Do you have an employee who appears to constantly call in sick on Mondays after a heavy weekend? An employee who you suspect is calling in sick to take time off to care for children without having to take it as unpaid leave? Are there justified suspicions that an employee is overstating a legitimate illness in order to have more paid time off work? If so, the employee may be conducting the gross misconduct act of malingering of which there may be serious penalties.
Malingering is defined in DSM-IVas “the intentional production of false or grossly exaggerated symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs.”
Noticing malingering in the workplace
An indicator of an employee malingering is where there is a large difference in the symptoms described by the individual and those which can be observed.
If the contract of employment provides for you to require an ill employee to participate in occupational health and they refuse to co-operate, or they provide inconsistent medical records this also indicates malingering.
What action should you take in response to your suspicions
Where an employee has deliberately or intentionally deceived you in relation to their capability to do their job, they have acted dishonestly and may be dealt with as committing an act of misconduct.
If sufficiently serious enough the employee may be dismissed on grounds of conduct, the dishonesty, not the employee’s capability. It is important that this is explained to the employee, as different processes are used for the two and they should not be confused, as if they are, there may be a finding of unfair dismissal and/or disability.
Therefore, as malingering is a conduct issue, as an employer you must carry out a full investigation, following your own disciplinary procedure and the ACAS code of practice, and highlighting any mitigating factors. It is important that you do not jump to any conclusions and wait until the completion of the investigation before acting. During the investigation you may be tempted to conduct covert surveillance which although may be justified, it is something that should not be routinely done, and you should seek advice if you are considering this.
If you decide to dismiss an employee for malingering it would be judged against the ‘Burchell test’ as to whether it was a fair dismissal. Under the ‘Burchell test’ it may be considered a fair dismissal if your decision is based on a reasonable belief of guilt, based on a reasonable investigation.
If you suspect an employee of malingering and wish to speck to an expert Solicitor, please call 020 7903 6888 or email contact@davenportsolicitors.com
