By Daniel Hunter
It's 'National Sickie Day' today (Monday).
The first Monday in February is considered to be when employees are most likely to pull a sickie, according to various studies. The combination of cold, wet weather and post-Christmas blues means that employees just can’t face getting out of bed.
But law firm Doyle Clayton is warning managers that they need to take care when checking up on suspect skivers to see if they're on social media.
Doyle Clayton said it can be really tempting to see whether or not employees suspected of pulling a sickie are posting pictures of their holiday piña coladas or tweeting about being at Old Trafford watching a match.
However, Rachel Reid-Ellaby of Doyle Clayton Solicitors warns that employers who check up on absent employees in this way need to tread with care, or else they could find themselves in legal trouble.
She said: “Remember that just because someone is active on social media does not necessarily mean that they are fit for work, so managers shouldn’t jump the gun and automatically assume the worst. The employee may well have a good explanation for their posts.
“If you do find something potentially incriminating, keep a paper trail. Take screenshots of the offending posts so you can use them as evidence.
“However, bear in mind that these will be no substitute for a proper investigation. The law is not clear as to the extent to which an employer can rely on personal social media activity as evidence of misconduct.
“If the suspected sickie forms part of a pattern, for example if the employee calls in sick every other Monday, seek medical evidence such as a doctor’s certificate or medical report.
“Managers should also take care with how they gain their evidence. If the post is flagged to you by someone who has a known grudge against the employee, for example someone who has made a complaint against them, the alleged skiver might claim it is victimisation or harassment.
“Managers must also take care not to cyber-snoop by logging into the employee’s social media account without their authorisation. For example, if the employee always leaves it logged on this still counts as unacceptable evidence gathering! Managers must beware and avoid doing this - not only is it a breach of the employee’s privacy but may be argued to also amount to a breach of trust and confidence.
“This is a term implied into all employment contracts that, if breached, can give rise to costly contractual and statutory claims against the employer. This could include claims for a year’s gross salary up to a maximum amount of £76, 574”."
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