Malingering & Mental Health: In the Workplace
In 2019, the Centre for Mental Health uncovered 70 million days lost at work per year, with Deloitte identifying £42 billion as a direct cost to UK employers. Therefore, HR professionals have been talking about mental health in the workforce more than ever. However, the somewhat more controversial and less talked about topic is malingering in the workplace.
Psychology Today (2017) define 'Malingering' as the act of falsifying or exaggerating mental or physical ill health, for the purpose of gaining a benefit. This benefit could be Financial (such as getting compensation or sick pay), Time (lessening workload or evading work), or sometimes a Socio-emotional benefit (such as receiving attention or sympathy).
But what is the impact of malingering on the organisation and how should HR manage it?
Impact on the organisation
PSYCHR identify 5 key impacts
Direct Costs – Direct Costs are those payable to the employee or for the employee, such as statutory sick pay, company sick pay, long term sick pay (which can sometimes be full pay for 6 to 12 months or up to 70% of annual salary), occupational health assessments, counselling sessions (sometimes in addition to private medical), and directly reasonable adjustments.
Secondary Cost – Secondary costs are paid out for most employees, but the malingerer takes advantage or impacts those resources. For example an Employee Assistance Programme (which others might be waiting to use), increasing the company’s private medical insurance excess, or permanent health insurance annual premium.
Resource Costs – These are additional costs that the company incurs for resources due to the malingerer. Such as, paying overtime to other employees to manage increased workload if the malingerer is on reduced hours or a phased return to work. The company may have to pay a contractor (which is on average x1.5 the absent employees pay), typically 20% agency fees, and you are probably still paying the absent employee!
Team Cost – These are impacts on the team which are often unforeseen. More often than not, a manager does not actually recruit a contractor, they might assume that the employee is going to be back soon or maybe the cost approval process seems too cumbersome. The workload typically falls on the person below the absentee in seniority. For various reasons, the colleague takes on the workload, this may be to show they are a team player, committed, to impress their manager, or other organisational behavioural reasons.
However the risk is, that as the malingerer extends their sick leave and manager fails to make sustainable or undelayed adjustments for the workload, and there is an impact on the colleague. Maybe the manager assumes “they haven't complained” or “they can cope”. However, in 38% of cases, where one employee goes off sick with mental ill health, a second employee follows within 6-12 months. Therefore a manager should be proactive and consider wider impacts, one of PSYCHRs most popular courses is Team and Resource management, which gives tools and unique strategies to managers to effectively manage the team and resources including during absence.
Reputation – Reputational costs could be external, an impact could be a deadline is pushed back or missed for a client. An internal reputational cost could be if an employee is suspected to be malingering, and HR are not seen to be handling it, the perceived value of HR could be reduced, or the company sickness policy and procedures undermined.
How might HR identify or suspect Malingering?
There are various ways that HR might be made aware of potential malingering. Imagine you are carrying out a disciplinary process, and just before the Disciplinary Hearing the employee submits a ‘fit note’ signing them off for 2 weeks. It might be suspected that the employee is falsifying their ill health to avoid the meeting or potential consequences.
Another scenario might be that a Manager approaches you and says they recently had a performance review meeting, and informed the employee that they did not get the promotion. Soon after the employee self-certifies for 7 days, and during that time their computer activity shows that they have been applying for jobs. This may sound like an ICO data protection breach on the part of the employer, however most companies now include clauses in their employment contracts pertaining to monitoring of activity on company provided equipment. Also in some cases CCTV footage has been used to support a malingering investigation. Contact us for more information.
We can also use Absence Report Analytics to identify anomalies, especially if an HR team run monthly sickness reports. More commonly today though, Social Media posts can be at the center of malingering allegations. In a recent case PSYCHR handled on behalf of an employer, a colleague of an employee absent with depression, reported that they had seen a photo of an employee on holiday standing in the water at a beach with their thumbs up seemingly enjoying themselves.
Now most of us HR professionals are not also medical professionals, and even if we are, it is important to remember that we are not acting in the capacity of a medical professional in the workplace; and so never assume you know the symptoms or extent of the absent employees abilities. The holiday may have been recommended by a psychologist to support recovery. Also those two hours at the beach might be a short period of pleasure, whilst the rest of the time the employee is isolated at home and experiencing symptoms of depression. These two hours of pleasure do not now mean that the employee is not depressed.
