In 2019, research by The Mental Health Foundation uncovered an alarming 70 million working days are lost each year in the workplace due to mental health problems, costing UK employers a staggering £2.4 billion per year.
Now, more than ever, mental health issues are a pinnacle talking point in the HR space, and it’s widely supported that these issues are the leading cause of sickness absence. Taking steps towards managing sickness absence with compassion has never been an easy fleet for HR, even more so if recurring patterns suggest an employee is not genuinely suffering.
Although a sensitive subject, is it time HR tackle the topic of whether an employee might be falsifying or exaggerating their mental-ill health to evade work or possibly delay a disciplinary hearing?
A leading cause of sickness absence:
As stated by the NCBI (National Centre for Biotechnology information), Malingering is the act of falsification or profound exaggeration of illness (physical or mental health) to gain external benefits such as evading work, receiving a financial benefit, or for a socio-emotional reward.
In the case of Ajaj v Metroline West Limited at the Employment Appeal Tribunal (EAT), Mr Ajaj, who at the time was a bus driver for Metroline, slipped on a wet floor in the workplace and subsequently, was unable to work for an extended period due to a foot injury.
After multiple reports that Mr Ajaj was struggling to walk, get dressed alone and even carry his shopping, the employer naturally became concerned. Following suspicions of malingering, Metroline carried out covert surveillance, and to their surprise, evidence showed Mr Ajaj carrying large bags of shopping while moving briskly.
This led to a thorough investigation, where Mr Ajaj was dismissed on the grounds of gross misconduct for making false claims for sick pay and injury at work and misrepresenting his ability to work.
It is worth noting that Metroline initially lost this case, but after careful inspection by the EAT, they concluded that when an employee is falsifying their sickness absence, it is a severe implication and permits for a dismissal to take place with immediate effect.
The impact sickness absence can have on an organisation:
Direct costs that are payable to or for the employee and range from multiple factors involving company sick pay, topping up statutory sick pay (SSP), long-term or extended sick pay, occupational health assessments, counselling sessions, private mental health insurance and any reasonable direct adjustments.
Secondary costs are paid for by all employees. For example, if individual staff members are taking advantage, the waiting lists for resources like an employee assistance program may be increased, access to private medical insurance might be restricted or the company’s permanent health insurance annual premium can be affected.
The business will have to consider the domino effect of resource costs which involve paying overtime to cover the malingerer’s reduced hours or a phased return to work. Additionally, the firm may have to pay for a contractor to cover the employee’s sickness absence which is on average, 1.5 x more expensive than the base salary of the original employee. There’s also the potential for lost revenue if the employee works in a department related to sales or marketing.
A non-tangible impact on the organisation is the cost to the team. If no temporary employee or reasonable adjustments are made to the absent employee’s workload, it can have a severe knock-on effect for the person(s) trying to balance an unimaginable amount of work.
Internally, if an employee is suspected of malingering and HR are yet to take action, it can undermine the authority of HR and the company’s sickness policies and procedures. Externally, it will mean deadlines for multiple clients may have to be delayed, having an overarching impact upon the relationship and reputation of the business.
How might you suspect malingering?
No matter the business, people will always be keen to showcase their suspicions regarding malingerers within the organisation. Still, it’s vital HR delve a little deeper into each scenario to make sure they understand the full picture.
The first way to suspect malingering is to keep a watchful eye over all HR processes carefully. For example, if an employee files a fit note singing them off for a duration of time right before a disciplinary hearing, is it time for the alarm bells to start ringing?
A common case may see an employee going for an internal promotion, to find out later that they didn’t quite cut the mustard. As time progresses, the employee self-certifies for seven days, and after careful inspection, their online activity shows that they’ve been applying for jobs elsewhere. Although this may sound like an ICO data breach, it is becoming increasingly more common that businesses include data monitoring clauses within employee contracts.
