If an employee is genuinely sick or injured, they are entitled to take time off work to recover. If an employer suspects an employee of malingering, and that they may not be genuinely ill or as ill as they claim, the employer can take steps to deal with the concerns.
The following guide looks at how to handle suspected malingering in the workplace, including taking disciplinary action against someone who claims to be suffering from illness or injury when they are in fact fit for work. We also examine the legal risks around dealing with bogus sickness absence and what steps can be taken to prevent your staff from ‘pulling sickies’.
What is malingering?
Malingering at work refers to where an employee either falsifies or exaggerates symptoms of physical or mental ill health to avoid going into work or to get paid time off. This could be for a number of reasons, such as childcare issues, going on holiday, following a heavy weekend or even to shy away from certain responsibilities at work, such as a team deadline or meeting.
The term ‘malingerer’ in the context of the workplace essentially refers to where an employee is absent, and cites illness or injury as the reason for their absence, but the employer:
- does not believe the employee’s explanation for their absence
- subsequently discovers that the employee was not actually ill or injured, but had taken time off work for other non-sickness related reasons, and/or
- does not consider that the illness or injury is serious enough to justify their absence.
The period of absence involved may be a one-off shift or a series of single days, or even entire weeks.
Can an employee be disciplined for faking illness?
If you suspect an employee of malingering, you can choose to treat this as a potential misconduct matter, although a fair disciplinary procedure must be followed before imposing any disciplinary sanctions. This is because the employee must be given an opportunity to explain their side of the story and to justify their absence on the grounds of ill health.
Much will depend on the reasons why an employer or line manager has doubts as to the genuine nature of an employee’s absence. For example, if an employee is seen out whilst on sick leave, this doesn’t automatically amount to misconduct warranting disciplinary action. An employee may be genuinely unfit for work but not required to rest at home, where not all illnesses or injuries incapacitate a person to the extent that they need to be housebound.
There may be various activities that an employee signed off sick can still undertake or are sanctioned by their GP. Being able to go grocery shopping, do some light exercise or even socialise is not necessarily incompatible with an individual being unfit for work, especially with mental health conditions, such as work-related stress. This means that absence which initially looks like a non-genuine absence may, on proper investigation, prove to be genuine.
Equally, if an employee goes on holiday while off work sick, although an employer would usually expect that individual to let them know that they’re going away, this is not necessarily indicative of malingering. Taking a holiday whilst on sick leave can be justified where an employee is not physically able to work but still physically able to take a holiday, or suffers from a mental health condition that might be helped by going away. In cases of long-term sickness absence, a holiday might help with the employee’s recovery and even facilitate a speedier return to work.
Clearly, if you suspect an employee of malingering, you may want to investigate this as a disciplinary matter, although caution must be exercised. This is because genuine absence from work is not a form of misconduct and, in circumstances where an employee has an unusually poor attendance record due to ill health, this should be dealt with as a capability issue.
Is malingering a fair reason for dismissal?
As a misconduct matter, malingering is a potentially fair reason for dismissal, provided there is clear and credible evidence that the employee has falsified or exaggerated their symptoms of ill health to get time off work. This means that where you have a reasonable belief of bogus sickness absence, plus reasonable grounds to support that belief, this may justify dismissal.
However, for any dismissal to be deemed fair, you must be able to show that you acted reasonably in all the circumstances in treating malingering as sufficient reason to sack an employee. There is no statutory definition of ‘reasonableness’, although you must conduct a full and fair investigation into all the facts and circumstances surrounding any alleged dishonesty before making any decision to dismiss. This should include notifying the employee in writing of the nature of the allegations made against them, together with any proof in support, and giving that individual the chance to defend these allegations at a disciplinary hearing.
Having heard all the evidence, any decision to dismiss must fall within a range of reasonable responses available to you as the employer. This can include consideration of alternative disciplinary sanctions in the context of any mitigating factors, and whether the decision to dismiss, especially for a first offence, is consistent with any previous decision-making. As part of a fair disciplinary procedure, you must also provide the employee with a right of appeal.
In cases where malingering amounts to gross misconduct, for example, if the employee has blatantly lied about being ill and perhaps taken a holiday abroad, this could justify dismissal without notice or pay in lieu of notice. This is known as summary dismissal. Still, even in cases of summary dismissal, you cannot dismiss an employee on the spot. You must first fully investigate the circumstances surrounding the alleged dishonesty before making any decision.
Legal issues when dealing with suspected malingering
Even where there is clear and credible evidence of malingering, any failure on the part of the employer to follow a fair disciplinary and dismissal procedure, and to act reasonably in all the circumstances, can result in a finding of unfair dismissal before an employment tribunal.
