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

If an employee calls in sick or is injured, they are entitled to time off in order to recover. However, there may be occasions where the employee’s sickness absence is suspicious to employers and considered “malingering”. Malingering refers to an employee’s deliberate falsification or exaggeration of illness or injury to avoid work. This behaviour poses a significant challenge for employers, as it can lead to decreased productivity, increased costs, and potential morale issues among other employees.

Malingering can manifest in several ways but there are four main types to be aware of:

• Invention of symptoms – the employee entirely fabricates symptoms of an illness or injury.
• Exaggeration of symptoms – the employee exaggerates the symptoms of an existing condition.
• Perseveration – the employee continues to claim they have symptoms for an illness/injury they had previously, but have since recovered from.
• Transference – the employee falsely attributes real symptoms to an unrelated cause, such as blaming work for a non-work-related injury/illness.

Spotting potential malingering

Identifying malingering requires a careful and sensitive approach. Employers must comply with relevant UK employment laws, including the Equality Act 2010, which protects individuals with genuine disabilities from discrimination. Employers should consider the following signs:

Regular absences or patterns

Employees may take regular or suspicious patterns of sick leave, they may coincide with weekends or periods of annual leave. Employers may also identify other suspicious sick leave, such as absences during a period of time where requested annual leave has been refused, or absences coinciding with half term or other school holidays (for employees who have children).

Inconsistency of medical records

Employers should ensure that reported illnesses are supported by credible medical documentation. Be cautious of vague or non-specific medical notes that do not provide a clear diagnosis or treatment plan. It is also important to be alert if an employee frequently changes doctors, which can be an attempt to avoid a consistent medical evaluation. This might indicate shopping for a diagnosis that justifies their absence.

Reluctance to return to work

Employees who continuously express hesitation or refusal to engage in return-to-work plans, even when medically cleared, may be malingering. Watch for resistance to modified duties that accommodate their reported limitations. Employees may also be reluctant to attend other meetings, such as grievance or disciplinary investigations or hearings. Although there can be genuine reasoning for wanting to avoid these types of meetings (e.g. stress or anxiety), it is always worth noting these absences for the record.

Observation of behaviour

Utilise social media and casual observation (while respecting privacy laws) to identify inconsistencies between reported limitations and actual activities. For instance, an employee on sick leave for a supposed knee injury might post photos of themselves engaging in physical sports. This can also be applied to employees who have secondary work.

In the case of Brito-Babapulle v Ealing Hospital NHS Trust, a hospital consultant was signed off from work, but continued to work her second job in a private hospital while receiving sick pay from Ealing Hospital. Although her dismissal was deemed unfair due to her long service, clean disciplinary record and the reputational damage to her career, her behaviour still constituted gross misconduct.

Preventing and managing malingering

Employers can implement several strategies to mitigate and address malingering effectively:

Robust policies and training

Develop clear policies that outline the process for reporting absences, the documentation required (such as medical certificates for absences exceeding a few days), and the consequences of non-compliance. Applying these attendance and absence policies uniformly across all employees can prevent claims of discrimination or unfair treatment. Consistent enforcement helps maintain the credibility of the policies. Train supervisors and HR personnel to handle absence management effectively across the workforce. This includes recognising genuine health issues, understanding legal obligations, and identifying potential signs of malingering.

Return-to-Work programmes and workplace wellbeing initiatives

Implement structured return-to-work programs that include options for light duties or phased returns. These programs should be developed in consultation with medical professionals to ensure they are appropriate for the employee’s condition. Promote a healthy work environment through wellbeing programs that address both physical and mental health. Offering support such as counselling services, ergonomic assessments, and fitness programs can reduce the perceived need to malinger.

Employers should also consider maintaining open communication channels to address employee concerns promptly. Regular check-ins and a supportive atmosphere can help employees feel more comfortable discussing their issues honestly, reducing the temptation to malinger.

Malingering is a complex issue that requires a nuanced approach. Malingering leads to decreased productivity as tasks and projects are delayed or reassigned to other employees, potentially leading to overwork and burnout. Other employees may feel resentful if they perceive that a coworker is unfairly benefiting from the system, which can lead to decreased motivation and engagement. Financially, malingering can increase costs related to sick pay, medical assessments, and potential legal fees if disputes arise. By fostering a culture of transparency and support, employers can minimise the impact of malingering and promote overall workplace wellbeing.

If you have any questions about malingering, our Peace of Mind Team can provide specific advice and our Document Audit Team can help draft relevant policies. Contact our employment law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.