Absenteeism, sickness and accident simulation

Sickness and accident are conditions that prevent a company’s employees from working for a certain period of time.

In such context, a distinction should be made between an absence from work that is justified, truthful and adequately proven, and the one that is unjustified and illegitimate, which is achieved through a simulation of the state of illness or injury by the employee, who falsely declares that he/she is incapable of performing the work duties in order to achieve the goals which are incompatible with what has been declared to the company.

The most frequent situations of unlawful absenteeism occur in cases in which the employee declares an unavailability to work with the specific purpose of being absent from the usual job in order to perform another (the so-called double job) or with the clear aim of delaying the recovery from illness consequently the return to work, by prolonging the non-availability.

Such unlawful conduct, when adequately proven, may lead, due to its intrinsic gravity, to the dismissal of the employee. The conduct concerned is in fact incompatible with the declared state of illness or injury, and is so serious and offensive as to irreparably damage the relationship of loyalty and trust existing between the party concerned and the company. In addition to the breach of trust, the employee, by behaving in such a manner, also breaches the duties of good faith and fairness inherent in the employment relationship.

Moreover, doing another job while on sick leave or in an accident is behaviour that may compromise or slow down the worker's recovery, exposing him to risks that may delay or prejudice the return to work. Indeed, one of the duties of a worker absent due to illness is to observe all the necessary precautions for his or her recovery so that work can be resumed as soon as possible.

In such cases, therefore, the worker, by engaging in activities that are by their very nature contrary to the declared state of health, commits unlawful acts that are punishable by law.

Such illegal conduct also has an adverse impact on the organisation and productivity, since the company, in order to cope with absences due to accidents and/or illness, is forced to redesign its internal programmes, increasing the workload on active employees and/or resorting to other workforce (hiring temporary workers and/or other collaborators) to replace sick and/or injured workers.

To counter these misconduct phenomena, companies can turn to investigation companies in order to ascertain the behaviour of absentee employees. In particular, the focus will be on those workers who record a suspicious or even abnormal rate of absenteeism. If in fact the employer suspects that the illness occurs too frequently, or that it does not exist at all (fake illness), or that it is not such as to determine a state of inability to work that justifies the employee's absence, the organisation has the option of resorting to so-called secret observation through private detectives who will ascertain the veracity or otherwise of the employee's inability to work.

At the conclusion of the surveillance, an investigation report will be drawn up, accompanied by video-photographic material, which will be delivered to the employer. This report will have legal value and can be used by companies to bring in a lawsuit against their employee.