By consistently running reports to gain key analytical insights, HR will be able to detect unusual patterns towards managing sickness absence. For example, the HR team may use Natural HR’s reporting analytics tool to gain knowledge that an employee has been taking the last Friday of every month off. After investigation, they find out the employee had been participating in a monthly tennis tournament which opens the ground up for immediate dismissal.
10 practical steps to prevent malingering:
To obtain a more rounded approach of how to avert malingering, an example scenario will be put in place for the following ten steps. This example involves an employee being absent within the workplace but was later seen all over social media enjoying themselves at a party.
- Report or suspect malingering: Based on any information gathered and the recently posted photo, suspicions begin to arise, and a formal report is submitted to HR.
- Assess the value of information: A preliminary step before any investigation, you must assess the value of the information at hand. In checking the photo, ensure the time-period aligns with the date the employee was absent. Also, consider other alternatives such as, has the person reporting the issue previously had a grievance submitted against them by the absent employee? If the information doesn’t add up, the case may be dropped.
- Open the investigation: If HR decides an investigation needs to go ahead, make sure a senior investigation manager with adequate training is selected, make an investigation plan and determine which witnesses may need to be contacted to minimise disruption.
- Carry out a full and fair investigation: Once these steps have been attended to, the investigation manager will have full licence to delve into any information related to the case.
- Collect evidence: Ensure any evidence collected is written up in the investigation report. It’s important to note that the investigation manager should have no final say on the case, but can suggest if any further investigation is needed, whether there should be a disciplinary process or if the case should be dropped.
- Move to disciplinary process: If there’s sufficient evidence surrounding the absent employee and social post, then select a person who is different from the investigation manager to take the responsibility as a disciplinary manager.
- Disciplinary action: Once selected, the manager should provide a written statement to the employee containing date, time and location of the hearing, their right to be accompanied and by who, the malingering allegation made against them and any evidence gathered, i.e. social posts and written statements.
- Disciplinary hearing & outcome: Along with the information above, a list of possible outcomes should be provided. This can include no action, first written warning, final written warning or even dismissal. The disciplinary hearing should then be conducted following a fair procedure without delay and decide on an outcome.
- Written outcome & right appeal: Upon the final decision, a disciplinary outcome letter should be provided to the employee containing the final result from the options above. Importantly, a section of the letter needs to inform the employee of their right to appeal.
- Appeal: On the basis of an appeal, the employee will need to write back on the four grounds of appeal within five days unless the company’s appeal process allows for further delay.
If you’d like to apply this methodology on a gular basis, download this free infographic here.
What does the law say?
Likewise, to pursuing any legal case, there will always be the opportunity for claims to be brought against you. As an employer, it’s crucial to understand some of the different policies that can be applied in scenarios such as malingering.
Unfair Dismissal: This occurs when an employee is dismissed from their job but does not comply with one of the five reasons of fair dismissal (conducts, capabilities, redundancy, statutory legality or another substantial reason).
Constructive dismissal: Taking place when an employer has not delivered their duty of care and committed a serious breach of contract, forcing an employee to resign or leave their job.
Disability Discrimination: If an employee is falsely accused of malingering or was actually off due to their mental ill-health, the employee could file for sections 13 (direct discrimination), 15 (discrimination arising as a consequence of a person’s disability and 19 (indirect discrimination).
Speak with the mental health experts:
After speaking with the Founder of PsycHR, Helen Pericelous, she stated “Most of us HR professionals are not medical experts, and even if we are, we should not act in the capacity of a medical professional. So, never assume you know the symptoms or extent of the absent employee’s abilities because this can be a very risky approach.”
We must remember that no matter how serious an allegation is, we must protect, safeguard and follow the right procedures to take care of an employee’s wellbeing. Although, after dismissal, the duty of care ceases to be a requirement, the state of someone’s mental health during and after dismissal should remain a priority.
If you’re seeking expert advice on this subject or a related matter, speak with a professional. PsycHR is a leading mental health and training HR consultancy company, who have built a valuable reputation for their unique approach to promoting mental health in the workplace while balancing commercial productivity. To download their brochure, please, click here.