Malingering and Fake Illness: All you need to know

UK Immigration Blog

In the office, malingering is an issue because, according to a recent survey, 50% of Americans have accepted taking a fake sick leave. Workers have a legal choice to their family and sick leave, as specified by the Family and Medical Leave Act. However, it doesn’t mean that workers won’t fabricate sick days; in reality, there’s a 50% possibility they’re lying, according to research.

This astounding figure indicates that many employers have dismissed someone for manipulating their sick leave. What should you do if you’ve fired someone who abuses their sick days, particularly if they’ve threatened to sue you? The barriers to protecting your company from FMLA offenders can be numerous. Following the termination of sick day fraudsters, there are several methods you can use to safeguard your company.

Why do people malinger?

Malingering at work is faking or exaggerating signs of physical or mental illness to avoid reporting to work or obtaining compensated time off. This might be due to various factors, including childcare concerns, travel plans, exhaustion from a long weekend, or even a desire to avoid taking on certain obligations at work, like a team goal or meeting. In the context of the company office, the term “malingerer” basically refers to situations in which an employee is absent. And it gives an excuse for illness or injury, but the employer:

  • Rejects the employee’s justification for their absence
  • and later learns that the employee had taken time off work for causes unrelated to illness or injury rather than being ill or hurt and
  • does not believe the condition is severe enough to warrant their absence due to sickness or injury.

The departure could be for a single shift, several days, or even several full weeks.

What should I do if I believe a coworker is Malingering?

Fake Illness
Fake Illness

Here are the top five tasks you must do:

Hold talks with potential returnees

You should conduct a return-to-work survey following each absence to elicit the cause of the lack. You can ask them if there is a reason for it if you have observed any patterns, or if they have a lot of frequent short-term absences. Knowing that your wants have been tracked, you are identifying specific ways. Some disciplinary action may be taken and may serve as a deterrent for an employee who intentionally misrepresents their absences.

More information about return-to-work exams is available here.

Determining the problem and examining the data.

Organizations should first determine whether there is a real problem with potential malingering rather than an actual sickness absence. For instance, does the person consistently miss work on Mondays or when a deadline is approaching? Does the person frequently miss work or take extended breaks without adequate justification? What proof is there if there is a problem? Are there any patterns in the person’s absenteeism, or is there proof that they are out having fun while ostensibly ill? Whenever a worker is absent due to illness, holding return-to-work interviews with them can help spot problems early on. And let them know that their absence will be considered and discussed. 

Manage records of Illness and Absence

Any program for managing absences must start with keeping precise records of sick days. This will make it easier to spot any trends and give you the information you need to present employees with and ask them to clarify. Even if you notice specific patterns developing, exercise caution to avoid drawing unfounded inferences. Before enforcing discipline, you must still compile convincing proof.

Request physician documentation

You should request medical documentation if your excuses are hazy, insufficient, or irrational. Requesting medical documentation may result in fewer absences as workers abruptly realize they cannot provide meaningful proof.

A GP or an Occupational Health Report are two sources from which you can acquire medical proof. You will usually need the employee’s signed consent, though. 

If they refuse or are highly reticent to consent for medical evidence, you should ask them why and if they have a valid reason. If they keep delining, you should write to them and let them know you’ll have to base your choices on the information.

Use Social Media with Caution

Social media behavior is frequently used as evidence of malingering by employers. However, exercising caution when gathering proof using social media would be best. Potential data security and privacy issues may exist, so you should only look up pertinent information.

Don’t assume anything or accept possible proof at face value because there might be contexts you are unaware of. For instance, an employee shares a photo of themselves taking a walk on the day they are absent. And it may be because getting some exercise and fresh air may have been suggested to aid in their recovery.

If you come across social media posts that don’t support their claims, you should talk to the employee about the discrepancies and give them a chance to explain themselves.

Look into the claimed Malingering

Make no assumptions about the employee and exercise caution when making choices. A well-planned investigation enables you to thoroughly consider the situation before determining whether disciplinary action is required.

Someone does not necessarily need to stay in bed and cannot exit the house just because they called in sick. If a coworker reports seeing them on the high street, you shouldn’t presume they are faking it because they might be on their way to the doctor, or their condition might benefit from some fresh air. As with any other misconduct claim, you should also look into this one. You can learn how to perform a successful investigation by reading our article, Tips for investigating misconduct in the workplace.

What should you do if your opinions are accurate?

When an employee intentionally or purposefully misleads you about their ability to perform their work, they have acted dishonestly and may be prosecuted for misconduct.

If the misconduct is severe enough, the employee may be fired for poor behavior and dishonesty rather than for lack of ability. This must be made clear to the employee because distinct procedures are used for the two. But, if they are, a claim of unfair dismissal and disability may be made.

