Playing the system: Is my employee trying to avoid a disciplinary hearing by being off sick?

Since starting disciplinary proceedings against an employee they have been off sick. I think they are just playing the system, what can I do?

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Being invited to a disciplinary hearing is enough to make anyone feel sick, however some employees may try to avoid the hearing or delay the process by calling in sick when they are not really unfit for work, in order to delay or avoid an inevitable (in their mind) dismissal. 

Whether you think they are ‘swinging the lead’ or not, you have to behave appropriately and treat them as if they are genuinely sick, unless you find evidence to the contrary.

So can I carry on with the process?

You can certainly carry on with your investigations, however, it may be appropriate to postpone hearings whilst they are covered by a Fit Note (Statement of Fitness for Work from your GP or hospital doctor. Fit Notes are sometimes referred to as medical statements or a doctor's note). Take advice from HR on this point before you do this.

What about if they are on suspension? Do they have to submit a Fit Note if they claim to be sick then?

If an employee claims that they are too sick to attend a meeting with you, the normal sickness reporting and pay rules apply.  They can self-certify for the first seven days of absence. They only have to submit a Fit Note if they have been absent due to sickness for eight days or more. 

Do I have to carry on paying them full pay?

Suspension is usually on full pay, however, if they are off sick, you should consult their contract of employment or employee handbook to assess what they are entitled to be paid. If they are off sick, there should be sick pay.

If they are entitled to contractual sick pay, pay that. If they are entitled to Statutory Sick Pay (SSP), pay that (NB: check whether the first three days can be classed as ‘waiting days’ where there is no obligation to pay them). If you operate a discretionary sick pay scheme, exercise your discretion whether to top up their SSP or not.

So if we offer Statutory Sick Pay, we can stop paying full pay and pay them SSP only?

That’s right.

A colleague has told me that the employee has admitted to them that they were playing the system in order to continue on full pay until they got another job.  Can I challenge the employee regarding this?

This depends on your source and whether they have given you permission to disclose this information to the employee. It may not be possible to challenge the employee without compromising the source who may be afraid of repercussions from the employee.  

If you have permission to disclose this information, you are entitled to raise this with the employee at an appropriate time.

Sometimes it’s not a bad thing to know that the employee has an exit strategy. If the employee resigns during a disciplinary process, it may be difficult for them to argue that they have been constructively unfairly dismissed. They may also resign with immediate effect, meaning that you don’t have to continue with the disciplinary process or pay them in lieu of notice.

Someone has asked us for a reference for the employee as they have been for a job interview whilst covered by a Fit Note with us. Is this allowed?

You can challenge the employee and it may be grounds for further disciplinary action if they are fraudulently claiming sick pay when they are not genuinely sick but that is difficult to prove and remember that their resignation may be a good thing.

I don’t want the employee to leave. They have got the wrong end of the stick and following my investigation, there may be no disciplinary action or a low level sanction after the hearing. Can I tell them?

Starting a disciplinary process doesn’t have to result in disciplinary action.  If you don’t want to proceed with a disciplinary hearing, tell the employee sooner rather than later and explain your reasons to them. If they are suspended, tell them that they can return to work at the earliest opportunity – which may be on expiry of the Fit Note.

If you do want to have a hearing, the letter inviting the employee to the hearing with you should set out the potential sanctions so you can use this as an opportunity to share what’s in your mind.

Remember that every case is different and should be judged on its own facts.  If you suspect that an employee is playing the system, contact your HR support to explore what you can do about it.

Nickie Elenor

I have been an employment law solicitor for 15 years.

I set up Your HR Lawyer as I was fed up with the call centre models and poor service provided by the big HR support providers. So my mission is to provide the creditable alternative. I am passionate about helping employers navigate through the sometimes complex world of Employment law in a commercially savvy and straight talking way.