If you’ve ever been frustrated by an absent employee, signed off as unfit to work but apparently out enjoying themselves, posting on social media or even working another job, then you’re not alone. But should you take things at face value and is this enough to justify dismissing someone, because you think they have misled you about just how unwell they are?
You need to be very careful before you go down the dismissal route. Just because an employee may be signed off as unfit to perform the role they do for you, may not necessarily prevent them from going out, going on holiday or even working a different job where the physical or mental demands may be completely different.
Remember the case of Mr Marshallsea, signed off with stress when he took a holiday to Australia? He then achieved international fame when he rushed into the sea to wrestle a shark away from nearby children. He may have been hailed as a hero by the international press, but when his employers saw the coverage they were less impressed and fired him for misconduct. This was on the basis that he had misled them about just how unwell he was. He went on to claim he had been unfairly dismissed, and with good reason.
An extreme case perhaps but it underlines the importance or really understanding the reason for the absence, following due process and properly investigating any suspected misconduct, before jumping in with both feet.
By contrast, an employer who has genuine grounds to suspect that an employee is abusing their entitlement to sick pay by taking time off when they are actually fit, can take action. However, at that point what started out as absence management needs to shift a gear and become a disciplinary investigation. This must include the usual procedural safeguards to help ensure the process is robust. If a dismissal becomes the end result this attention to detail helps ensure any decision-making stands up to the scrutiny of an Employment Tribunal.
Join employment partner Chris Phillips on Tuesday 16th May in Edinburgh for our Absence Management workshop. Get some top tips on how to avoid the pitfalls and ensure your organisation can pick apart absence from misconduct and avoid shark-infested waters. Book your place
