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Off Sick - But ok on Social Media

26/01/2016

What should you do if you are told that an employee who is off sick put postings and photos on social media that suggest that rather than being poorly, they appear to be quite well.

I once advised on a case where the employee reported he was unable to attend work due to severe back pain.  Another employee who was having to work harder to cover his absence told the employer of postings the ‘sick' employee put on social media stating that he was laying decking in his back garden and even reported this as a ‘back breaking' task, there also were photographs where he proudly displayed the new decking whilst smiling with a can of beer in his hand.  The second employee said he and the rest of them were really annoyed that they were having to cover him while he was clearly ok.

The employer was furious and obviously suspected this chap to have taken the time off work for the purpose of laying his decking.  The employer's intention was to call the employee to let him know he had been ‘busted' and summon him to attend a disciplinary meeting for falsely reporting in sick.   

My advice was to investigate this further before instigating a formal disciplinary meeting.  This would include the gathering of evidence, for example, accessing the postings on social media.  Some people using social media restrict their privacy and if this is the case, the employer would need to ask the other employee to provide this evidence.  The next step would be to have an investigative conversation with the ‘sick' employee which is usually better face to face so they can be shown the evidence and asked to explain it.  The art of a good investigation is to ask lots of questions (not to give opinions or pass judgement) but to draw out the facts. 

Don't jump to conclusions as things are not always as conclusive as they first seem. In this particular case, during the investigation it transpired the employee had been working on his decking at the weekend before reporting sick on the Monday.  To prove his ‘innocence' the employee showed the photographs on his phone were taken at the weekend before he called in sick.  The employee admitted the activity had caused his bad back and he had put the postings on social media when he was off sick because he was bored. 

There was no doubt that the weekend activity had caused him to be absent but the subsequent action was very different to how the employer first intended to proceed. The employer does not have the right to say what an employee can do in their own time.    But in this case, there was still a meaningful conversation to be had in relation to the employee taking due care of himself so that he can remain fit to attend work and the impact his absence had on not only the business but his fellow workers who had to work harder to cover his absence and the resentment felt when they saw the postings on social media.  Although the activity did not take place during the sickness absence there is still likely to be some resentment from them when it could have been avoided.     

In this case the employee was unfit to attend work and he was able to demonstrate that the laying of the decking was the cause of the absence and did not take place while he was absent.  But what would you do if there continued to be a reasonable belief that he was falsely reporting his sickness?

The employer would still need to fully investigate the matter (as above) and if the employee admitted any ‘wrong doing' or the evidence gathered gave reasonable belief that the employee had falsely reported as sick, the employer should then invite him to a disciplinary meeting and closely follow the process.  

Misrepresentation or falsifying of information is generally considered as gross misconduct and an outcome could result in dismissal. You need to make sure the employee is aware of the possible outcome in the letter requesting him to attend a disciplinary meeting.  You should also make sure that your disciplinary policy lists what the Company may consider as gross misconduct as an offence, that would justify summary dismissal and need to be linked to gross misconduct. 

If you need any help with this please do not hesitate to contact me.  

 

Angie.  You can contact Angie Dansey at angela@practical-hr.co.uk


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