Suspicious an employee is faking sick leave? Read this first

Support from your HR consultant in Thanet when you suspect an employee is abusing their sick leave and you're unsure what steps you can safely take.

You've got someone off sick and something doesn't feel right.

Maybe you've seen their social media. Maybe a colleague has mentioned spotting them out and about.

Your instinct is to find proof. Get it on camera. Build a case.

But three recent tribunal cases show just how badly that approach can backfire, with one employer now facing a bill of over £329,000.

Here's what you need to know before you do anything.

What you should do first if you suspect absence fraud

Before even thinking about surveillance, there are practical steps that should come first. These are the things that actually protect your business.

• Get an occupational health referral. An independent medical opinion on the employee's condition gives you a clear picture. It tells you whether their reported symptoms match what's going on medically. Without that, you're guessing.
• Use return-to-work meetings. Every time someone comes back from a period of absence, sit down with them. Ask questions. Document what's said. These conversations build a paper trail and often flag issues early.
• Follow a structured absence management process. Having a formal process in place means you're not relying on gut feelings. It also shows a tribunal that you handled things properly if it ever gets that far.

If you've done all of that and you still genuinely believe fraud is happening, get HR advice before commissioning any monitoring. And if surveillance does take place and footage is gathered, get medical input on what it actually shows before you act on it.

Myth: if you catch them on camera, you've got your proof

This is where many employers come unstuck. They assume that footage of an employee doing something physical while off sick is enough to justify a dismissal.

It isn't. Not on its own.

Three recent tribunal cases make that very clear.

• Pilkington UK hired a surveillance company to follow a team leader who was off with radiation-induced neuropathy after cancer treatment. They filmed him helping at a friend's farm and treated that as evidence of secondary employment. He was dismissed for gross misconduct.
• Aliaxis, a plastic piping manufacturer, hired a private investigator to follow a warehouse worker off with chronic back pain. They also checked his social media. Based on footage showing him "moving freely," the employer cancelled his salary and told him he could resign, face capability proceedings, or be reported to the police for fraud.
• BMW suspected a factory worker was exaggerating chronic back pain. They hired a security firm and filmed him doing everyday things like walking and bending over his car. He was dismissed for gross misconduct on the basis of fraudulent sick pay claims.

But medical evidence supported his inability to do his physically demanding role. The surveillance didn't prove otherwise. He wasn't even receiving company sick pay at the time the footage was taken. The tribunal ruled the dismissal was unfair and discriminatory, with a remedy hearing still to come.

The common thread across all three cases

Every one of these employers gathered surveillance footage and then jumped straight to dismissal. None of them sought proper medical input on what the footage actually demonstrated. None of them ran a fair process that gave the employee a genuine opportunity to respond.

And none of them properly considered that the employee's condition was a disability, which changes how the evidence should be interpreted.

Myth: covert surveillance is always illegal

It isn't. But the bar is high.

Under UK GDPR, you need a lawful basis for collecting the data. In practice, that means carrying out a Data Protection Impact Assessment before any surveillance begins.

ICO guidance is clear that covert monitoring should only happen in exceptional circumstances, specifically where telling the employee would undermine the investigation. It also needs to be proportionate and time-limited.

There's a big difference between targeted monitoring of someone you have specific, documented reasons to suspect, and watching someone because you've got a hunch.

One thing that strengthens your position significantly is having a policy that tells staff covert surveillance may be used in certain circumstances. If employees are generally aware that monitoring could happen, you're in a much better place if the evidence is ever challenged.

Why disability makes this so much riskier

Chronic back pain and neuropathy are both disabilities under the Equality Act 2010. So is myofascial dysfunction. These conditions don't always look obvious from the outside, but they still qualify.

If the employee's absence is connected to a disability and you surveil them and then dismiss them, you're exposed to claims for both unfair dismissal and disability discrimination.

Here's the financial reality. Disability discrimination awards have no cap. And from January 2027, the compensation cap for unfair dismissal is being lifted too. That means there would be no ceiling on what a tribunal could award if it ruled against you.

The Pilkington case gives you a real-world example of what that looks like: over £329,000.

Questions worth asking yourself

If you're dealing with a situation like this right now, take a step back and consider:

Have you referred the employee to occupational health to get an independent medical view?
Do you have a documented absence management process that you've been following consistently?
If you're thinking about surveillance, do you have specific grounds for suspicion or is it more of a feeling?
Does your business have a policy that covers the possibility of covert monitoring?
Have you considered whether the employee's condition could be classified as a disability under the Equality Act?

How I can help

I work with small businesses on absence management, occupational health referrals, and fair investigation processes. These are the areas where HR consultancy services in Thanet can make a real difference to how protected your business is.

If you suspect someone is taking advantage of their sick leave, I can help you handle it properly. The right process protects your business. The wrong one creates a much bigger problem than the one you started with.

As an outsourced HR consultant in Thanet, I'm here to talk things through confidentially and help you work out the best next step.

Get in touch if you'd like to have a conversation about your situation.