10 Practical Steps HR could take:
So, what practical steps could HR take if they wanted to pursue an allegation of mental health malingering?
Usually someone reports malingering or you suspect it which starts the process
2. Assess the value of the information
In the case of the employee showing you that picture of the employee at the beach, was there a date stamp on the post, can we be sure the holiday was during the period of absence? Consider, whether the employee reporting it, could have an altera motive. This is a preliminary step before an investigation in which case the case might be dropped.
3. Open an Investigation
If you decide to open an investigation, follow your own procedures, hopefully within employment law guidelines. Select your investigation manager, he/she should be trained in carrying our full and fair investigations, they should be impartial, and preferably more senior than the accused employee, make an investigation plan, decide which witnesses may need to be contacted to minimise disruption (note PSYCHR offer an ‘Investigations’ training course for managers and HR, and also review or write Policy and Procedures)
Carry out a full and fair investigation
5. Investigation Report
Ensure an investigation report is written up and absolutely no decision on the (final) outcome is made or suggested. The investigation manager can however suggest if there requires further investigation, no case to answer, or move to disciplinary
Assuming the allegations are backed up with enough evidence, you might want to to a disciplinary process
Select a disciplinary hearing manager, notify the employee in writing of the date time location of the hearing, allegations, give all evidence, right to be accompanied, possible outcomes, allow reasonable time to formulate a response and prepare support
8. Disciplinary Hearing
Carry out the disciplinary hearing, without reasonable delay, fair process, decide on outcome
Written outcome of disciplinary hearing (be it, no further action, first written warning, final warning or dismissal), give right to appeal
10. Appeal Process
You would then progress through the Appeal process if the employee has applied in writing, within 5 days of receiving the outcome letter or within the guidelines of your internal policy, and on the basis of the only 4 grounds to appeal
So what does employment law say, what are the potential claims which could be brought against you if you wrongly accuse an employee of malingering?
Unfair Dismissal – Is considered when an employer dismisses an employee, but it does not comply with one of the 5 reasons for fair dismissal (Conduct / Misconduct, Capability / Performance, Redundancy, Statutory illegality, Some Other Substantial Reason (SOSR). Or the reason was fair, but the employer did not follow the right procedure. Also Note: that an employee can only claim for unfair dismissal if they have had 2 years’ of continuous service.
Constructive dismissal – is when an employee resigns against their will or are forced to leave their job because of the employers conduct. Usually there is a breach in the implied confidence and trust in the employment relationship e.g. the employer has not fulfilled their duty of care. Randomly lets say for instance, the employer did a bad job at keeping the investigation on a need to know basis, at the end of the investigation, it found no reason to progress, and the allegations were not supported by evidence. However, the rumours about the malingering are still being talked about, the employee raises a grievance, but no action is taken, and as the hostile environment continues the employee feels that they have no other choice but to resign and claim constructive dismissal.
Disability Discrimination – is encompassed by the Equality Act 2010, however the really relevant sections are Direct Discrimination in Section 13 , Indirect Discrimination in Section 19 , and Discrimination arising as a consequence of a persons disability Section 15.
Legal Cases & Risk
Explore the following case of an employee who was awarded £92,214 for injury to feelings, arising from disability discrimination, psychiatric injury caused by discrimination, and loss of earnings, as well as a further £4,275 for unfair dismissal totalling £96,489.
Flemming v East of England Ambulance Services NHS Trust (2015 to 2019)
Of course the risks can be litigation and financial. However, no matter how serious the allegation is, we must protect and follow the right procedures. Also, although after dismissal the duty of care ceases to be a requirement, the state of someone’s mental ill health on an ethical level should still be considered a priority.
Remember to Always
Act with compassion
Improve understanding of mental ill health
Follow fair procedures
Have awareness of legal risk or seek advice
Make reasonable adjustments
Be reasonable throughout handling
Balancing Commerciality and Wellbeing
Being aware of malingering is crucial from a commercial perspective, it can be costly to the organisation and impact other employees and resources. However, identifying mental health malingering is difficult, and the risk of misidentifying can be much higher. So it is important to train ourselves, improve our knowledge, but also gain professional advice where necessary. Our philosophy at PSYCHR is to balance commercial awareness and employee wellbeing to achieve organisational success.
To find out more or for support contact us at firstname.lastname@example.org or on +44 (0)208 350 9591.