Is your employee genuinely sick?

There are measures you can take as an employer if you feel that a worker claiming to be ill isn't being straight with you, even if they have produced a doctor's note, but you need to tread carefully to avoid costly claims. Katee Dias explains.

THE PROBLEM

I think that one of my waitresses is trying to pull the wool over my eyes. She has provided a doctor's note saying she is suffering from a bad back and needs time off work. However, I don't believe her. Can I do anything?

THE LAW

There are a vast number of legal issues to consider here.

First, when an employee is ill or injured and therefore cannot attend work, they should provide their employer with a doctor's note if they are absent for more than seven days. This is needed for Statutory Sick Pay purposes.

Of course, employers may impose their own, and usually more burdensome, rules regarding sickness reporting. In these circumstances, employees should ensure compliance.

Second, employers often include in a contract of employment an obligation for their employees to undergo a medical examination upon their request. Unreasonable refusal by the employee then becomes a misconduct issue. Even if such a contractual obligation does not exist, an employer can ask an employee to agree to such an examination voluntarily.

Third, note that an employee's consent to disclosure of a medical report from their own GP must be obtained in accordance with the Access to Medical Reports Act 1988. Very briefly, this involves notifying the employee of their rights in respect of the medical report - for example, their right to see any such report - and obtaining the employee's explicit consent to the disclosure. However, these rules do not generally apply to reports from a company-appointed doctor.

Fourth, bear in mind your responsibilities under disability discrimination legislation, such as the duty to make reasonable adjustments, as a back injury could be classed as a "disability" for the purposes of the Disability Discrimination Act 1995.

Fifth, as you do not believe your employee is telling the truth about the extent of her injury, there is a potential issue of misconduct. Disciplinary procedures, incorporating the principles set out by the Acas Code of Practice on Disciplinary and Grievance Procedures, will be relevant if your belief is proven to be well-founded.

Finally, if you are intending to carry out covert surveillance of your employee in order to gather evidence that she is faking her injury, there are data protection issues to consider. You also need to be wary of a potential constructive dismissal claim as she may allege that such monitoring undermines the trust and confidence that exists between you.

EXPERT ADVICE

The employee's doctor is a medical expert so you should not disregard his note simply because you do not believe that your employee suffers from a bad back. You also need to be very careful about expressing your concern, as alleging that your employee is lying is a very serious accusation. However, there are additional investigations that can be made to verify the employee's assertions and the doctor's diagnosis:

• Consult with your employee about her condition.
• Seek your own medical advice from a company-appointed medical advisor. It is normal that you bear the cost of such examination as it is being undertaken on your request.
• As a last resort, consider undertaking covert monitoring, such as hiring a private investigator. However, this should only be done where it is a reasonable and proportionate response to your concerns.

CHECK LIST

• Obtain further information about the employee's condition - for example, directly from the employee, their own doctor or specialist, and/or a company-appointed medical adviser.
• Ensure you can support your allegation that the employee is faking their sickness before taking it further.
• Consider whether covert monitoring is appropriate, but remember that this should take place only in very limited circumstances.

BEWARE!

There is a raft of claims and subsequent remedies that could apply in this situation, from unfair/constructive dismissal - where compensation is currently capped at £76,700 - to claims under data protection legislation - where compensation is awarded to reflect the damage and distress caused to the employee.

CONTACT

Katee Dias, Goodman Derrick
020 7404 0606kdias@gdlaw.co.uk