business doctor
Business Doctor is Peter Done's weekly column; sharing employment law advice.
KW writes: Can I fire someone who is taking time off work by pretending to be sick when in reality they are attending job interviews? This fact was confidentially disclosed to me by a friend of the particular individual.
To fairly dismiss an employee for this particular offence, you would have to convince a tribunal that the employee had committed an act of gross misconduct in doing so, writes Peter Done, managing director of Peninsula. It is unlikely that ‘pulling a sickie’, for whatever reason, would be seen as an act which is so serious it makes it impossible for the working relationship to continue.
If your employee has committed disciplinary offences in the past and is currently on a final warning, having been warned that any further acts of misconduct will result in his dismissal, then dismissing the employee in this circumstance may well be deemed fair.
However, before you take any action, as always, you should attempt to corroborate the allegations that have been made. How do you know that the employee’s friend is telling the truth? You shouldn’t take any action until you have investigated further. It is very difficult to know for certain whether an employee is trying to work the sickness system by pulling a sickie unless you have concrete evidence i.e. you see them in the street and it can reasonably be deduced that they were attending an interview.
There may be reasons why the employee’s ‘friend’ might want to get the employee in trouble by circulating rumours regarding their absence so it is not advisable to take their word for it.
You should, as a matter of course, be conducting return to work interviews with employees on their return from sick leave during which you can have a discussion with them over the reasons for their absence. You should do this with the employee to try and ascertain the real reason they were away from work. Remember that is not a disciplinary hearing so should not be dealt with as such. If the employee is particularly evasive with their answers, you may then feel that there is sufficient call to begin a disciplinary procedure.
There is certainly scope to withhold any company sick pay (subject to the terms of the scheme) and even Statutory Sick Pay if you are not satisfied with the evidence of any incapacity.
Although misconduct of this type may be serious, it is doubtful that it is sufficient to warrant dismissal.
