Accusing an employee of faking their illness is not an attractive prospect for an employer. If the allegation cannot be substantiated, it will undermine the working relationship, and could lead to a constructive dismissal claim. In addition, in an Employment Tribunal, such allegations are not sympathetically received. So what steps can an employer take to tackle this thorny issue, and how – if at all – can an employer question an employee’s claim that they are disabled in Employment Tribunal proceedings?
Q How common is this issue?
A The vast majority of sickness absence is genuine and worthy of support from an employer. However, employers are increasingly aware of the difficulty of preventing staff abusing generous sick pay terms.
Where employees seek legal advice, they soon become aware that claiming they are disabled within the meaning of the Disability Discrimination Act 1995 will strengthen their hand in any dispute with their employer.
Q What should an employer do if they suspect an employee is not genuinely ill? Is it a capability issue or a conduct issue?
A Absence from work without a satisfactory explanation is a conduct issue. The focus of any misconduct investigation should be the fact that the employee has provided no reason, or an unconvincing reason, for their absence. It may also involve an allegation of fraud where the suspicion is that the employee is fraudulently claiming sick pay. The employer should follow its disciplinary procedure in the normal way, consider all the evidence reasonably available to it, and reach a decision as to whether it is reasonable to believe the employee was genuinely ill.
Q What if the employee’s absence is supported by their GP? Does an employer have to accept this as conclusive evidence?
A An employer will normally be expected to take a GP’s sickness certificate at face value. But a GP’s sickness certificate can be vague and unhelpful. Descriptions such as ‘not well’ are not unheard of. Therefore a GP’s sickness certificate will not necessarily be determinative.
It should be weighed in the balance with all the other evidence reasonably available to the employer. Where the certificate is not detailed, or conflicts with other evidence relating to the absence, it may be reasonable to rely on other evidence such as another medical report.
Q Can an employer ask for a second opinion from its own occupational health advisers?
A Yes. Where an employer is not happy with a GP’s report, they are not bound to accept it. An employer can ask for a second opinion by requesting that the worker attends an examination with an occupational health specialist. An employer cannot force the employee to attend this type of examination, but if the employee refuses to co-operate, it is legitimate to proceed on the basis of the information they have. Consider including a term in the contract of employment requiring an employee to undertake a medical examination at the employer’s reasonable request. Failure by the employee to co-operate with a medical examination in these circumstances would amount to misconduct – failure to follow a reasonable instruction.
Q Can an employer withhold occupational sick pay from an employee they suspect is not genuinely ill?
A Yes, if the employer has the contractual right to do so. The wording of the sick pay policy is crucial. You must have the express contractual right to withhold sick pay where the employer is not satisfied with the employee’s explanation for their absence. Where such wording is not present, there is a risk the employee may bring an unlawful deduction from wages claim. The ability to withdraw contractual sick pay in circumstances where there is evidence of abuse is a valuable tool for managing an employee back to work.
Q Can an employer dismiss an employee where they are satisfied an employee was absent from work when they were not genuinely ill?
A Before taking any disciplinary action, an employer must be confident that it fully understands the employee’s medical state, typically by reference to a medical report. Dismissal will rarely be justified for a first offence. It will normally be appropriate for the employee to be given a warning. However, dismissal may be justified where the employee has fraudulently claimed sick pay. Such dishonesty will be a gross misconduct offence and justify dismissal unless there are substantial mitigating factors.
Q What is the appropriate way to challenge medical evidence suggesting that an employee is disabled in Employment Tribunal proceedings?
A It is for the employee to prove they are disabled within the meaning of the Disability Discrimination Act 1995. This will normally involve evidence from a medical expert, although worryingly, Employment Tribunals are increasingly willing to accept a report from the employee’s GP to avoid delays in proceedings. Challenging this medical evidence is the most effective way to raise the allegation that an employee is not genuinely disabled.
Where an employer wants to submit that the employee has exaggerated their symptoms to a medical expert, the employer is required to put the employee on notice of that fact. If the employer wants to discredit the findings of an expert medical report, it should request a witness order to secure the expert’s attendance at the hearing, and cross-examine them on their report at the hearing. It is not appropriate to ambush the employee at the Employment Tribunal and only raise this kind of allegation on the day of the hearing.
Q Can an employer rely on an employee’s medical state on the day of the Employment Tribunal hearing to prove the employee is not disabled?
A No. The Employment Tribunal will only be concerned with the question of whether the employee was disabled at the time of the alleged discriminatory act. Given that it can take many months for an employee’s disability discrimination claim to reach a hearing, their current medical condition will not be relevant. Therefore employers should avoid arguing that the employee is not disabled based on the employee’s medical condition on the day of the hearing. In addition, frequently powerful and persuasive evidence from the employee’s colleagues is often overlooked by the employer. It is very easy to focus on the employee’s line manager rather than the people who worked side by side with the employee, and who have the best personal knowledge of the employee’s medical condition at the relevant time.
David Ashmore is an associate at Reed Smith