What can I do if an employee won’t return to work? 4 Steps every HR professional should be aware of

What can I do if an employee won’t return to work

Malingering employees can be a thorn in the side of any modern business. As such, dealing with an employee that won’t return to work is understandably a nightmare situation for any small company owner or HR professional to encounter. Unfortunately, it is one that you will inevitably face at one stage or another.

Fake illnesses cost UK businesses in excess of £5bn every single year, and each long-term absentee could potentially cost your company thousands. After all, every minute spent trying to resolve this issue is costing you money while temporary agency staff are likely to charge a fortune. Furthermore, if it turns out that you need to replace the employee, it is not uncommon for the process to cost the equivalent of a six-month salary.

When facing the issue of malingering employees for the first time, it’s vital that you resolve the problem quickly. It’s likely that you will be equipped with a range of questions, such as;

  • How can I tell if an employee is fit to return to work? 
  • How can I tell if an employee is unfit for work?
  • If an employee claims they are unable to return to work, is there anything I can do?
  • Communication has broken down with the employee, what if trust breaks down?
  • How can I rebuild trust with an employee who we suspect is malingering?
  • What reasons might an employee be malingering?

While the answers to those questions are important, it’s equally important to build a clear strategy for responding to this problem. Here’s all you need to know.

Try to encourage a return to work

When an employee won’t return to work, a part of you will be tempted to think about finding a replacement right away. However, hiring their replacement can complicate any future disciplinary action you decide to take as the outgoing employee could make a case for constructive dismissal. When added to the aforementioned costs of finding a new acquisition, encouraging malingering employees to return should be the first objective.

There are many reasons why an employee may start skipping work or fake an illness, including holidays, disillusion with their job, childcare, or actively considering another job opportunity. Meanwhile, some workers may have avoided a return to the workplace following temporary WFH measures simply because they don’t want to commute. 

As a HR professional, you should make a conscious effort to make a return to work seem more appealing. Here are three ways that you could achieve this goal:

Reduce their work hours

When looking to get an employee back to work, creating the smoothest transition is advised. While it is a completely different set of circumstances, you can borrow some ideas from the post-maternity leave transition. Many employees offer new mums a chance to temporarily reduce their work hours (although it is not a legal requirement) before slowly increasing them over time.

Reduced work hours can make a potential return feel less daunting for malingering employees while also making them feel valued. 

Offering light duties

Reduced workloads don’t have to revolve around part-time hours. It can be equally effective to focus on letting a worker complete light duties. For example, an office worker could take on basic admin or focus on a job role that they actively enjoy. Happy employees are shown to take 66% fewer sick days, which instantly highlights the potential benefits of supporting a malingering worker in this way.

However, it is important to avoid giving them preferential treatment. The last thing you want to do is upset other employees to accommodate a worker whose absence may have had an impact on their own workload.

Provide occupational health

Hiring an occupational health therapist or physiotherapist may seem like an extreme move, but it doesn’t only support malingering employees. Their presence can assist all team members. Happy workers are 13% more productive. The ability to unlock a 13% improvement across the workforce for the sake of making one additional recruit, which could even include part-time hours, is a wonderful thing.

Malingering employees often have a few issues on their minds. An impartial outlet to voice those concerns or gain emotional advice can make a world of difference.

Further additions could be as simple as updating the workspace with new decor or improved break room facilities can work wonders too. If malingering employees continue to display resistance against a return, it may be necessary to look at reducing their enhanced sick pay terms to standard Statutory Sick Pay. It may seem like a hostile tactic, but the business cannot sustain an enhanced sick pay plan for the long haul, especially if the worker isn’t intending to return.

It should also be noted that The Employment Appeal Tribunal (EAT) may consider the behaviour of exaggerating the effects of an illness or injury as misconduct which may be sufficient grounds for dismissal. This was highlighted by the Metroline West Ltd v Ajaj case. So, if your attempts at encouraging a return to work don’t work, there are plenty of additional paths to consider.

2. Gather evidence

When your attempts to support an employee on a return fail, it’s imperative that you take further action to resolve this ongoing issue, especially if the worker has shown no genuine desire or enthusiasm for it. If this is the situation that you are in, you are likely to need to obtain further evidence and establish whether disciplinary action is necessary and in some cases, this may lead to a dismissal. Dismissing an employee based on suspicion can be a costly mistake, not only financially but also for the employee’s well-being and the business’s reputation.

Hiring an investigator to monitor an employee suspected of malingering is legal, as long as the employee investigations are justifiable, proportionate and handled in a compliant manner. While this means that you have to respect GDPR and the employee’s right to privacy, the good news is that you are not required to tell an employee about the plans to investigate them if it is probably that it would impact the evidence.

The case of Gill v SAS Ground Services UK Limited saw an employee sacked after a colleague had printed out evidence of social media posts showing that the defendant had actually been at London Fashion Week working on her own business while simultaneously claiming sick pay. In this instance, the concrete evidence was enough to see the misconduct charge upheld.

