Ask the expert: Off sick but on Facebook

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One of our employees is on sick leave but still manages to go out drinking and update Facebook. Where do we stand? Adam Partington and Esther Smith advise.

The situation: An employee is off sick with work-related stress - but we've seen them out clubbing and have Facebook evidence of them being out drinking. What should we do?

More detail: I have a member of staff who has submitted a sick note for three weeks for work-related stress and I had been told by my other members of staff that she has been seen out in the nightclubs and had written all over Facebook that she no longer works for us.

I went on to Facebook and have seen that she has been out most nights drinking and has updated her status with things such as "I don't work at ********* anymore" etc etc. I want to invite her in for an investigation meeting. Is this right?

Legal advice:

Adam Partington, solicitor, Speechly Bircham

I think you are right to invite her to a meeting to discuss these issues. There appears to be two issues to consider.

The first issue is how to deal with her status update which indicates that she does not work for you anymore. In order to find out what her intentions are in this regard and to see if she considers herself as having resigned, you are going to have to meet with her.

If she wants to resign then you are going to need her to confirm this, at the same time avoiding pressurising her into resigning. If she does want to resign then you should ask her to confirm this in writing and ask her to specify the date she wants her employment to end.

With regard to her absence, as she is certified as unfit to work by a doctor you are in a difficult position to challenge this.

If it turns out she does want to resign then there is no need to delve into the Facebook issues, unless she raises any other issues to which this may be relevant. She could for example say she has been constructively dismissed, which you would need to deal with accordingly.

If she does not want to resign then this brings us to the second issue – i.e. whether or not the employee is genuinely ill. Is the employee's apparently active social life inconsistent with her being off work sick with stress?

It is not necessarily the case that just because someone continues to socialise that they cannot legitimately show that they are unable to attend work because of stress. It may be that the employee's doctor has told her to continue socialising to help her recover.

There is also the Facebook evidence to consider but there may be some issues with you trying to rely on this.

However, there is clearly a line to be drawn and if the employee is going out and drinking heavily it could be harder for her to justify that this is appropriate behaviour for someone supposedly attempting to recover from ill health.
 
To address this second issue you are going to need to obtain more detail from her when you meet with her to see if you need to carry out a full investigation and, if so, depending on the outcome of the investigation, what action needs to be taken. This could include disciplinary action.

The ACAS Code of Practice 2009 may be relevant and helpful. If any disciplinary or other action is taken, the employee may try to raise disability discrimination and unfair dismissal arguments so you should seek specific legal advice before taking any action.

There is also the Facebook evidence to consider; there maybe some issues with you trying to rely on this. For example was her Facebook setting public? How did you gain access to her Facebook posts? The employee may try to raise arguments about rights to privacy and freedom of expression under the Human Rights Act 1998.

* * *

Esther Smith, partner, Thomas Eggar

I have no issue with you inviting the employee into a meeting to discuss matters, and seeking her confirmation of her ongoing employment with the company. If she has resigned, or wants to do so, she is likely to confirm this. The fact that she may have changed her status on Facebook to suggest this does not mean you can infer a resignation as a result, but you can ask her about it.

With regard to her absence, as she is certified as unfit to work by a doctor you are in a difficult position to challenge this, and as frustrating as it may seem, being unfit to work due to stress is not the same thing as being unfit to leave the house or go out clubbing. However, if you have genuine concerns about whether she is really fit, you could ask her to undergo assessment by an independent doctor or an occupational health advisor to get their view.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.

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By Tori
19th Jul 2016 13:35

Have you put a social media policy in place for the staff? A must these days as it will then set the standard you expect the staff to abide by and inform them of any disciplinary action against them if deemed necessary.

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