What can I do if I suspect an employee is malingering?

Here are five key things you need to do:

1  Conduct return to work interviews

After each absence, you should carry out a return to work interview to probe into the reason for absence. If you have noticed particular patterns or they have many frequent short-term absences, you can ask them whether there is a reason for it. If the employee is malingering, it may act as a deterrent to know that their absences have been monitored, you are spotting specific trends and that disciplinary action may be taken.

You can read more about return to work interviews here.

2  Ask for medical evidence

If you have vague, inadequate or frankly illogical reasons for absences, you may wish to ask for medical evidence. Asking for medical evidence may have the effect that absences reduce as it suddenly dawns on the employee that they are unable to provide any real evidence.

You can obtain medical evidence either from a GP or an Occupational Health Report. However, you will typically need the employee’s written authorisation. 

If they decline or are very reluctant to consent to medical evidence, you will need to probe as to why and if they have a good reason for refusing. If they repeatedly continue to refuse, you should write to them explaining that you will need to make decisions based on the evidence available.

3  Investigate the alleged misconduct

Do not make assumptions about the employee and do not make rash decisions. Conducting a well-thought-out investigation allows you to consider the matter fully before deciding whether disciplinary action is necessary.

Just because someone has called in sick, this does not mean that they have to be in bed and cannot leave the house. If an employee reports that they saw their colleague walking down the high street, you should not automatically assume they are malingering as they may be on the way to the doctor’s or some fresh air may actually help their ailment.

You should investigate the allegation as you would for any other allegations of misconduct. Our article Tips for investigating misconduct in the workplace will help you understand how to carry out an effective investigation.

4  Be wary of using covert surveillance

As part of an investigation, an employer may believe that the best way to prove that the employee is malingering is getting audio, photographic or video evidence that they are doing activities which conflict with their claims. However, you must consider data protection and right to privacy issues.

The Information Commissioner’s Office’s guidance in the Employee Practices Code says that it will be rare for this covert surveillance (not telling the employee you are doing this) to be justified and should only be used in exceptional circumstances. The guidance states that:

• Covert surveillance should be sanctioned by a member of senior management, who is satisfied that there are grounds for suspecting criminal activity or equivalent malpractice.
• You should limit the number of people involved in the investigation.
• You should undertake a written impact assessment to determine whether it is justified.
• Make sure that any covert monitoring is strictly targeted at obtaining evidence within a set timeframe and that it does not continue after the investigation is complete.
• Refrain from undertaking surveillance in areas which workers would genuinely and reasonably expect to be private, such as toilets.
• If you decide to use a private investigator, there must be a contract that ensures the investigator only gathers evidence in a way that satisfies and fulfils the employer’s duties under the Data Protection Act.
• The information obtained through covert monitoring should only be used for the prevention or detection of criminal activity or equivalent malpractice. All other information should be ignored unless it exposes something that no employer could reasonably be expected to ignore.

Any video, audio or photographs should be shown to the employee for their comment. This allows the employee an opportunity to give an explanation for what could be seen as damaging evidence.

5  Be careful using social media

Data protection and privacy issues mean that employers should take care relying on social media. If you suspect an employee is malingering, you should not use social media sites to stalk employees and dig as much ‘dirt’ up as possible. You should only seek targeted and relevant information.

Even if some evidence has come to your attention, you should look into it further. For example, an employee has come forward and shown you photos on social media that one of their colleagues is at a music festival when they have called in sick. You will need to ask yourself what do the pictures actually prove? Are the dates correct? What are their motivations for reporting it?

You should speak to the employee, explain what has been brought to your attention and that it seems that the pictures do not, on the surface, correspond with their reasons for sickness.

Only once you have carried out this investigation and have credible evidence can you proceed to a disciplinary hearing. Don’t make mistakes along the way. Call your Employment Adviser at the earliest opportunity so they can provide you with bespoke legal advice.