The Fit Note (or its full title of ‘Statement of Fitness For Work’) provides information to employers on short-term and long-term health conditions affecting individual employees, and the likely length of time they will be absent from work. But in the age of Covid-19, where there are more genuine reasons for employees to be absent, there are also more opportunities for malingers to take advantage.
The Rules on Fit Notes
If an employee is absent for more than 7 consecutive days (including weekends and bank holidays), they are legally required to provide their employer with a Fit Note, signed and issued by a GP or hospital doctor. It details when the employee was medically assessed, their condition, and the likely period of time they will be unfit for work. It also clarifies whether the GP/Doctor feels the employee is unfit for some work, or unfit for all work and whether any adjustments should be considered.
For absences of up to 7 days, employees can self-certify, in writing, their absence and the illness that caused it. However…
New Fit Note Rule Adjustments In Light Of The Pandemic
The government has recently introduced new temporary rules whereby employees may self-certify for their first 28 days of sickness. This applies to:
- Sickness absences that ended in fewer than 7 days as of 17 December 2021; or
- Sickness absences that started on or after 17 December 2021 and last until 26 January 2022.
The aim of this change is to alleviate pressure on GPs during the pandemic, and is currently due to end on 26 January 2022, although this date may be extended.
Special Provisions For Covid-19
Statutory Sick Pay (SSP) entitlement usually commences on the fourth day of sickness absence (the first three days are known as ‘waiting days’). However, an employee is currently entitled to SSP from the first day of absence, where they have isolated for at least four days and where the following criteria applies:
- They are exhibiting, or are living with someone exhibiting Covid-19 symptoms;
- They have tested positive, or are living with someone who has tested positive for Covid-19;
- They have been notified by the NHS that they have been in contact with someone with Covid-19; and/or
- They have been advised to self-isolate by a medical practitioner.
*Please note, at the time of writing, the self-isolation rules currently advise an individual does not need to self-isolate if they do not have symptoms and live in the same household as one or more people who have tested positive, when they meet the following criteria:
- They are fully vaccinated – meaning they have had 2 doses of an approved vaccine;
- They are aged under 18 years;
- They have taken part in or are currently part of an approved COVID-10 vaccine trial; and
- They are not able to get vaccinated for medical reasons.
(It should also be noted that asking an employee for their vaccination status, while legal, is rather tricky when it comes to matters of data protection, and increases the risk of discrimination claims. Please refer to our Q&A blog post for more detail on this.)
Malingers In The Era Of Covid-19
Malingering refers to an employee who fakes or exaggerates symptoms of ill health to justify absence or to get paid time off work. Typical reasons can range from avoiding difficult work tasks, to recovering from an exceptionally heavy night out or going on holiday.
An employee is usually considered a malingerer where:
- The employer has a strong reason to not believe their explanation for their absence;
- The employer does not consider the illness serious enough for time off; and/or
- The employer later discovers that the employee was not ill, but absent for other reasons.
With the government’s update to the Fit Note rules, employers may also be faced with the challenge of a new brand of malingerer who may take advantage of the long extension to the self-certification period.
The first of the government’s special Covid-19 provisions – time off for exhibiting or *living with someone exhibiting Covid-19 symptoms (see above paragraph with *) – may be the most challenging. Symptoms closely identified with Covid-19, can also be attributed to the common cold, winter chills, dry air through use of indoor heating, and much more.
It is also very easy to claim that you have symptoms of Covid-19 when you don’t. How will anyone know? And what employer wants to take the chance of getting it wrong by insisting someone who really does have Covid-19 come into the workplace?
What is an employer to do?
Steps For Reducing Malingering
If you suspect you have a malingerer, don’t jump to conclusions or make baseless accusations. A proper investigation and, where applicable, a fair disciplinary procedure is essential. Not following this route can result in broken trust, angry resignations and claims for constructive dismissal.
You may approach suspicions of malingering as a potential misconduct matter, and you must give the employee the opportunity to explain their side of the story. You should also consider the reasons why you suspect the employee of malingering;
- Is it because they have a long history of patchy absence, coupled with explanations that are full of holes and largely inconsistent?
- Is it because the employee is being very reticent about explaining their reasons for being absent?
- Is it because the employee has been seen out and about while on sickness absence?
Whatever has triggered your suspicions, you must conduct a proper investigation. Someone with patchy absence and poor explanations may have personal challenges they are keen to keep private. Someone who appears to be holding back on details may be struggling with their job role but fears admitting it to their managers due to the potential repercussions this may have. Someone who is certified as unfit for work may not be so incapacitated that they cannot leave their home to carry out essential errands, such as collecting medication, or light exercise (often important in cases of poor mental health). Of course, you will have genuine malingerers who will want to gain as much as they can for the least amount of effort, and conducting full investigations will help you weed out these individuals and target your disciplinary actions appropriately.
Now for the Covid aspect…
Unfortunately, the new and frequently-changing nature of the pandemic means there is no perfect solution, and it is something that employers will have to deal with to an extent – if an employee is taking absence on the basis of Covid and you suspect they are taking advantage, it comes down to making a decision between addressing the employee’s potential to be malingering, versus getting it wrong and risking your workforce’s health and safety if the employee is being genuine.
But there are steps you can take to limit malingering:
Conduct Back-to-Work Interviews.
Conduct interviews on an employee’s return to work, in addition to their self-certification. This should include a welcome back, asking them to give reasons for their absence, verifying they feel fit enough to return, carefully checking on any potential capability issues (more on this shortly), identifying any adjustments to their work or environment that may be needed, and updating them on any important changes or events that may have happened in their absence. You should also record their dates of absence, and have them sign this to confirm it is true and accurate. While the presence of these interviews should help discourage malingering, it is important that they are not presented in a tone to intimidate – employees who feel that they genuinely need to take sick days should feel comfortable in doing so.
Investigate Capability Issues.
A capability issue, resulting in an employee’s failure to meet an employer’s standards, can also trigger absences. These often stem from problems over which the employee has little to no control, such as an illness, disability, or lack of resources, making it challenging for them to carry out their tasks. Addressing these can involve making adjustments to the role, providing support or counselling, or providing training to help the employee to improve.
Invite the employee to an independent medical assessment.
If, after conducting the first two steps, you still feel suspicions of malingering, you can invite the employee to take part in an independent medical assessment, justified by the likelihood that they will not have visited a GP if self-certifying. If you have Contracts of Employment that include a provision for employees taking part in occupational health assessments but they refuse with no good reason, this could indicate malingering.
Conclusion
At the risk of sounding repetitive, Covid-19 is an unprecedented event that we are learning to live with as we go along, so there are often no perfect solutions for the challenges it presents. For every person who sees an opportunity to grab an easy ride, there will be several experiencing genuine issues with health, caring responsibilities and work capabilities.
The best we can do, at this time, and to preserve work relationships and the integrity of our organisations, is to listen and be accommodating where employees express a need, but to ensure we have solid processes in place that can help us confidently and effectively separate the ‘Put ons’ from the ‘Put upons’.