Monitoring social media posts is just one of several ways to potentially gather evidence, although it should be noted that some grey areas regarding what can be considered public or private social media posts do exist. 

Email monitoring is another possible outlet, although it must not cross the line into invading an employee’s privacy. The Barbulescu V Romania case highlights the obligation to strike a balance between employee and employer rights. Nevertheless, it also confirmed that employers can monitor the use of business emails and related tools without breaching an employee’s human rights.

Using evidence

Gathering evidence is one thing but you also need to know how it can be used and whether it is verified. Evidence that could be deemed as hearsay, for example, will not help you should disciplinary action be required. Likewise, you need to advise malingering employees that their absences have not gone unnoticed without giving them any outlet to claim that you are attempting an unfair dismissal – which has seen some workers receive payouts in excess of £100,000.

When looking to use evidence or even probe an employee about their repeated absences, you must additionally be sure to follow your company’s set procedures and Acas code on discipline and grievance, even if the evidence you have gathered looks watertight and conclusive. Otherwise, if your endeavours contradict the written guidelines within the employee handbooks and employment contracts, your case becomes severely compromised.

The Perry v Imperial College Healthcare Trust case is a great example of why evidence must be gathered and utilised with care. In this scenario, a midwife who cycled to work was signed off with a knee injury but subsequently worked an office job outside of her midwife hours. This was deemed acceptable as there was no conflict between the two jobs while the second role could be completed without aggravating the injury.

3. Medical assessment 

There are many examples of employee absence that may lead HR teams to suspect malingering behaviours and subsequently seek a medical assessment. Some of those situations include weekend stretching, where a person repeatedly calls in sick on a Friday or Monday, as well as calling in sick after previously having their request for annual leave rejected. As an employer or HR team, you have to step carefully. 

After all, the majority of employees who claim they are ill are honest. Moreover, not all sicknesses mean they should be tucked up in bed. This is particularly true in cases of mental health conditions, where exercise and social activities can – alongside therapy and/or medication – be a key part of managing the situation. While your gut instinct over potential malingering is probably quite accurate, medical assessments are advised.

Doctors’ notes are easily acquired, but a doctor is not required to pass judgement on a patient’s motives. Instead, their focus is to provide an accurate diagnosis of their condition and symptoms based on any previous appointments and the information that the subject provides them. This information can be quite conclusive in verifying or validating an illness, especially if the individual continues to receive treatment. Likewise, medical records in the Perry v Imperial College Healthcare Trust show how medical assessments can support employees in genuine cases. 

Still, it can also be a great resource for employers, especially if a malingering employee’s medical records conflict with the accounts that they have given to your HR department Scientific research into malingering and mental disorders conclude that psychometric testing can have an important supportive role in understanding an individual case.

This is another reason to consider hiring an occupational health practitioner, who can spend more time with a suspected malingerer. Their reports can be far more useful, especially when combined with the evidence gained from your investigations. Similarly, if they refuse to take an assessment that is included in their employment contract, it can be another sign of potential malingering.

Conversely, though, attempting to dismiss someone who is shown to have a genuine and valid illness that stops them from working – even if it doesn’t impact other aspects of their life – can lead to an automatic unfair dismissal case. Even if the employee hasn’t worked at the company for two continuous years.

4. Make sure policy is clear

If you have gathered evidence that proves (at least in your mind) that malingering has occurred, it is important that you follow this up with the right response. The Burchell Test remains a crucial reference point and sets out whether an employer has acted reasonably in misconduct or capability cases.

Malingering employees are guilty of dishonesty, which may ultimately be used to dismiss a worker. However, in addition to stating that employers need valid reasons to conduct an investigation, the Burchell Test states that you must carry out a reasonable investigation while also taking any evidence that suggests innocence into account.

Nevertheless, you can use the evidence from a private investigator to dismiss an employee but only when the evidence proves gross misconduct as per your company policy. A clear policy should state that absences that are longer than one week will require a medical note. It must also detail what constitutes unacceptable behaviour regarding repeated single-day or short-term absences. As a modern company, you should also cover yourself by including elements that enable you to use social media posts, for example, as evidence.

Over 6 million people pull sickies each year. While only a small percentage will be repeat offenders (and an even smaller figure represents malingerers), a clear policy will make the proceedings to come far easier to manage. 

Capability procedure and dismissal

A capability procedure must be followed to support the attempts of encouraging a return to work. It will ensure that the employee has had a fair chance to discuss their absence, the impact it has, and what steps they are willing to take going forward. Of course, this also gives them an opportunity to clear up genuine absences.

Should this fail, it is possible to dismiss a malingering employee on the grounds of gross misconduct. It should also be noted that it is possible to dismiss a worker on the grounds of illness if it stops them from completing the job that they are employed to do. However, a dismissal can only be made upon completion of a fair investigation that produces clear evidence.

Need help gaining that evidence? Contact Reveal PI today to learn more about how we can help you stop malingering employees from disrupting your business.

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