The Employment Appeal Tribunal (EAT) has recently held that “pulling a sickie” when not actually ill can amount to dishonesty and misrepresentation, warranting dismissal on the grounds of gross misconduct. Whilst this may seem to be a statement of the obvious, we take a closer look at the case.

Background

In the case of Ajaj v Metroline West Limited, Mr Ajaj (a bus driver) suffered an injury at work, following which Occupational Health deemed him not to be fit for work for some time. His employer was concerned about the genuineness of the nature and extent of his injuries and therefore placed him under covert surveillance. Upon review of the footage, the employer believed that there was an inconsistency in the reporting of Mr Ajaj’s injuries, including an exaggeration of Mr Ajaj’s ability to walk quickly and carry out every day activities such as shopping and lifting. The footage demonstrated Mr Ajaj walking swiftly and also carrying large bags whilst shopping.

Following a disciplinary process, Mr Ajaj was dismissed on the grounds that he had made a false claim for sick pay, he had misrepresented his ability to attend work and that he had made a false claim of an injury at work. The Employment Judge in the first instance found that Mr Ajaj had been unfairly dismissed on the basis that, although the employer had a potentially fair reason for dismissal, there were no reasonable grounds for belief and the employer had failed to conduct a reasonable investigation in the circumstances.

EAT Finding

The EAT disagreed with the Employment Tribunal holding that it had incorrectly applied the test for unfair dismissal by substituting its own mind set for that of the employer. It held that the employer had a genuine and reasonable belief based on a reasonable investigation that Mr Ajaj had attempted to commit fraud or at least to misrepresent and exaggerate his symptoms of his sickness/injury. The Regional Employment Judge specifically stated that:

“An employee [who] “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer / employee relationship.”

Impact

Employers can have concerns about the genuineness of an employee’s sickness, particularly when seeing postings on social media about an employee’s activities during sickness absence. This case usefully confirms what many employers would have thought was the case; that “pulling a sickie” is a dishonesty offence that could warrant dismissal. However, in these instances, it is important for the employer to deal with the issue appropriately and not to forget the key aspects of carrying out a fair dismissal process. This would involve a reasonable investigation, following a fair process and having a reasonable belief in the employee’s apparent dishonesty and exaggeration of their sickness.