Sick employees posting pictures on social media

Posted in : Seamus Says - Employment Law Discussion on 25 September 2017
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q. In sickness cases where an employee creates posts on social media platforms that may contradict or undermine their reasons for absence, to what extent is it reasonable for the employer to address this with the employee?

Say you’ve spotted something on Facebook or Snapchat or whatever that this “sick” employee is skydiving or whatever and they’ve got a sore back. What can you do about that as an employer?

Seamus: I’ve had a number of similar cases myself where this has happened and we’ve had a number of cases where employees are off on sick leave and then they’re on social media doing various activities that concern the employer that if the employer is giving them sick pay, that they’re also then doing things that wouldn’t be helpful to recovery of their position.

My view is always that you need to be very careful about that. Certainly, from prior tribunal claims as well, it’s not something that the employer wants to react rashly to. A phone call or a welfare meeting with the employee when something like that flags up would be very helpful.

I’ve had cases in the past where we’ve had particularly underlying mental health issues, where...I know you mentioned skydiving. That would be fairly clear-cut, if someone’s off with a bad back but they’re able to skydive. But, under mental health issues, it’s important not to jump the gun and make assumptions. I had a case previously where the GP came back to say the activities that the employee was undertaking were helpful for his recovery and would have aided his recovery.

That was surprising for the employer to learn that, but that was what the employer had and the route they had taken. So, careful about not jumping the gun. But I think where it’s obvious that there are clear problems arising from maybe it’s photographs or postings to say, “I’ve done X, Y and Z,” I think the first step on that is to arrange a welfare meeting with the employee but don’t dive into sending a disciplinary letter.

Scott: This is a big problem where the employer jumps to conclusions because it could well be in the best interest of therapeutic...

Seamus: Yes.

Scott: I’d argue skydiving is a bit easier to spot.

Seamus: The employer may say, “I know there’s nothing wrong with this employee and I’m annoyed and upset and frustrated by it.” Sometimes you can act rashly, but it’s best not to, I think. Gather your evidence, maybe print off because sometimes they can put them on social media and they can be taken off. Make sure that you get copies of the time and then I think it’s about setting up your welfare meeting and maybe using your welfare meeting partly as an investigator to what the circumstances would be.

Scott: It often comes down to relationships at work. The employer jumps in thinking, “I’m going to get that person. I’m going to get them.” So, they go looking for evidence and ignore all the contradictory stuff that says it’s in the employer's interest for the employee to be on holiday.

Seamus: Once the wheels of the wagon are set in motion sometimes, it’s hard to come back from that as well.


This article is correct at 25/09/2017

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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