Employers should be cautious about using social media to catch out skiving employers says employment law firm Doyle Clayton.
This legal advice coincides with ‘National Sickie Day,’ the first Monday in February when staff are most likely to feign illness because of the combination of cold, wet weather and post-Christmas blues.
Rachel Reid-Ellaby, solicitor at Doyle Clayton, warns that employers who check up on absent employees via social media should be wary of potential legal ramifications:
“Remember that just because someone is active on social media does not necessarily mean that they are fit for work, so managers shouldn’t jump the gun and automatically assume the worst. The employee may well have a good explanation for their posts.
“If you do find something potentially incriminating, keep a paper trail. Take screenshots of the offending posts so you can use them as evidence.
“However, bear in mind that these will be no substitute for a proper investigation. The law is not clear as to the extent to which an employer can rely on personal social media activity as evidence of misconduct.”
Up to 375,000 workers are expected to call in sick on Monday 2nd February, according to research from the Employment Law Advisory Services (ELAS). Their survey of 1,000 people found that half of UK employers were suspicious of workers calling in sick.
“If the suspected sickie forms part of a pattern, for example if the employee calls in sick every other Monday, seek medical evidence such as a doctor’s certificate or medical report.
“Managers should also take care with how they gain their evidence. If the post is flagged to you by someone who has a known grudge against the employee, for example someone who has made a complaint against them, the alleged skiver might claim it is victimisation or harassment.
“Managers must also take care not to cyber-snoop by logging into the employee’s social media account without their authorisation. For example, if the employee always leaves it logged on this still counts as unacceptable evidence gathering! Managers must beware and avoid doing this – not only is it a breach of the employee’s privacy but may be argued to also amount to a breach of trust and confidence.
“This is a term implied into all employment contracts that, if breached, can give rise to costly contractual and statutory claims against the employer. This could include claims for a year’s gross salary up to a maximum amount of £76, 574”.