Dealing with malingerers – weekly dilemma

Part of my role is monitoring absence. It’s come to my notice that one member of staff has been off for some time because of a leg injury. I have reasons to suspect there’s nothing much wrong with him. His job involves minimal manual work. I’ve told him he must see the company doctor but he refuses, saying he will only deal with his GP who has supplied little evidence to suggest he is suffering from a disability. What are my options?

You need to know what the injury is, how long it is likely to last, and what if anything needs to be done to the working environment to help the employee come back to work. Most well-worded employment contracts will oblige an employee to submit to an examination by the company doctor. If there is such a clause it will do no harm to remind the employee of it. Alternatively you could consider asking his permission to approach his GP direct.

If that still doesn’t do the trick, you will need to impose a firm, but friendly, deadline. If he doesn’t co-operate tell him that you can’t let matters drift and will have to proceed on the limited information you have. Most employees eventually agree once you explain why it’s also in their best interests. Don’t question the medical evidence you have received from his GP, unless you have very good reason to do so – for example a contradictory report from the company doctor.

Before deciding on the next steps, think about the following:

  • Whether he is protected by the Disability Discrimination Act. If so, can any adjustments be made to his working environment or conditions at reasonable cost to help him get him back to work.

  • How much more time is he likely to need off?

  • How long is the company able to hold the post open, if he cannot return to work soon?

  • Does the company have any formal procedures for handling sickness absence – for example a capability procedure?

  • When does company sick pay, if any, run out?

Depending on the facts, options could include a phased return to work, a date for a further review, or moving to dismissal on health grounds. If you decide to dismiss him, remember to comply with your contractual obligations and to inform him of your company’s appeal procedure.

David Mills, partner, Mills & Reeve

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