Malingering is a conduct issue, so as an employer, you must conduct a thorough investigation. Whereas, adhering to the ACAS code of practice and your disciplinary process. It would be fantastic if you also considered any mitigating circumstances. You must refrain from making snap judgments and wait to act until the inquiry is complete. The temptation to conduct covert surveillance during the investigation may be strong, but it should only be done occasionally. If you are considering accomplishing this, you should get guidance.

The “Burchell test” will determine whether you were right to fire a worker for hoaxing before you do. If your choice s based on a reasonable suspicion of guilt, based on an appropriate investigation. It might be regarded as a fair dismissal under the “Burchell test.”

Practical measures to avoid Malingering

For each of the ten following stages, an example situation will provide a complete understanding of how to prevent malingering. In this case, an employee missed work but was subsequently photographed having a good time at a party and posted on social media.

Report or suspect Malingering:

 In light of all available data and the most recent image, suspicions start to surface, and a written message is sent to HR.

Determine the information’s value in case of Malingering:

Before beginning any inquiry, you must determine the information’s significance. Check the picture to ensure the time frame corresponds with the day the employee was away. Consider other options, such as whether the individual reporting the problem has ever been the target of a grievance filed by the absent employee. The case might be dismissed if the facts don’t match up.

Open the investigation:

If HR determines that an investigation is necessary, make sure that a senior investigation manager who has the training required is chosen. Create an investigation plan and decide which witnesses must be contacted to minimize disruption.

Conduct a thorough and impartial investigation:

After completing these steps, the investigation manager will have complete authority to look into any information relating to the case.

Gather proof against Malingering

Make sure to include all evidence in the investigation report. It’s essential to remember that the investigation manager shouldn’t have the final say in the matter. However, they can recommend whether the case needs to be looked into further. Whether there should be a disciplinary procedure, or whether it can be dropped altogether.

A separate individual from the investigation manager should be chosen to assume responsibility as the disciplinary manager if there is enough evidence surrounding the absent employee and social media post.


After the employee has been chosen, the manager must give them a written statement outlining the hearing’s date, time, and location, their right to be accompanied and by whom, the malingering charge leveled against them, and any evidence compiled, such as social media posts and written statements.

Results of the disciplinary hearing should be included, along with the material mentioned above. This may entail doing nothing, issuing a first written caution, a final written warning, or even firing someone. The disciplinary proceeding should then proceed swiftly and conclude according to a fair process.

Written outcome and right of appeal:

After the final choice, the employee should be given a letter outlining the discipline that will be taken, including developing the options mentioned earlier. The letter must include a part informing the employee of their right to appeal.

Unless the company’s appeal procedure permits further delay, the employee must respond in writing on the four grounds of appeal within five days of receiving a request.

How to stop workers from taking vacation days?

Employers should refrain from drawing unfounded inferences or false accusations of bogus sick leave when it comes to malingering. However, before deciding to take disciplinary action, you must first talk with the employee about the validity of the absence explanation. When an employee takes brief absences, you should typically wait until after they return to work before conducting a back-to-work evaluation. At this point, you can make a decision on whether to take any disciplinary action.

Any fit note the employee offers during their sick leave can be the basis for your talks when conducting a back-to-work interview. This is a note from the employee’s doctor or another healthcare provider outlining the nature of their illness and a timeline for their return to work. Workers must offer a fit memorandum if they have been ill for more than a week in a run, including visits. When an employee returns to work after being absent for seven days or less, they may be requested to self-certify, outlining the specifics of their absence.

You should urge an employee on extended sick leave or who frequently misses work due to the same illness or injury to get a second opinion from a doctor. Suppose an employee’s employment contract requires them to participate in occupational health assessments, and they only do so with good reason. In that case, it may be considered malingering for which discipline is appropriate. However, the employer must follow a fair process to avoid breaking any “disciplinary for sickness law.”

Insurance Against Lawsuits from Fired Employees for Employment Practices

It will help if you safeguard your financial interests as a company owner. The former employee frequently brings wrongful termination lawsuits against your company.

Employment Practices Liability Insurance can protect your company because it frequently entails a cash settlement or payout.  

Employer practice liability insurance, or EPLI, can shield your business from employee claims. This covers all actions of discrimination, sexual harassment, and wrongful firing. This covers wrongful termination brought on by FMLA abuse, giving you financial security for any subsequent court actions. 

Understanding that your general liability insurance and EPLI insurance are two different things is crucial. Both plans provide comparable protections, but you must purchase employment practices liability insurance if you want to be protected from employee lawsuits.  

The proper insurance coverage investment can shield your company from pricey legal repercussions.

Employment practices liability insurance, or EPLI, can assist in shielding your business from the financial effects of employee claims. Your insurer can assist in paying for legal expenses, court charges, and judgments with EPLI.

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Robert Windham
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VisaHelpUK - UK Immigration and Visa Application Advice Service
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