Feigning Illness | Wage Continuation Fraud

Sick leave is a common occurrence in the workplace and is often completely normal, for example during a widespread flu outbreak, an especially cold winter, or due to work-related health issues that are difficult to avoid in the long term (back problems for furniture movers, hearing loss from construction work, lung and bronchial diseases in mining, etc.). However, statistics published by Statista on the costs of absenteeism reveal staggering figures: in 2009 alone, German companies incurred €129 billion in costs due to employee sick leave, with lost productivity amounting to €225 billion – nearly one-tenth of the €2,397 billion GDP that year.

It is therefore no surprise that more and more companies engage the services of the Kurtz Detective Agency Munich when employees have repeated or suspiciously long sick leaves, in order to investigate potential wage continuation fraud and, if confirmed, have it documented in a court-admissible manner. Our Munich detectives are happy to assist your company: +49 89 7007 4301.

My Employee is Frequently Sick – How Should I Proceed?

Although employees’ privacy is generally protected against the interests of employers and supervisors, suspicious and repeatedly recurring sick notes do allow for enquiries that intrude into the private sphere of the employees in question. Our commercial investigators from Munich are particularly frequently engaged in cases of sick pay fraud, or sick pay fraud combined with simultaneous work for competitor companies, in order to gather evidence of the unlawful nature of the sick note and the suspected breach of contract. When a company approaches the private detectives of Kurtz Detective Agency Munich to have an employee observed, the supervisor must already be able to demonstrate a reasonable suspicion of a feigned illness. If such suspicion is not present, detectives are not legally permitted to conduct surveillance, as both they and the client would risk committing an offence by unlawfully and groundlessly infringing the employee’s personal rights — even damages may be payable.

If, however, this justified suspicion exists — for example if the secretary is conspicuously often ill directly before or after her annual leave — our Munich private detectives become active and may observe the employee outside the workplace. If an employee has presented a sick note for acute migraine, for instance, and is then observed by the detectives shopping leisurely in Munich city centre or attending a cinema visit, and this can be documented photographically, this is at least surprising. Yet the boundaries between “conspicuously active” and “necessarily active” are often fluid and not easy to define: some people prefer to cure a migraine with an extended walk in the fresh air, while others lock themselves in a darkened bedroom for 24 hours. It only becomes truly relevant for the employer and for Kurtz Detective Agency Munich once the documented behaviour is manifestly contrary to recovery — for example, if an employee on sick leave for a shoulder complaint is photographed carrying bricks while working on their own house.

Sick Note vs. Playing Truant on Sick Leave

Not every sick note automatically equates to malingering. Our detectives in Munich and throughout Bavaria are regularly deployed to either dispel or confirm suspicions and thereby contribute to a better-functioning and more economically viable business routine. Apart from the few cases in which an employee is accidentally observed by third parties or inadvertently reveals information about their period of illness in conversation, employers can rarely, if ever, provide evidence for a contractual breach without independent assistance. This is why engaging Kurtz Detective Agency Munich is advisable to obtain court-admissible evidence and to take legal action against the breaching employee. After all, cases of feigned illness often involve large sums of money (see above) and a substantial backlog of work left undone.

If it even transpires that the suspected employee worked for a direct competitor during their sick leave and is thus guilty of competition fraud, compensation claims often run into five figures — especially if the detective fees are regarded as necessary expenses for proving the offence and are included in the claim for reimbursement.

Commission a Reputable Detective Agency, Otherwise You Risk Paying Damages

As the Federal Labour Court’s decision of February 2015 (case no.: 8 AZR 1007/13) shows, various sick notes alone do not automatically constitute sufficient justified suspicion to engage detectives. In that case an employee had received successive diagnoses from different doctors — first a bronchial illness and then a slipped disc — which aroused the employer’s suspicions. He hired detectives who monitored and filmed the woman, including instances of repeated bending. The private detectives employed had insufficient understanding of the limits to their powers and undertook several unlawful intrusions into the target’s personal rights, thereby damaging the reputation of the detective industry. The Federal Labour Court ruled in favour of the employee, as there were no concrete facts to justify the surveillance and filming. Due to this unlawful conduct by the client and particularly by the improperly operating investigators, the employee was awarded damages of €1,000 for the violation of her privacy and personal rights.

The private detectives at Kurtz Detective Agency Munich are IHK-certified investigation specialists who know the permissible boundaries exactly and can advise their clients accordingly on the legal safeguards for detective operations. The above case failed chiefly because the employer’s suspicion was not concrete enough, but the choice of methods (including video surveillance) by the detective team was also disproportionate. It remains a special case in which the Federal Labour Court ruled in favour of the employee.

Professional Employee Screening in Munich

When an assignment is carried out professionally by a reputable detective agency, the client need not fear liability; on the contrary, they will be able to enforce their legal claims against fraudulent employees. The case described above would likely have been judged differently in court with regard to the claim for damages if the detectives had not filmed the person outside the company but had merely observed and, if necessary, photographed them and produced a professional investigation report. The investigators could then have been called as witnesses in court to give testimony accorded weight equivalent to that of video evidence, without having committed an intrusion into privacy by filming.

What You Can Expect from Kurtz Detective Agency Munich in Employee Surveillance:

• Professionally conducted observations
• Proportional choice of means
• Court-admissible investigation report
• Confident and truthful witness testimony by deployed detectives in court
• Fair and proportionate billing with a claim for reimbursement against the target person if they are found guilty

When in Doubt, the Deployment of Munich Commercial Detectives Helps

To obtain tailored advice for your case and to decide how best to investigate a suspicion against your employee, contact our legally trained private detectives in Munich at any time: kontakt@kurtz-detektei-muenchen.de.