An employee who "pulls a sickie" in order to avoid attending work, would be considered "dishonest" and potentially in "fundamental breach of trust and confidence that is at the heart of the employer/employee relationship" according to a recent Employment Appeals Tribunal.

Determining the fairness of dismissals for employees untruthfully claiming to be unfit for work may just have got easier.

THE FACTS

Having slipped on a wet floor at work, Mr Ajaj, a bus driver for Metroline West, claimed he was unable to work for some time due to a foot injury. Over a period of months, he was regularly reviewed by Metroline's occupational health advisor who reported he was unfit to work. Mr Ajaj claimed he was unable to run or walk quickly, get up or sit down quickly, had difficulty dressing and shopping and couldn't drive while he was on strong painkillers (but this was only for a period of time).

There seemed to be a lack of investigation as to how these symptoms impacted his ability to actually do his job. Metroline opted for some covert video surveillance of him, which seemed to suggest that Mr Ajaj was exaggerating the limitations of his activities. However, the allegations for which he faced discipline did not include one of exaggeration but false claim of sick pay, misrepresenting his ability to attend work and false claim of injury at work.

Initially, his dismissal was found to be unfair and wrongful by the employment tribunal, but this was overturned at the Employment Appeals Tribunal (EAT). Although the employer had made some mistakes in its dismissal process, the EAT was satisfied that the employer reasonably held a genuine belief that Mr Ajaj had attempted to commit fraud, at worst, or, at least, to misrepresent and exaggerate his symptoms.

The Judge concluded that where an employee claims he is unfit to work when he clearly was is not just misconduct but serious misconduct for which dismissal is within the range of an employer's reasonable responses.

"where an employee claims he is unfit to work but clearly is, it is not just misconduct but serious misconduct for which dismissal is within the range of an employer's reasonable responses."

COMMENT

In this case, the employer's investigation included up-to-date medical reports as well as video surveillance, which might be more than most employers would have access to. They made some mistakes in the dismissal process, confusing the allegations that should have included"exaggeration" and, since it appears there wasn't evidence to support a "staged" accident at work, the last allegation was superfluous.

The employer also confused the misconduct with capability. Had they got the process right, it may not have faced the inconvenience of the subsequent tribunal proceedings, even though they were right in the end.

CONCLUSION

The most salient conclusion to draw is that, provided an employer can establish that the employee is indeed "pulling a sickie", the employer may consider dismissal. Interestingly employees are less likely to consider that their job is at risk from pulling a sickie. So employers will need to act consistently within their own business when responding to "sickies" in order to move to final warnings (if they believe the employee is remorseful and can change) or dismissal. Use of clear and well-informed medical reports and the employer's own reasonable investigations and knowledge of the employee's illness will be helpful.

Case ref: Metroline West Ltd v Mr I Ajaj

This article was originally published in Purely Payroll, April 2016