What can I do if I have an employee who is currently on sick leave from work, but they have been posting images of themselves going out on social media?

Managing sickness absence is rarely a straightforward task and dealing with someone that you suspect is not genuinely ill has always been at the trickier end of the scale.

The situation is not helped by the fact that employees who are off work on sickness absence don’t have to hole themselves up in their home and not go outside. While it is frustrating, it is important to move with caution and not make any knee-jerk decisions regarding how you will deal with the issue upon their return to work.

What is the reason that the employee is off sick and the nature of the work that they perform for you? Some illnesses which make someone unfit for work will not mean that the employee cannot continue as normal in other parts of their life.

If an employee tells you that they cannot come into work because they have broken their ankle, and then you see them on Facebook dancing on both feet without crutches in a night club, you will probably be right in doubting the truth of their sickness.

The same goes for an employee who claims they have a contagious illness. You would assume that they therefore cannot be in the presence of other people, but are then seen on Instagram hugging people at a party!

In both cases you need to follow your disciplinary procedures. Falsifying sickness absence is theft (they are being paid sick pay when they aren’t sick) as well as lying, and should be handled as misconduct, potentially gross misconduct.

Don’t however leap into action whilst they are still on sick leave, particularly if it is short term absence. Wait until they are back at work. Call them into an informal meeting (no notice necessary), show them your evidence, and ask them to provide an explanation. It is important to carry out an investigation, as you would for any other alleged misconduct – something that committees and staff do not always understand.

Depending on what they say, you should then proceed with a formal disciplinary hearing. Follow a fair procedure, however cut and dried the evidence appears.

Key to the whole process is to have print outs of any social media sites where there were posts. For example, if evidence from social media is presented to you, perhaps via another employee, you can use it in the same way as you would any other witness statements or employee tip off.

This was the situation in Gill v SAS Ground Services UK Ltd, where a colleague printed off Facebook entries showing that Ms Gill was attending London fashion week, auditioning models for her own agency and choreographing a fashion show, whilst signed off sick from her work at SAS.

The tribunal held that the employer was allowed to use this evidence in their disciplinary investigation, and that the dismissal for gross misconduct was upheld.

But the credibility of the evidence retrieved from social media does need to be tested in the usual way – for example – did the tip-off come from an employee with a grudge to bear? Has the information been taken out of context and are the dates of posting accurate?

Social media posts, including on WhatsApp, are in the public domain. There is no “right to privacy”

You need to be aware that if the illness is one such as depression or anxiety, the employee may have been told by their doctor to socialise or to undertake other pastimes that they enjoy. Particularly bad backs and mental illness issues do not get better lying in bed.

It is also worth considering that the photos that were taken and uploaded to social media were not taken recently. This is what many of my friends do so that the burglars don’t realise they are on holiday – they upload all the holiday pics once they are back home.  So don’t jump to conclusions, give them a chance to put their case across!

Managing malingerers will never be easy, but the rise of social media and people’s seemingly unquenchable enthusiasm for sharing their lives through this has brought with it a useful source of evidence for Club Managers.

Used correctly, it may prove the previously unprovable and may encourage employees to think twice before phoning in with that Monday morning “stomach bug”!

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