their way to the doctors and felt faint, so had to sit down and have a drink. At least you then have an opportunity to investigate that before deciding whether you need to take any action. |
Dealing with problems
Three common problem areas are as follows.|
|
Once an allegation of misconduct is made, the employee claims they are too unwell to attend disciplinary hearings. Under the statutory disciplinary procedures, at least two disciplinary meetings must be offered to employees, but reasonableness and / or your internal policies and procedures may require that additional meetings are offered. Meetings may also be offered at the employee’s home, or by telephone. Alternatively, the employee may make written representations to a disciplinary meeting, or have a representative appear on their behalf. As a last resort, it may be reasonable to go ahead with a disciplinary hearing in the employee’s absence, but the employee must be informed in advance and told what the consequences might be. | |
|
|
The employee refuses to attend a medical examination.
Unless there is express provision in an employment contract to the contrary, employers have no stand alone right to insist that an employee undergoes a medical examination.
If an employee absolutely refuses to be examined, then there may be no option but to dismiss without medical evidence. In these circumstances, the employee must be made aware of the potential consequences of their refusal, and a decision must be made on the best available information. |
|
|
|
Medical reports are obtained, but conflict.
In these circumstances, either a further medical report should be obtained, or the evidence should be weighed up and a decision made based on what is reasonable in circumstances. What is reasonable will depend on the individual circumstances. For example, a company doctor’s opinion may be given more weight than that of the employee’s GP, if the former has greater knowledge of the specific requirements of the role. |
Points to note
If you suspect that an employee is malingering:|
|
undertake a thorough investigation; | |
|
|
follow a fair procedure; | |
|
|
warn the employee about your concerns; and | |
|
|
consider medical evidence; but | |
|
|
do not ignore the problem; or | |
|
|
jump to conclusions. |
We value your comments, please click here with your feedback/suggestions
Forward to a
colleague