Most employers will have occasions when they have reason to believe that an employee may be malingering (otherwise known as pulling a sickie).  This concern may be in relation to an employee who happens to consistently suffer from flu the day after an office party, or it may be a more serious concern relating to an employee on long term sick leave. So, what can an employer do to establish whether an employee is genuinely sick or whether they have simply elected to take a ‘duvet day’?

A clause in the contract of employment that allows an employer to insist on a medical examination in such circumstances and to have access to the resulting report is a useful tool.  The easiest way to obtain access to such report is to ask for your employee to visit your occupational health provider.  If you ask an employee to provide a report from their existing GP you will have to comply with the provisions of the Access to Medical Reports Act 1988 (AMRA) which imposes restrictions on how and when an employer can request a medical report. The AMRA in general only applies to medical practioners who have ongoing responsibility for the medical care of the employee, and therefore under usual circumstances, occupational health will be excluded from these provisions.

It is also often advisable to have terms in the contract of employment, which impose an obligation on an employee on sick leave to behave in such a way that is consistent with their illness and that will not exacerbate their condition – you would not expect an employee who is off work for back pain to be out rock climbing or salsa dancing in their spare time.

In certain circumstances however, employers may feel the need to resort to the use of out of hours surveillance of employees in order to try to establish whether your employee really is as ill as alleged.

However, employers should be wary when employing such tactics as the recent case of Pacey v Caterpillar Logistic Services (UK) Limited shows.

Mr Pacey was a warehouse operative employed by Caterpillar Logistics.  Mr Pacey sustained a back injury at work and was off sick for a month.  However, Caterpillar Logistics (and its insurers) were sceptical about the extent of Mr Pacey’s injuries. The insurers therefore arranged for an investigator to follow Mr Pacey and to film his activities while off work.  The result of this investigation was video footage of Mr Pacey doing things including clearing ice from his car, driving his car, carrying shopping and walking his dog during his time off. Both the insurers and Caterpillar Logistics took this to be sufficient evidence that Mr Pacey had lied about the extent of his injuries. Mr Pacey was suspended for suspected gross misconduct.

During the investigation hearing, Mr Pacey was shown the evidence collected by the investigator, but Mr Pacey maintained that these activities were manageable despite his injury, and that light activity had in fact been recommended by his GP.

Caterpillar Logistics wrote to Mr Pacey’s GP summarising the contents of the footage (but, crucially, not sending the footage) and asking a series of questions.  Mr Pacey’s GP confirmed that he had recommended light exercise.

At a subsequent disciplinary hearing, Mr Pacey was dismissed on the basis that his claims of being too ill to work were exaggerated and false.

Mr Pacey brought a claim for unfair dismissal, which was subsequently upheld by the Employment Tribunal.  The Tribunal were influenced by several factors, one of which was that it found it “completely incomprehensible” that Caterpillar Logistics would dismiss Mr Pacey on the basis of video evidence without obtaining a formal expert opinion on the footage itself, and that the employer had “cherry picked” the points from the GP’s response to their questions, which supported their position, but had ignored those points that did not.

This case serves as a stark reminder to employers to be very careful to employ a fair and reasonable investigation process prior to terminating employment, and also, when relying on medical evidence, to ensure that a suitably qualified professional is involved in the decision making process and that feedback from the employee is obtained before coming to any decision.