Employee Called in Sick but Seen Out – What Employers Can Do
It’s a scenario many employers dread: an employee called in sick but seen out socialising or running errands. Understandably, this can cause concern—especially if other team members become aware. As employment law specialists at EBS Law, we’re often asked: “What are our rights as an employer in this situation?” Let’s explore your options and how to protect your business while staying legally compliant.
Understanding the Law When an Employee Called in Sick but Seen Out
Seeing an employee out and about while on sick leave doesn’t always mean they’re faking it. However, it’s natural to question the authenticity of the absence. UK employment law doesn’t automatically deem this behaviour as misconduct, so it’s important to proceed carefully. Depending on the illness, certain activities may not contradict a genuine medical condition. For example, someone with stress or depression might benefit from a walk in the park or a coffee with a friend.
That said, if an employee is believed to be dishonest, especially if they’re claiming company sick pay or Statutory Sick Pay (SSP), it may raise serious disciplinary concerns.
Initial Steps to Take
If you’ve discovered that an employee called in sick but was seen out, take the following initial steps:
- Remain calm and avoid jumping to conclusions.
- Document what was observed, including dates, times, and witnesses.
- Avoid discussing the issue with other staff—maintain confidentiality.
It’s crucial to follow a fair and measured approach. Starting from a position of trust and gathering facts can help you make an informed decision without breaching the employee’s rights.
Is This Grounds for Disciplinary Action?
The key question is whether the employee’s activities undermine the reason given for their absence. For example, someone off with a bad back seen carrying heavy shopping might raise questions. But someone with anxiety spotted having lunch in public might not be acting inconsistently with their illness.
If you reasonably believe misconduct has occurred, you can begin a disciplinary process. Make sure to:
- Invite the employee to a meeting in writing.
- Give them a chance to explain their side.
- Follow your internal disciplinary policy and procedure.
If you don’t have a disciplinary policy in place, it’s time to implement one. We can help you with that—just get in touch.
Gathering Evidence and Managing Risk When Employee Called in Sick but Seen Out
Employers sometimes ask if they can use photos or social media posts as evidence. The answer is yes, as long as it’s collected lawfully and fairly. However, it’s best not to rely solely on hearsay or surveillance—always try to verify facts independently.
If the employee’s behaviour suggests dishonesty or even fraud, it may justify serious action. However, be cautious about accusations. A misstep here can lead to claims of unfair dismissal or breach of trust.
How to Handle Return-to-Work Discussions
When the employee returns, a return-to-work meeting is your opportunity to explore any concerns. This is a standard HR process, but in this context, it can help you ask questions about the absence and whether support is needed moving forward.
Use the meeting to:
- Ask open questions about their recovery.
- Allow them to explain their absence fully.
- Record the meeting notes for your records.
This might also be the point to raise concerns—gently—about the reports you’ve received. Their explanation could clarify everything and save you from unnecessary disciplinary action.
Preventing Future Problems
If an employee called in sick but was seen out, it may expose weaknesses in your absence policy. It’s worth reviewing your current procedures and ensuring everything is up to date. A good sickness absence policy should include:
- Clear reporting and evidence requirements.
- Employee responsibilities during sick leave.
- Return-to-work procedures.
It also helps to educate your staff on expectations—particularly around activities that may be acceptable during sickness absence. Many cases of confusion can be prevented with a clear policy.
When to Get Legal Advice When Employee Called in Sick but Seen Out
Every situation is different, and assumptions can lead to legal risk. If you’re unsure how to proceed—or worried about the legal implications—it’s wise to seek professional advice.
If you would like free advice, John Bloor and the team are here to help. Call John today on 01625 875587 or email enquiries@ebslaw.co.uk for tailored support.
Common Questions Employers Ask
1. Can I sack an employee who lied about being ill?
You may be able to, but only after a fair investigation and disciplinary process. Always seek advice before making a dismissal decision.
2. What if other staff are aware and complaining?
Transparency is key. Let staff know that the matter is being handled, but maintain confidentiality. Gossip or confrontation could create bigger HR issues.
3. What’s the best way to reduce sick leave abuse?
Strong policies, regular absence reviews, and honest communication can reduce abuse. In some cases, medical assessments or occupational health referrals may be helpful.
Final Thoughts: Striking the Right Balance
When an employee called in sick but seen out, it’s tempting to assume the worst. But assumptions alone don’t justify disciplinary action. As employers, our goal should be to protect the business without putting it at risk of a tribunal claim. That means staying fair, calm, and compliant throughout.
At EBS Law, we support employers every day with these exact challenges. We’ll help you assess the facts, manage the risk, and act with confidence—knowing you’re on solid legal ground.
Contact John Bloor today for expert support at EBS Law. We’re here to ensure your business stays protected and every step of the way. Call 01625 874400 or email enquiries@ebslaw.co.uk.
Further Reading
- Employee Sickness Management – guidance on absence data, triggers and fair responses