Sick Notes: A Terrible Case Of Chronic Exaggeration

Year Published: 2016

Have you ever been suspicious of an absent employee? But on their return to work they present you with a seemingly valid doctor’s note? You’re not alone. Recent advances in editing software now make it easier for fraudulent documents to be created. Legal health experts are warning employers to stay vigilant of fake sick notes.

Counterfeit conspiracy

The Medical Defence Union (MDU) – which protects doctors during legal disputes – reports that doctors are now battling with fake sick notes and elaborate letters that claim to have been signed by them, but are entirely fraudulent.

Commenting in the MDU Journal Medico-legal adviser, Dr Ellie Mein, says, “There are even various websites that offer advice on how to forge a sick note convincingly, or that allow you to buy replica NHS sick notes.” Some disgruntled employers even claim to have received forms printed on letter headed paper. Upon further investigation these proved to be nothing more than convincing forgeries.

According to a 2015 survey by CareerBuilder, nearly 40% of employees have taken sick leave in the past year. Even when they weren’t actually sick. This has likely amounted to substantial financial losses for companies, particularly those with staff who are in fee earning roles.

What the Law says

Faking sick notes falls into the category of forging official documents. Therefore the employee would be violating Section 2 (2a) of the Fraud Act 2006, under ‘fraud by false representation’. The documents are untrue and the employee made them with the knowledge that they would be misleading.

What can employers do about fake sick notes?

The act of faking a sick note could be considered as a gross misconduct offence. Ultimately the employee is deliberately deceiving their employer. This could undoubtedly damage the trust and confidence in the employment relationship.

Jack Kelly, Legal Apprentice in Employment Law & HR at SAS Daniels

Jack Kelly, Legal Apprentice in Employment Law & HR

However, whilst this may fall into gross misconduct territory it’s important not to jump straight to dismissal.

If you suspect that an employee has faked a sick note you need to carry out a thorough investigation. This should anable you to establish evidence to confirm your suspicions. This needs doing before you could proceed to a disciplinary hearing.

As a general note, it is advisable to give employees a clear indication of the type of behaviour the business considers to be ‘gross misconduct’. You can do so in the contract of employment itself or in a staff handbook. That way, employees can have no doubt about what sort of behaviour is going to land them in extremely hot water.

Most businesses identify intoxication (whether from drink or drugs), fighting or other physical abuse, indecent behaviour, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination as gross misconduct offences.

If you need any assistance with regard to sick notes or if you need to review your handbook it is advisable to speak to a solicitor sooner rather than later.

For further advice on fake sick notes or any other employment issue please contact Katie Hodson on 0161 475 7670.

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