With ANZAC Day falling on a Tuesday this year, it’s likely some employees will be tempted to call in sick – so what can HR do if they’re convinced a worker’s sudden illness isn’t genuine?
“It’s a tough one because, in an employment setting, it’s really difficult to prove that an illness is not authentic,” says Laura Scampion, a partner with DLA Piper.
Under the Holiday’s Act, an employer can require an employee to provide proof of sickness if they take leave for three or more consecutive days – but that doesn’t help in today’s situation.
“Lots of employees are going to be calling sick for just Monday which means you can’t require the employee to go and get a medical note at their own cost,” explains Scampion.
“However, an amendment to the Holidays Act says that an employer can require proof from the employee within those three consecutive days if they meet two requirements.”
According to Scampion, if an employer wants proof of sickness within three consecutive calendar days, they must inform the employee at the earliest possible opportunity that proof is required and they must also agree to meet the employee’s expenses in obtaining the proof.
“That sometimes is a disincentive to the employer because they will need for to pay for the employee to visit the GP and obtain a certificate but it can also be a disincentive to the employee because they have to go to the bother of seeing a GP,” says Scampion.
The Auckland-based employment expert also warns that most GPs will take the word of their patients, so organisations shouldn’t rely on such a visit to expose any insincere ailments.
If an employee does provide a sick note but HR is still convinced the sickness wasn’t genuine, Scampion says they should only pursue the matter under very limited and specific circumstances.
“If the employee has a medical certificate, we would not advise an employer to look behind the illness unless they had very good proof that the employee wasn’t ill,” she says.
Solid proof could come in the form of photographic evidence which makes it clear when the picture was taken – at a concert for example – or clear correspondence from the employee that they were at a certain place at a certain time.
“That could be grounds for starting a misconduct disciplinary process in terms of inviting the employee to a meeting and saying; ‘You called in sick, we took that as legitimate, but we’ve now seen these photos and it appears as if you were not sick,’” explains Scampion.
While there are some avenues for employers to explore, Scampion says it would be best for organisations to address issues such as this head of time.
“We would advise employers – particularly if they’d had problems in the past – to send a gentle email reminding employees that although Tuesday is a public holiday, Monday is a normal working day so they will be expected in the office unless they’ve booked time off,” she tells HRM.
Scampion also says it would be prudent for employers to remind employees of the company’s annual leave booking procedures and perhaps even encourage staff to take the time off if they wish to enjoy a longer break from the workplace.
“That just sends a message that the employer is thinking about it, they’re active in relation to it and they’re communicating with their employees about what their expectations are,” says Scampion.
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