We often receive queries from employers that they have it on good authority that an employee who is on certified sick leave was spotted on Facebook on a Spanish beach or being the life and soul of a party. What you can you do if you are concerned that there has been a breach of the company's sickness and absence policy? 

Don't do what the Greater Manchester Police did anyway! In a recent case before a London court a former detective constable claimed that her management within Sutton police station had gathered private and personal data about her in order to ascertain where she was while on a period of certified stress related sick leave. 

During the case it transpired that her line manger had approached the National Border Targeting Centre to ascertain if the employee had left the UK and had allegedly obtained CCTV footage to use in an investigation about the employee's absence. The line manager also authorised a police application to Virgin Atlantic to get details of the employee and her daughter's air travel for several years. 

Unsurprisingly when these matters came to the employee's attention she sued her employer for breach of her data protection and privacy rights under human rights law. The employer has admitted fault in the case and a final ruling on damages has yet to be decided. 

While obviously extreme and unreasonable, it does raise the question of what can you do if you are concerned your employee is abusing the sick policy? 

As with most matters in employment law there is an obligation on an employer to be reasonable. In the current case the employee was certified as suffering from work related stress. Her father died of cancer while she was on sick leave and she took her immediate family to visit their wider family in Barbados shortly after his funeral. The context is always important. Employers' actions will be judged on the specific facts of the case. Therefore it is important that an employer in such a situation takes reasonable steps to ascertain the facts first.

Although an employee is not certified as fit to attend the workplace it does not automatically follow that they are not fit to take a foreign holiday or go on a night out. This is even more so if the medical issue is stress or mental health related. Employees are often encouraged by their medical advisers to take a break and let their hair down. This is not evidence of misconduct in itself. 

It is not uncommon for an employer in these circumstances to consider using the services of a personal investigator. While this may be appropriate in some cases where a personal injury is alleged, it should be approached with extreme caution. Use of PIs in respect of employees could be a serious breach of the Data Protection Acts. It will also be extremely difficult to actually use any data gathered by the PI against the employee as a result. 

Ultimately in any case of alleged misconduct fair procedures must be followed. As part of this the manner in which any evidence against an employee is gathered must be in compliance with the Data Protection Acts. This includes the use of PIs and CCTV. Any such surveillance must not be carried out in an oppressive or excessive manner. The Data Protection Commissioner is very clear on the limited use that can be made of CCTV data in respect of employees. At a minimum employees must be aware that CCTV is in place, that it is monitored and that this monitoring includes use of that data for investigation and disciplinary purposes. 

Crucially, an accused employee must always be given an opportunity to respond to any evidence gathered. Any mitigating factors that the employee puts forward must be fully considered and documented. 

In order to try and deter employees from abusing the sick leave policy it is prudent to include the following in a company's sick leave policy:

- that medical certificates must be submitted on a weekly basis;

- that employees must maintain contact with the employer on a weekly basis;

- that employees must be available for referral to the company's medical adviser at any time during their sick leave period

- that if an employee is considering leaving the country while on sick leave then they must discuss this with their line manager in advance

- that the employee may be asked to attend a return to work interview at the end of their sick leave period

- that any failure to adhere to the sick leave policy may result in payment (where applicable) being suspended and/or disciplinary action as appropriate

Sickness absences should be carefully monitored and followed up to ensure they are genuine and to deter abuse of sick leave policies.

On  a slightly separate but related note, don't forget that from 1 August 2015 employees now accrue annual leave while on periods of sick leave. 

If you need advice on this or any other employment law or data protection matter please contact our Employment Law Team - http://leman.ie/practices/employment/