The first Monday in February has entered modern legend as “National Sickie Day” – the day when employees are most likely to pull a sickie, says Rachel Reid-Ellaby of Doyle Clayton.
Managers face a dilemma with absentees they suspect of skiving, and checking up to see what they are posting on their social media is certainly tempting: “Just why is James posting a picture of a football game when he’s supposed to be on his sickbed?”
However, remember that the employee remains innocent until proven guilty. They may well have a good explanation for their posts. So ask them for an explanation and don’t jump in with accusations on their return.
If it is a one-off sickie, there is not much employers can do without strong proof. But, if the 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.
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, she or he might claim that they are being victimised or harassed.
Also take care not to cyber-snoop. If the skiving suspect always leaves their account logged in on their work computer, looking at it this way is still unacceptable and could constitute a breach of the implied term of trust and confidence, potentially giving rise to claims for a year’s gross salary up to a maximum of £76, 574.
My advice to employers is that, just because there isn’t much case law in the area, this does not mean that employers can check up on employees’ social media overzealously.
Rachel Reid-Ellaby is a solicitor at specialist employment law firm Doyle Clayton.