The Question
A member of staff has been off sick for two weeks (one week self-certified, the other with a doctor’s note). While off sick, she has been posting on a social networking site that she has been to Bristol to have a new tattoo, has been out and about with friends and has also been working at a second job.
She claims that cancer treatment as a teenager has left her with a weak immune system and has had 14 days off sick in six months. What can we do about this situation?
Legal Advice
Esther Smith, a partner at Thomas Eggar
This is a common question and, while it may sound frustrating, being unfit for work through sickness does not equate to being unfit to get out of bed or leave the house. Therefore, the fact that this employee is carrying out other personal activities while being declared by her GP as unfit for work does not mean she is not sick.
Sometimes, it will depend on the reasons stated by the GP that someone is unfit for work (if they are signed off with a broken leg and are seen playing football without a plaster on, you may have a different issue). But if an employee is signed off with stress, depression, a bad back or even some sort of bug or virus, it does not mean they should stay in bed and not be seen.
With any staff member who has taken excessive levels of absence when compared with other employees, however, you can look at disciplinary action in relation to their attendance levels, however. You can also legitimately impose disciplinary sanctions on people if their attendance levels are unacceptable – even if they are genuinely sick.
But you may need to be a little cautious with this lady – if she does have a history of ill health that makes her more susceptible to becoming sick than other employees. From your information, however, it appears that her levels of absence are somewhat higher than most.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Ian Mather, a partner at Mills & Reeve
There is clearly enough information on the social networking site to suggest that the employee was not really sick. In addition, she has been working elsewhere. This may be in breach of her contract. It certainly suggests she was fit to work.
I would investigate further in order to find out as much about what she was doing when she should have been at work as possible. Then conduct a disciplinary hearing after having told her in writing that it appears she was working/socialising while being off sick. Explain that dismissal is an option. Unless she has a convincing explanation, then do dismiss her.
If you go down this route, then you don’t need to engage with the frequent sick problem, which involves questions of disability that would require a detailed exploration of any medical condition. "
Ian Mather is a partner at Mills & Reeve.
