Dealing with malingerers
Dealing with malingerers

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Dealing with malingerers
  • Initial considerations
  • Suggested procedure to deal with a suspected malingerer
  • Data protection issues—GDPR and DPA 2018
  • Checks on absent employee
  • Consider sick notes
  • Consider requesting a medical report
  • Be prepared to change tack
  • Formal investigation and procedure
  • Covert surveillance of the employee
  • More...

IP COMPLETION DAY: 11pm (GMT) on 31 December 2020 marks the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements come to an end and significant changes begin to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: Brexit and IP completion day—implications for employment lawyers.

The term 'malingerer' is used in this Practice Note to refer to an employee who is absent and gives illness or injury as the reason for absence, but the employer:

  1. does not believe the employee's explanation for the absence

  2. discovers later that the employee was not, in fact, ill or injured but was on holiday, and/or

  3. does not consider that the illness is serious enough to justify absence from work

The period(s) of absence involved may be entire weeks (as in the case of an employee taking sick leave to go on holiday) or a series of short-term, often one-day, absences.

It is important to identify whether the situation is:

  1. one where the employer does not believe the employee or thinks they are being lazy (a malingerer), or

  2. one where the employer believes the absence is genuine but needs to address it

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