How to determine whether the abuse of sick leave by an employee is misconduct or incapacity
Where an employee takes excessive sick leave, the question may be raised as to whether the employee is genuinely ill or whether the employee is in fact abusing sick leave. This will depend on the facts and circumstances surrounding the employee’s absence.
Factors that may be relevant include:
- Frequency of the absence.
- Whether or not the absence always happens at a particular time.
- Whether the employee provides a medical certificate.
- The employee’s conduct around the period of absence.
The following questions may assist in determining whether the employee’s behaviour amounts to misconduct or incapacity:
- What are the dates that the employee has been ill?
- Has s/he exhausted his/her sick leave?
- Do the dates of the sick leave suggest a pattern; i.e. is the employee typically sick on Mondays and Fridays or before or after a public holiday, or after a payday?
- What is the context of the employee’s sick leave?
- Has the employee submitted sick notes?
- What do the sick notes say?
- Do the sick notes look legitimate?
- Are the notes from one or several doctors?
- Is there any evidence that suggests that there may be other reasons for the employee’s absences (e.g. domestic violence, depression)?
Generally, if medical certificates are provided, the absence should be dealt with as incapacity provided they are not suspected of being tampered with. Where there is a reasonable suspicion of abuse of sick leave, the misconduct approach should be pursued. However, a fair process must be followed and the evidence produced to support a claim of misconduct.
In a case that came before the Labour Appeal Court, the employer dismissed the employee for abusing sick leave. The employer’s evidence was that the employee suffered from insignificant complaints such as shoulder pain and was usually absent on Fridays and Mondays.
The Labour Appeal Court found that the dismissal was fair and stated that it is not always possible to differentiate misconduct from incapacity. In this case, however, the employee had had a fair hearing and had been afforded an opportunity to improve. The employee was also informed of the consequences of her actions and that it was likely to result in dismissal.