KEY POINTS:
Last week I got the flu and was off work for four days. My partner had already had the flu so I knew what it was and although I felt very unwell I did not go to the doctor - they can't do anything for the flu virus. On one day I left the house for a short while during the day to buy food and flu medication. I ran into one of my colleagues who reported seeing me to my manager. Now I've been asked to provide a medical certificate for my time off and attend a disciplinary meeting about being out shopping while off sick. Can my employer do this when I was really sick but it wasn't worth paying to see the doctor and I went out to buy only essential items?
Employee sick leave is often a concern for employers, especially during the cold and flu season.
You may have heard rumours that district health boards are considering hiring people to check whether staff on sick leave are 'pulling sickies'.
But employers must have reasonable grounds for taking any action against staff who take sick leave.
As to medical certificates, employers are allowed to ask for proof of sickness if an employee is on sick leave for three or more days in a row (or sooner in some circumstances).
It could be a medical certificate, or some other form of proof. But your employer should have told you about this requirement when you called in sick on your third or fourth day. Employers should require proof of sickness while an employee is still sick.
Apart from the question of proof, an employer can take disciplinary action if the employee does things incompatible with being sick.
Sick leave that is not genuine can amount to misconduct.
In a recent case an employee was dismissed for taking a two day pre-booked fishing trip during his sick leave. The dismissal was unjustified because a proper process was not followed.
In another case, dismissal of an employee who called in sick then went overseas on holiday was justified.
Cases have established that employees need not necessarily stay in bed during sick leave. But this does not necessarily mean they can go shopping either.
In your case, I suggest you do visit a doctor and see if the doctor will give you a medical certificate even though you may have recovered somewhat by now.
Also, ask the doctor to express an opinion about whether an employee suffering from flu would be able to shop for essential items yet unable to attend work.
Your employer should take any medical opinion about your health and your shopping trip, as well as your reasons for going shopping into account before making a decision about what disciplinary to take against you, if any.
You should explain why you went shopping, where you went and how long it took. You may want to produce a receipt to show the items you bought were essential.
Your employer should also consider the nature of your job. It may be that because of the nature of your job you would not have been well enough to perform it, even if you were well enough to go on a quick shopping trip.
As to a fair process, your employers should already have explained their the reason for asking you to a disciplinary meeting.
During the meeting they should explain again what the allegations against you are and the reasons for them. You should be given an opportunity to bring a representative or support person with you.
You should be allowed to respond to the allegations against you.
If your employers do decide to take action against you, it must be action a 'fair and reasonable employer would have taken in all the circumstances.'
It is difficult to assess this without knowing the nature of your job, how long you shopped for and what a medical practitioner would say about your situation.
But it is unlikely a dismissal would be justified in your circumstances.
This might be different if you have been given warnings already about absenteeism, were out shopping for half a day and have a job that is not physically demanding.
I suggest you prepare well for the disciplinary meeting by consulting your doctor and producing any shopping receipt you have. If a family member or friend saw you when you were unwell, you could take them with you to explain the symptoms they observed you suffering.
Remember, when it comes to sick leave, some employers can be sensitive about 'sickies'.
The best course is to stay at home if you are on sick leave unless you have written advice from your doctor to do otherwise. If your employer questions your sick leave, they must follow a fair process and any action taken must be justified and reasonable.