In most cases, an employee must have at least 2 years’ continuous service to be eligible to claim unfair dismissal. However, dismissing someone suffering from a long-term physical or mental impairment because of sickness-related absence could be classed as automatically unfair dismissal for which there is no qualifying service requirement. If you discipline or dismiss a disabled employee, or fail to make reasonable adjustments in the workplace to support them in their job role, you also run the risk of unlawful disability discrimination.
In cases of work-related stress or other mental health conditions, it is not uncommon for employers to doubt an employee’s honesty, instead wrongly assuming that the employee is fabricating or exaggerating their symptoms to get out of work. The reality is that many people genuinely suffer from mental health issues, taking time off work because they can’t cope, but without necessarily seeking medical support or securing a clear diagnosis from their GP.
Failing to address sickness absence in the correct way, where absences due to genuine ill health should be treated as a medical issue, not one of malingering, can leave an already vulnerable employee feeling unsupported and undermined. This can lead to reduced employee engagement, increased absenteeism and even claims for constructive dismissal.
How to deter employees from pulling sickies
When it comes to malingering, employers should avoid jumping to conclusions or making unfounded accusations of bogus sickness absence. However, you are entitled to challenge the validity of an absence excuse, although you must first discuss the matter directly with the employee before making any decision to take disciplinary action. For short periods of absence, you should usually wait until the employee returns to work to conduct a back-to-work interview, at which stage a decision can be made as to what disciplinary action, if any, will be taken.
When conducting a back-to-work interview, any fit note provided by the employee during the course of their sick leave can be used as a starting point for your discussions. This is a note provided by the employee’s GP or other medical professional, setting out the nature of their condition, together with a prognosis for their return to work. In cases where an employee has been ill for more than 7 days in a row, including non-working days, they must provide you with a fit note. If an employee is off work for 7 days or less, they can instead be asked to self-certify on their return to work, providing details of the reason for their absence.
Generally, employers are required to accept a fit note at face value, unless they have clear evidence casting doubt on whether the employee is, or was, genuinely unfit for work. A good indicator of an employee’s malingering is where there is a significant difference between what is set out in the fit note, or certified by the employee in writing, and what they disclose during the course of any back-to-work interview. If there are inconsistencies, unless these can be plausibly explained by the employee, this may justify disciplinary proceedings. You may also be dealing with an employee exhibiting frequent short-term absences, where the employee should be asked to explain this pattern of non-attendance.
Where an employee is on long-term sick leave, or has recurring absences for the same alleged illness or injury, you may want to ask them to undergo an independent medical assessment. If the employee’s contract of employment makes provision for participation in occupational health assessments, and they refuse to co-operate without good reason, this may suggest malingering for which disciplinary action can then be justified. However, to avoid falling foul of any “disciplinary for sickness law”, the employer must ensure they follow a fair procedure.
Steps to reduce malingering
With more genuine reasons for employees to take time off work in the context of COVID-19, comes even more excuses for malingerers to use to their advantage. Still, employers must continue to exercise caution before making assumptions or allegations of bogus sickness absence. This is because any decision to discipline or dismiss an employee, without adequate evidence of malingering, could result in costly repercussions for your organisation.
By ensuring that you have in place fair procedures for dealing with both conduct and capability matters that are applied consistently, including back-to-work interviews that can be used to probe employees as to the nature and extent of their ill health, this can very often dissuade employees from being dishonest. If employees are made aware that they will be questioned about the veracity of the reasons given for their absence, and that any repeated absences will not go unnoticed, staff will be far less likely to pull a sickie.
Being accommodating of your employees’ needs will also lessen the need for them to conceal the real reason for any absence, for example, if they have recurring childcare issues you could consider more flexible working arrangements. Providing some degree of flexibility around working hours and shift patterns will also make it easier for employees with understandable non-sickness related absences to find a healthy work-life balance.
DavidsonMorris work with employers to support on all aspects of workforce management and engagement, including strategies and procedures to reduce sickness absence and deal with issues of malingering. Our team of employment lawyers and HR consultants provide a holistic advisory service, combining legal risk management with employee relations and engagement expertise. For specialist advice, contact us.
What is malingering in the workplace?
Malingering in the workplace is where someone is either falsifying or exaggerating symptoms of physical or mental ill health to get time off work or paid time off, for example, to look after children or go on holiday.
Can you be fired for malingering?
An employee can be fired for malingering, where this constitutes a potentially fair reason for dismissal based on misconduct, although the employer must still act reasonably in all the circumstances and follow a fair disciplinary procedure.
What does malingering mean?
Malingering refers to where someone is pretending to be sick or injured, or exaggerating the seriousness of any symptoms of ill health, typically to get out of going to work, for example, where someone falsely claims to have food poisoning.
How do you handle dishonest employees?
Dishonesty in the workplace is a potentially serious misconduct matter for which an employer may take disciplinary action, although there must be clear and credible evidence to justify any decision to dismiss.
Last updated: 25 August 2021