So how can employers apply the principles that this case highlights? If you have suspicions that an employee is not as sick as they claim, then any concerns should be investigated promptly.
You should obtain as much evidence as possible, including obtaining an independent medical report on the employee. It is possible to ‘go behind’ sick notes provided by the employee’s GP, but you should ensure that you have a clear, evidence-based reason for doing so. Although this case relied on covert surveillance, it will not always be appropriate to use it. If surveillance is used, the results should always be reviewed by a medical professional. Further, be wary of placing too much reliance on an employee’s social media posts, as they may not give a true picture.
Avoid snap judgements. For example an employee who is spotted playing tennis while purportedly off with a bad back may be committing an act of misconduct, but if the employee is off with stress or depression there may be good, therapeutic reasons why they are on court.
Once it has been established that the employee has a case to answer, the normal principles of a fair disciplinary process should be followed.
Finally, employers can also help to protect themselves by making it clear in their sickness absence policies that false or exaggerated claims to be sick may be treated as gross misconduct. You can also impose a contractual obligation on employees to submit to independent medical examinations and make any contractual (but not statutory) sick pay dependant on their doing so. However, this will not override the need for the employee’s specific consent to the medical examination.