In a recent Employment Appeals Tribunal case of Metroline West v Ajaj 2015 the tribunal held that 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” giving employers the right to dismiss the employee.
Ajaj (A) had been employed by Metroline (M) as a bus driver. In February 2014 he slipped on a wet floor at work and claimed he was unable to work due to a foot injury. Over a period of months A was regularly reviewed by M’s occupation health advisor who reported A was unfit for work.
Although he was signed off sick, M grew concerned about A’s alleged injuries and arranged for covert video surveillance of A which seemed to suggest that A was exaggerating the limitations of his activities, M concluded that A’s level of mobility was inconsistent with his sickness claims. Further covert surveillance was obtained showing A doing things he insisted were beyond his physical capabilities, e.g. carrying heavy shopping bags.
A was subject to disciplinary proceedings and dismissed for misrepresenting his ability to attend work and false claim of injury at work. The Employment Tribunal found A’s dismissal to be unfair and wrongful by the employment tribunal.
M appealed the decision to the EAT who concluded that when an employee claims to be unable to attend work due to sickness, yet they are not actually ill or not as sick as they claim to be, their actions are not just misconduct but serious misconduct for which dismissal is within the range of an employer’s reasonable responses.
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. 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.
Before you can terminate employment for a fundamental breach of contract you must conduct a reasonable investigation and be able to show that the employee has in all likelihood made a dishonest representation about their condition. This doesn’t require covert surveillance; you may rely on medical evidence or social media posts. An employee can also be rumbled at a robust back to work interview.
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.
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