UK: Playing Hooky Doesn't End In The Playground…

Last Updated: 22 October 2015
Article by Kirsty Graydon

For employers, during the Winter months this means an influx of employees phoning in sick. According to the Department of Work and Pensions, absence rates are 27% higher during the winter months. This can cause real problems for some organisations – particularly those with smaller workforces or those where there is greater demand for the provision of goods and services during the festive period.

It's that time of year when the days are shorter, the leaves fall from the trees and you can expect to meet Dracula, the Wicked Witch or Guy Fawkes when you take the dog for his evening walk.

Amid the premature festive promotions, although that succulent turkey does look scrumptious, we will see endless television adverts for cold and flu remedies as brands strive to take advantage of the sniffly suffers as the annual infection season draws near.

For employers, this means an influx of employees phoning in sick. According to the Department of Work and Pensions, absence rates are 27% higher during the winter months. This can cause real problems for some organisations – particularly those with smaller workforces or those where there is greater demand for the provision of goods and services during the festive period.

Beyond discovering a medical cure, what can hands-on employers do?

Forward thinking employers might offer staff complimentary flu vaccinations - according to the NHS, the best time to have a flu vaccine is in the autumn, from the beginning of October to early November i.e. now! Additional measures might include improving the hygiene practices around the workplace.

Employees will nevertheless take days off. The first port of call should be the Contract of Employment and the Employee Handbook. It is important that employers have clear rules in place with a step by step guide for poorly employees to follow. This will normally involve phoning HR or a Manager within an hour of the normal start time. In some organisations, it may also be necessary for the employee to complete a self-certificate when they return to work which details the reason(s) for the absence.

However, these efforts are futile if the reason for the absence is not genuine...

Suspected malingerers could be cosied up on the sofa watching Love Actually or even have nipped down to London to do some Christmas shopping and catch Lord Webber's festive performance.

Employers should not impulsively pull the hypothetical cracker and dismiss. Like all potential misconduct issues, even where there is robust evidence, a proper investigation must be carried out in order to avoid a later finding of Unfair Dismissal (assuming the employee has sufficient service). Additionally, employers should not withhold sick pay without sufficient evidence as this could lead to a claim for unlawful deduction of wages.

Initial internal checks include reviewing the employee's absence record and any information, such as personal circumstances, which might explain the absence. Externally, employers can phone or write to the employee, in a neutral tone, to determine the reason(s) for the absence.

In cases of persistent short-term absence, the employer might consider asking the employee for their consent to request a medical report from the employee's GP. Making the request for consent might alone reduce absence as the individual has been made aware that they are being monitored. If an employee does not consent to the request, they should be made aware that an inference can be drawn that the absence was not genuine.

In extreme cases, employers may carry out covert monitoring as part of the investigation but before the employee is made aware. This might catch an employee who claims to have the flu descending down a dry ski slope. However, the evidence may not be conclusive. If, for example, the employee is spotted shopping, they might be buying one of the overly advertised remedies mentioned above rather than a glittery outfit for the office Christmas party. Covert monitoring, as attractive as it sounds, must be justified. Employers should also remain conscious to their Data Protection obligations.

The investigation may reveal that the absence was in actual fact genuine, on the other hand, it may confirm initial suspicions. If the latter, a lesser sanction such as a written warning might suffice. For more serious instances, dismissal may be appropriate. Where the misconduct is at the extreme end of the spectrum, such as going on holiday, a finding of gross misconduct resulting in summary dismissal might be more appropriate. The terms of the company's Disciplinary Policy in relation to unauthorised absence must also be taken into account.  As with all dismissals, employees should be awarded a right of appeal.

Throughout the handling of any absence situation, employers should remain mindful of a potential disability, addiction or pregnancy. For advice in relation to handling short-term, long-term or persistent absence, please contact a member of our team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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