Dealing with ‘malingerers’

2 June 2008

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The ‘malingerer', the employee who either exaggerates illness or feigns ailments in order to take time off work, is a common feature of the modern day workplace. Whilst such behaviour amounts to misconduct, employers should ensure that they do not jump to conclusions but instead undertake a thorough investigation to establish whether the absences are genuine, before taking any action.

When dealing with intermittent absences, employers should request that the employee produce doctor's notes (where absence lasts for a period of 8 days or longer) and, where appropriate, obtain permission to request a full medical report, in accordance with their (hopefully implemented) sickness absence policy. This may identify a more serious underlying cause for the employee's absences, which the employer must take into account before considering disciplinary action, or even dismissal.

However, employers should note that, whilst a GP's note cannot be challenged per se, a doctor's note does not always have to be taken at face value. If there is a reason for the employer to believe that the note may not give the full picture, then it may be reasonable to conduct further investigations, although it will be necessary to obtain the employee's permission to do so. Specific questions to doctors are likely to be helpful. For example, if an employee signed off with a bad back is seen swimming, then the employer should ask the employee's doctor if that information would change their advice. Employers should usually seek a medical opinion before making assumptions and employees should be given an opportunity to explain their behaviour, as dismissing an employee without thoroughly investigating their absences or following a fair procedure would be unfair and could amount to disability discrimination, if the employee concerned is disabled within the meaning of the Disability Discrimination Act 1995.

If no underlying cause is found, employers should assess whether or not the employee is malingering or, in fact, suffers from genuine intermittent illnesses.

Genuine intermittent absenteeism should be handled sympathetically. Employers should consider whether there is anything they can do to reduce absenteeism levels while at the same time setting realistic attendance targets. Failure to meet these targets may subsequently lead to disciplinary action being taken on performance grounds, and then, ultimately, to dismissal. Employers should consider whether, by reducing workloads, changing hours of work, re-assigning duties or providing special equipment, they could assist employees to overcome illnesses. Much will depend on the type of illness and the effect it is having. However, employers should always carry out a risk assessment for employees suffering from illnesses and ensure that the work is not worsening the employee's condition.

Cases of malingering, if proven, amount to misconduct and should be dealt with under the employer's disciplinary policies and procedure on conduct/performance grounds. The normal procedural rules relating to the fairness of disciplinary action (including the statutory disciplinary procedures) apply equally here, but, in relation to suspected malingerers, employers should note 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. However, it is always advisable for employers to obtain such witness statements, unless they do not intend to rely on that evidence when disciplining the employee;
Surveillance may be used. However, the employer must ensure that any surveillance is lawful and does not amount to harassment or a breach of employees' human rights.

In an attempt to discourage malingering, employers are advised to ensure that they are familiar with their sickness absence policy and that they adopt return-to-work meetings, which may prove effective in making employees think twice about skipping work if they are faced with the prospect of having to meet with HR to explain their absence upon their return.

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This article was prepared by Aaron & Partners LLP. For details of Aaron & Partners' full range of legal services click here.

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