Calling out a RAT

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WHAT EMPLOYERS CAN DO IF THEY SUSPECT AN EMPLOYEE IS USING A FAKE RAT RESULT

With increasing stories of positive RAT results being sold online and the enticing prospect of a seven day holiday, the risk of sick leave fraud in workplaces is ever increasing. So if you have suspicions and want to call out a RAT, here’s what you can do.

Of course, if an employee is genuinely unwell, taking sick leave is what they are entitled to do. In most cases a picture of the test or a simple text will be enough to satisfy an employer as proof of this. But in some cases there can be real cause to believe that a RAT may be just that, a rat, and in these situations you may be able to ask for further proof.

Section 68 of the Holidays Act sets out that an employer can require an employee to provide proof of sickness if they have been sick for a period of three or more consecutive calendar days. If an employer doesn’t want to wait for those three days to pass, they can require proof of sickness before this, so long as they inform the employee that proof is required as early as possible (likely, this would need to be right after the employee called in sick or as soon as evidence came to light which suggested the sickness was disingenuous) and they agree to meet the employee’s reasonable expenses in obtaining the proof.

So what is “proof”?

The Holidays Act states that “proof of sickness or injury may include a certificate from a health practitioner”. It is implicit in the use of the word “may” that this definition is not exhaustive, and proof can be adduced in other ways. Some employees may argue that a picture of the positive result should be sufficient proof to satisfy their employer, but considering the increasing ease of purchasing, borrowing or forging RAT results, an employer is likely justified in requiring something more. This could include requesting that the employee obtain a certified test or obtain a medical certificate from their doctor.

When considering whether to ask for further proof, caution and reasoned judgement should be exercised. Being unnecessarily inquisitive into a genuine employee’s RAT result could undermine good working relationships and foster a working environment where they feel they are not trusted. On the same par, where there is a reasonable belief that a test is fraudulent, not requiring proof could be equally undermining to the ongoing working relationship. It may also put further pressure on already under-staffed businesses.

How can we help?

If you think an employee is using a fake RAT result we recommend talking to our highly experienced, trusted Employment Law team about what approach is best in your situation. We can help guide you through your rights and obligations and what to do next if a test is, in fact, fake.  You can view our Employment Law team here.

WRMK Lawyers takes all reasonable care to make sure that the information in this article is up-to-date and accurate at today’s date. It is necessarily general information and not intended as legal advice to be relied upon.

Our thanks to Kezia Purdie for writing this article.


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