We get a lot of enquiries from employers who have found out from an employee’s social media or from their colleagues that the employee who is signed off sick has been seen out and about. For example, seeing friends in the local pub or just out on a walk. Whilst this may flag a big issue when the employee has been signed off with the flu it is not so straightforward when the employee is signed off is because of stress, anxiety and / or depression.
What should employers do?
The first thing to do is not jump to conclusions, ask the employee to explain their actions or accuse the employee of lying. This could lead to claims for disability discrimination or the employee may resign and claim constructive unfair dismissal.
Although you may have a fit note from the employee’s GP saying the employee is not fit for work, you do not know what specific advice their doctor has given them to aid recovery. For example, their doctor may have suggested that they get out of the house and get some fresh air. In fact, this advice may promote a faster return to work as the employee’s mental health may improve as a result of social interaction. This may also apply if the activities involve sport or going away. It is always worth remembering that not all illnesses incapacitate a person to the extent that they need to stay in bed, or remain at home.
So essentially there is no legal requirement for a worker who has been signed off sick to stay at home. You must accept a fit note at face value unless you have convincing evidence which casts doubt on whether the employee is genuinely ill. An employee being out with their friends and family will not be evidence that the employee is fit for work and/or has been acting dishonestly so as to give you cause to dismiss them, or even reprimand them. Even just investigating whether an employee is genuinely unwell needs to be done extremely carefully or you risk breaching the implied duty of trust and confidence. Of course, if the employee is genuinely not sick and is deliberately not attending work then this could be misconduct and you would need to follow your usual procedures for dealing with this and ensure any process is conducted in accordance with the ACAS Code of Practice. If this is not done, then you could open yourself up to a claim for unfair dismissal.
Therefore, if you have concerns about whether the employee is genuinely unfit for work then you should investigate this (carefully – don’t just accuse the employee of malingering). Look to appoint an occupational health specialist to conduct a medical examination (to better enable you to understand the situation and plan the way forward). An occupational health specialist can be more objective than an employee’s own GP. The report will help you better understand your employees’ health and know what activities would be good for their mental health e.g. exercise, seeing friends etc. When you have the full picture, only then should you look to challenge an employee’s assertion that they are too ill to work.