Back in 2013, the Malta Chamber of Commerce had released a report which uncovered patterns and trends relating to employees taking sick leave. Amongst the main facts that had emerged, it resulted that Monday was the most common day for calling in sick; that younger, more junior staff took more sick leave than their older and more senior colleagues; and that January and February recorded the highest incidence of sick leave.

These patterns do not only ring true for Malta. The UK, in fact, has a National Sickie Day which marks the worst day of the year for absenteeism and (coincidentally?) lands on the first Monday in February. One cannot but speculate as to whether such trends are signals of abuse.

This, therefore, begs the question - what are an employer’s rights in situations where an employee has abused of their sick leave entitlement?

In the case of Brian Bonnici vs Island Hotels Group Limited and Hospitality Services Company Limited (number 2987/ADeG) decided on 9 January 2013, the employment was terminated on the basis that the employee’s actions had lead the employer to lose the trust and confidence required in a working relationship.

The employee was engaged, at the time, as an Assistant Cost Controller and had injured his knee to an extent that precluded him from being able to work. After a visit from the company doctor, he presented a certificate with duration of three days sick leave. After the three days, the employee still could not return to work and the company doctor issued an open certificate and requested the employee to visit a specialist.

The employee had informed the company that he could potentially work but he could not stand up for long periods of time. On that the same day, Mr Bonnici made arrangements to see the specialist though, before the appointment, Bonnici was with his father who stopped at a service station to wash his car. While there, someone had seen the employee standing and washing the wheels of his father’s car and reported him to the company.

When confronted with the facts, the employee denied the claims but later admitted to them. A couple of days later the company informed Mr Bonnici that he was being terminated on the basis that he could no longer be trusted. After an effort to convince the company otherwise, he was offered a lower role with a change in his conditions. The employee however, declined and instituted a claim for unfair dismissal.

In its considerations, the Industrial Tribunal pointed out that the law specifically states that an employee may not be terminated on the basis that they no longer enjoys the employer’s confidence. Nevertheless, it also noted that an employee on sick leave also has certain obligations during the term of sick leave, where the employee should not increase the risk of prolonging their return to work. This, together with the fact that the employee had lied means that the employer would have been justified in taking disciplinary action against the employee.

Nonetheless the Tribunal still found, on the basis of law, that terminating the employment was not a good enough reason and rewarded close to €6,000 in favour of the employee. This case lies in stark contrast to one that was decided two years later in the UK. The Case was that of Metroline West Limited vs Ibrahim Ajaj, UK Employment Appeal Tribunal (UKEAT/0185/15/RN), decided on 3 December 2015.

The employee was a bus driver who reported that he had slipped on water on the floor of the toilets at one of the company’s depots and suffered an injury in his back. He claimed that the injury had rendered him unfit for driving duties and was referred for physiotherapy. The company was concerned about the genuineness of the nature and extent of the injuries and had arranged covert surveillance.

From the surveillance, it resulted that Ajaj had, in fact, exaggerated his injuries and that his abilities were inconsistent with the employee’s own reporting. The company proceeded to subject Ajaj to a disciplinary process which resulted in his immediate termination on the basis of gross misconduct. In the first instance, the Employment Tribunal found that while the company had proven that the employee was lying, it failed to prove that the employee could not carry out his duties and concluded that the employee was only partly to blame for his termination and proceeded to award reduced damages on this basis – a similar result to the conclusion reached by the Industrial Tribunal in Malta albeit based on different considerations.

On appeal, the Employment Appeals Tribunal (EAT) took a closer look at the company’s reasoning behind the termination and saw that it was actually because the company found that the employee acted dishonestly and no longer trusted him. Paraphrasing the EAT’s conclusion, it stated that if the employee ‘pulls a sickie’ he is representing that he is unable to attend work by reason of sickness. If it results that the employee is not sick, then it would amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.

If the EAT’s reasoning were to be applied to the Maltese context, it probably would not succeed on the basis that the law does not allow it. Moreover, it would be difficult to say whether evidence recovered from covert surveillance would be admissible. Having said this, the employer does have some leeway and employers may still apply measures to confirm whether an employee is genuinely sick or, in the words of the EAT, ‘pulling a sickie’. Furthermore, as evidenced from above, employers do have a right to take disciplinary action against employees who abuse of their sick leave and could potentially frame their defence differently so as not to fall victim to the law.