Employers face many challenges when dealing with sickness absences. It gets much more difficult when you face malingerers – employees who lie or exaggerate their illness or injury to avoid attending work.

Getting evidence to support your suspicions is notoriously difficult and makes it hard to take action. In this article, we will help you spot fake sickness absences and explain what to do.

Malingering vs Real Illness

Employers need to distinguish between cases of employees taking frequent short-term absences for insincere reasons, and cases where you believe the reasons for the absences are real but they are having a disruptive effect on the business. Depending on the case, you will need to follow different procedures.

In cases of employees malingering, it is about conduct, which means that it should be dealt with as a disciplinary issue.

In cases of frequent absences for real reasons, the employer should follow the procedures in their absence management process.

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How do I spot if someone is malingering?

In essence, you should look to see if there are any patterns of absences; if they are unable to provide medical evidence; if there are work situations that are triggering the absences; if colleagues have given you evidence of fake sickness absences or if images or posts on social media websites are not compatible with the employee’s claims. For example, you may notice that:

• the PA conveniently contracts a 24 hours virus on numerous Mondays or Fridays
• the Finance Assistant is taking regular short-term absences when the World Cup is on
• the IT Manager develops a migraine when a complex software upgrade is planned
• the Marketing Executive says he is bedridden with the flu, but pictures surface on their Facebook profile of them lapping up the Spanish sunshine
• a period of sickness absence coincides with the week the employee tried to book annual leave but his request was rejected.

What can I do if I suspect an employee is malingering?

Here are five key things you need to do.

1  Conduct return to work interviews

After each absence, you should carry out a return to work interview to probe into the reason for absence. If you have noticed particular patterns or they have many frequent short-term absences, you can ask them whether there is a reason for it. If the employee is malingering, it may act as a deterrent to know that their absences have been monitored, you are spotting specific trends and that disciplinary action may be taken.

You can read more about return to work interviews here.

2  Ask for medical evidence

If you have vague, inadequate or frankly illogical reasons for absences, you may wish to ask for medical evidence. Asking for medical evidence may have the effect that absences reduce as it suddenly dawns on the employee that they are unable to provide any real evidence.

You can obtain medical evidence either from a GP or an Occupational Health Report. However, you will typically need the employee’s written authorisation. 

If they decline or are very reluctant to consent to medical evidence, you will need to probe as to why and if they have a good reason for refusing. If they repeatedly continue to refuse, you should write to them explaining that you will need to make decisions based on the evidence available.

3  Investigate the alleged misconduct

Do not make assumptions about the employee and do not make rash decisions. Conducting a well-thought-out investigation allows you to consider the matter fully before deciding whether disciplinary action is necessary.

Just because someone has called in sick, this does not mean that they have to be in bed and cannot leave the house. If an employee reports that they saw their colleague walking down the high street, you should not automatically assume they are malingering as they may be on the way to the doctor’s or some fresh air may actually help their ailment.

You should investigate the allegation as you would for any other allegations of misconduct. Our article Tips for investigating misconduct in the workplace will help you understand how to carry out an effective investigation.

4  Be wary of using covert surveillance

As part of an investigation, an employer may believe that the best way to prove that the employee is malingering is getting audio, photographic or video evidence that they are doing activities which conflict with their claims. However, you must consider data protection and right to privacy issues.

The Information Commissioner’s Office’s guidance in the Employee Practices Code says that it will be rare for this covert surveillance (not telling the employee you are doing this) to be justified and should only be used in exceptional circumstances. The guidance states that:

• Covert surveillance should be sanctioned by a member of senior management, who is satisfied that there are grounds for suspecting criminal activity or equivalent malpractice.
• You should limit the number of people involved in the investigation.
• You should undertake a written impact assessment to determine whether it is justified.
• Make sure that any covert monitoring is strictly targeted at obtaining evidence within a set timeframe and that it does not continue after the investigation is complete.
• Refrain from undertaking surveillance in areas which workers would genuinely and reasonably expect to be private, such as toilets.
• If you decide to use a private investigator, there must be a contract that ensures the investigator only gathers evidence in a way that satisfies and fulfils the employer’s duties under the Data Protection Act.
• The information obtained through covert monitoring should only be used for the prevention or detection of criminal activity or equivalent malpractice. All other information should be ignored unless it exposes something that no employer could reasonably be expected to ignore.

Any video, audio or photographs should be shown to the employee for their comment. This allows the employee an opportunity to give an explanation for what could be seen as damaging evidence.

5  Be careful using social media

Data protection and privacy issues mean that employers should take care relying on social media. If you suspect an employee is malingering, you should not use social media sites to stalk employees and dig as much ‘dirt’ up as possible. You should only seek targeted and relevant information.

Even if some evidence has come to your attention, you should look into it further. For example, an employee has come forward and shown you photos on social media that one of their colleagues is at a music festival when they have called in sick. You will need to ask yourself what do the pictures actually prove? Are the dates correct? What are their motivations for reporting it?

You should speak to the employee, explain what has been brought to your attention and that it seems that the pictures do not, on the surface, correspond with their reasons for sickness.

Only once you have carried out this investigation and have credible evidence can you proceed to a disciplinary hearing. Don’t make mistakes along the way. Call your Employment Adviser at the earliest opportunity so they can provide you with bespoke legal advice.

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