What to do when you suspect it's a "sickie"

Thursday 14 December 2006

Every employee is entitled to paid sick leave – it's the law under the Holidays Act 2003.

The leave is provided to allow employees to be away from work to recover from sickness or injury without losing pay. From time to time, however, employers suspect that sick leave is being misused and employees are calling in sick when they actually aren't – commonly known as a "sickie".

While to some it may seem inconsequential, the reality is that abuse of sick leave can be costly and disruptive for employers. It is helpful for all employers to know their rights when they suspect an employee's reason for taking sick leave is not genuine.

The law

The Holidays Act 2003 provides a minimum requirement of five days' paid sick leave per year after the first six months of continuous employment and an additional five days’ paid sick leave after each subsequent 12 month period.

Sick leave can be taken when an employee is sick or injured, or when the employee's spouse or a dependent person (such as a child or elderly parent) is sick or injured and needs care.  Sick leave can be accrued up to a maximum of 20 days. 

Proof of illness

Under the Act, an employee must notify their employer of their intention to take sick leave as early as possible before the employee is due to start work on the day; or if that is not practicable, as early as possible after that time. 

An employer may only require the employee to produce proof of sickness or injury for sick leave (ie  a doctor's certificate) where the employee is sick or injured for three or more consecutive days. 

However, an employer can request a doctor's certificate earlier than the three days if:

• they have reasonable grounds to suspect the sick leave is not genuine;
  
  
• they inform the employee as early as possible after forming this suspicion that proof is required; and
  
  
• they agree to meet the employee's reasonable expenses of obtaining a medical certificate (or other form of proof).

If the employee does not provide proof when requested without reasonable excuse, the employer has the right to withhold sick pay for the period until it is provided. 

The medical certificate

Employers may complain that a medical certificate stating "Joe is unwell due to stress and is unfit for work for three weeks" is unhelpful as it provides minimal information about the employee's situation, thereby making it difficult to investigate. It is important that an employer has enough information to determine whether it is likely to be an ongoing problem and whether the employer needs to take steps to alter the employee’s workload. A guideline published by OSH for General Practitioners in 2004 recommended that medical certificates give a definitive diagnosis, listing the factors that the employee has identified as being relevant to their employer.

The patient has the final say in what information is divulged to their employer in the medical certificate. It is of course open to an employer to ask the employee for more information where the medical certificate is inadequate. 

Dealing with suspected "sickies"

An employer who believes that an employee has misused their sick leave may deal with the issue as an employment relationship problem under the Employment Relations Act 2000.  The normal processes for raising, progressing and determining problems of employee performance should be followed. The Mediation Service provided by the Department of Labour may prove useful. 

A word of warning is necessary however – do not jump to conclusions.  A sensible approach to situations of suspected "sickies", or where there is a regular pattern of sick leave, such as an employee who often calls in sick on a Friday, may be to discuss the issue openly with the employee and convey the concern or suspicion to them.

Sometimes it may be necessary to take the matter further and address the issue as a formal disciplinary matter.  In that case, an employer must carry out a full and fair investigation.  This will generally involve a meeting with the employee to put the allegation to them, and providing them with the opportunity to explain. 

Caught in the act

A recent Employment Court case highlights some of the issues that can arise where an employee improperly takes a "sickie" and then gets caught out.

The case of Griffith v Sunbeam Corporation emphasised the importance of fair process – even where the employee was found to have lied to his employer.  Mr Griffith had been dismissed from his employment after 22 years' service, on the basis that he had abused his right to take sick leave and had deceived his employer in the course of the investigation of that issue.  Mr Griffith claimed his dismissal was unjustifiable. 

Mr Griffith called in sick on a particular day, telling his employer that he "would not be of any use to anyone".  The fact that it was a beautiful day, combined with the knowledge that Mr Griffith was currently working on a building project at home, led his employer to suspect that Mr Griffith was not actually sick. 

In the ensuing investigation, Mr Griffith was found on a building site, wearing working clothes, including a tool belt and boots. He was seen swinging a hammer and giving instructions to others.  The employer's evidence was that Mr Griffith did not appear to be at all incapacitated.

Mr Griffith's explanation was that he had been to see the doctor that morning, had been given an injection and was now feeling better. Through the course of the investigation Mr Griffith gave his employer false information about the time which he sought and obtained medical assistance on the relevant day. Mr Griffith later admitted to this deception. 

Judge Couch found that based on the information available to the employer at the time, it was open to them to conclude that Mr Griffith had abused his right to take sick leave. The employer was also justified in taking the view that if Mr Griffith was capable of working on the building site, then he was capable of coming to work. 

Judge Couch considered whether Mr Griffith's actions amounted to conduct capable of being regarded as serious misconduct. In particular, the judge asked whether it was conduct that deeply impaired or was destructive of that basic confidence or trust that is an essential of the employment relationship. His Honour said:

"The use of sick leave is by its nature, a matter requiring a significant degree of trust of the employee by the employer."

His Honour's view was that in general, abuse of the right to paid sick leave will be serious because it involves obtaining payment by a false pretence, or, at least attempting to do so. Mr Griffith's continued deception was an aggravating factor, making his "sick day" more justifiably serious misconduct.

What does the case mean?

This case shows that employers do have some means by which to hold errant employees accountable for disingenuous sick leave. However, to justify dismissal, an employer will be required to show that they carried out a full and fair investigation into the employee's alleged wrong-doing, and it was reasonable to come to a finding of serious misconduct.

Some hope for employers who suspect an employee may be abusing their sick leave is provided by a recent Californian case. The boss of Monument Security was sitting at his desk when one of his staff rang in sick.  His response to the employee was "if you say you are sick in bed how come you're eastbound on 80 heading to Reno?" The not-so-sick worker had forgotten that his boss had installed a software programme on all of his employee's mobile phones so he could tell where they were by using GPS technology.

For further information, please contact your usual Bell Gully advisor or:

AUCKLAND

Rob Towner
Partner

WELLINGTON

Andrew Scott-Howman
Partner

Matt McGoldrick
Solicitor