Pulling a sickie – genuine illness or “faking it”?

‘National Sickie Day’ fell on the first Monday in February. The day got its tongue-in-cheek title from the perceived surge in employee absences recorded on that day each year. Potential explanations include bad weather, post-festive season blues and seasonal illnesses such as colds and viruses. Recent research by HR/payroll provider MHR suggested that 20% of employees admitted to having “pulled a sickie” in the last year. Employers may suspect that the true number is higher.

Employers should be aware of the legal issues that arise when employees don’t turn up for work.

Legitimate absence or conduct issue?

It is important for employers to be able to distinguish between a valid reason for an employee’s absence – genuine illness – and a misconduct issue, where an employee calls in sick despite being fit for work, trading in a day at the office for a “duvet day”. Employers may suspect that even an extended period of absence is not genuine, and that the employee is actually fit for work, perhaps taking advantage of a generous contractual sick pay entitlement. For employers, it is crucial to know the difference between genuine absence and misconduct.

It is important that employers do not leap to conclusions about an absence being something other than genuine. A common concern for employers arises where an employee is absent from work due to ill health, but is seen, perhaps on social media, attending a “night out”, meeting friends, or taking a city break. The employer will often ask how the employee can be well enough to attend a night out, but too ill to work.

However, just because an employee is unfit for work, that is not to say that they must sit at home 24/7. Clearly, there will be some occasions where an employee’s leisure activities are inconsistent with their claimed ill health/injury (for example abseiling while off work with mobility issues) and these can be investigated formally under the disciplinary process. However, in many cases the activity will be entirely consistent with the claimed illness. For example, where an employee is signed off due to workplace stress, their ill health relates specifically to their workplace, and they may be perfectly well enough to engage in other activities. Indeed, medical advisers will often recommend that such an employee pursues their social life. Even a foreign holiday while off sick may well be recommended by a GP as a means of taking a break away from a stressful situation.

In other cases, a pattern of absence might suggest that illness is not genuine – e.g. always having a Monday off after the employee’s football team has a home game – but again, careful investigation will be required.

The bottom line is that employers should not jump to conclusions about short or long term absences, and any concerns should be carefully and thoroughly considered and investigated. Where an employee has a GP fit note saying they are unfit for work, it will take strong evidence to justify a conclusion that they are “faking it”. Employers who get this wrong may well face claims for unfair dismissal or discrimination. 

Genuine but repeated absence

Even genuine absences, if repeated and disruptive, could justify formal action and even dismissal. An employee who is repeatedly off sick can be dismissed for unacceptable attendance, even if the absences are all entirely genuine. The impact on the business may ultimately justify dismissal. A fair process is of course required, the decision must be reasonable, and formal warnings should be issued, even though it is in a sense futile to warn an employee not to be ill. If the absences are due to an underlying condition, medical input will be needed and great care should be taken. 

Managing long-term absence also requires careful handling, and legal advice should be sought.

A critical issue in addressing such issues is, of course, whether the employee has a disability. That will make it more difficult (but not impossible) to dismiss for repeated short term absence. 

Disability issues

When addressing concerns about absence, employers should be aware of the many conditions that may qualify as a disability under the Equality Act 2010. The Act defines a disability as a physical or mental impairment significantly affecting an individual’s ability to carry out normal daily activities over the long term. Employers have a legal obligation to make “reasonable adjustments” for employees with a disability and that could include adjusting normal absence management triggers. While the employer is not obliged to make intrusive enquiries about the state of an employee’s health, they are expected to take action when a potential disability is brought to their attention. Some medical conditions may not, at first glance, be recognised as a disability. Here are some examples of the kinds of medical conditions that employers may be caught out by.

1. Long-covid

Many people suffer from long covid, a condition that can substantially impact daily life and is persistent over an extensive period of time. Symptoms range from physical to mental conditions. In some cases, depending on the severity, impact, and period of suffering, long covid can be classified as a disability under the Act.

2. Menopause

For some women, menopause symptoms can be severe, significantly impacting on their quality of life and ability to work. In severe cases menopause symptoms can satisfy the disability definition. This is reviewed on a case-to-case basis, distinguishing between mild to moderate symptoms and those so severe, that they significantly impact daily life.

3. Migraines

Depending on the frequency, severity and impact of the attacks, migraines may constitute a disability under the Act. Regular migraines can cause considerable inconvenience and interruption to work from both the employer’s and the employee’s perspectives. Occupational health input in such situations can be crucial to establishing the best way to manage an employee who regularly suffers from this debilitating condition.

Managing sickness absence

It is inevitable that employees will require time off for genuine ill health. Having a clear sickness absence policy, as well as regular (and expected) return to work interviews, is essential. Employees should know that if they have to be off work through sickness, they must inform their employer at the earliest possible opportunity, and know that they will have to account for their absence on their return. 

Where there is an underlying condition, occupational health assessments are usually helpful in establishing the best way to manage the employee, including whether or not they have a disability.

It is vital that employers do not ignore information about a genuine health condition that could amount to a disability. But where there is strong evidence which suggests that an employee is actually “pulling a sickie” an employer is certainly entitled, following the proper processes, to take action. 

As for National Sickie Day, why do we have increased absences at this time of the year? 

The winter months do take their toll on our feelings of well-being and mental health. Sometimes small changes, like encouraging staff to take their rest breaks or altering working hours to allow staff to get some daylight in their non-working hours, can make a difference to staff well-being and absence levels.

If you would like any further information on this topic do not hesitate to contact a member of BTO’s Employment Team.

This update contains general information only and does not constitute legal or other professional advice.

Dawn Robertson, Partner & Accredited Specialist in Employment Law: dro@bto.co.uk / 0131 222 3242 / Connect with Dawn on LinkedIn

Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn