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By Mini Setty

May 1st, 2016

Pulling a Sickie

In Metroline West Limited v Ajaj (2015), the Employment Appeals Tribunal (the EAT) has clarified the correct approach when dealing with an employee who has "pulled a sickie".

In particular, the EAT has held that where an employee states that they are unable to attend work due to sickness when they are not actually sick, this amounts to dishonesty and a breach of the implied term of mutual trust and confidence, which is at the heart of the employer/employee relationship. ‘Pulling a sickie’ is therefore potential grounds for gross misconduct.

Background

Mr Ajaj was a bus driver. In February 2014 he informed his employer, Metroline West Limited (Metroline), that he had slipped on some water on the floor of the toilets at the bus depot and suffered an injury. Mr Ajaj claimed that he was in severe pain when moving and that he could not run or walk quickly or for long periods, he could not get up or sit down quickly, could not go shopping and had difficulties with dressing. He was declared unfit for driving duties by Occupational Health and was referred for physiotherapy by his GP.

Metroline had doubts about whether Mr Ajaj’s injuries were genuine and arranged covert surveillance of Mr Ajaj during his sickness absence. The surveillance footage showed that Mr Ajaj had been shopping and walking for long periods, which seemed to contradict the account he had given to Metroline and Occupational Health.

Metroline considered that Mr Ajaj had staged or exaggerated his accident at work and the effects of his injury and he was suspended. Mr Ajaj was subsequently invited to a Disciplinary Hearing, facing allegations that he had (1) made a false claim for sick pay; (2) misrepresented his ability to attend work; and (3) made a false claim of an injury at work. He was dismissed for gross misconduct.

The Employment Tribunal’s Decision

Mr Ajaj brought a claim of unfair dismissal in the Employment Tribunal.

The Tribunal accepted that the allegations related to alleged misconduct. However, in relation to the first two allegations, the Tribunal held that Metroline should have carried out further investigations into whether Mr Ajaj was actually fit to carry out his duties as a bus driver or not.

Whilst Metroline’s investigations showed that Mr Ajaj had exaggerated the effect of his injury on his ability to walk and move around (as shown in the surveillance footage), it held that Metroline should have carried out further investigations into whether Mr Ajaj could sit for long periods – a key part of his role as a bus driver, since this was not addressed in the surveillance footage.

The Employment Tribunal were essentially adopting the approach used in capability (ill health) dismissals, i.e. assessing when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms.

Adopting this approach, the Tribunal held the dismissal to be unfair.

Metroline appealed to the EAT, and contended that the Employment Tribunal was wrong to expect them to investigate Mr Ajaj’s capability for sitting for long periods (part of the work of a bus driver), as this was only relevant to an ill-health (capability) dismissal, and not to a gross misconduct dismissal.

The EAT’s Decision

The EAT held that that an employee who 'pulls a sickie' is dishonest and that this is also in fundamental breach of the implied term of mutual trust and confidence, which underpins every employment relationship. It held that the principal reason for dismissal in these circumstances is conduct, not capability, and so the test to be applied is that set out in the well known case of British Home Stores Ltd v Burchell.

That test provides that to dismiss an employee fairly for misconduct, the employer must be able to establish that:

  • It believed the employee to be guilty of misconduct;
  • It had reasonable grounds for believing that the employee was guilty of that misconduct.
  • At the time it held that belief, it had carried out as much investigation as was reasonable.

In this case, the employer had formed a reasonable belief that Mr Ajaj was guilty of misconduct - wrongly claiming to be more sick than he was – based on their reasonable investigations (i.e. the surveillance footage).

Accordingly, the EAT held that the Tribunal’s approach had been wrong, as it had focused on irrelevant considerations and that the Tribunal had effectively substituted its view for that of the employer, rather than considering whether the test for misconduct dismissals was met.

Comment

Whilst this was not a classic "pulling a sickie" scenario (for example, calling in sick after being out drinking the night before or to attend an event) the basic principle, that an employee who 'pulls a sickie' is dishonest will be relied on by employers in future.

Before dismissing an employee, you must have a reasonable belief, based on reasonable grounds that the employee was not genuinely sick. As such, if you suspect an employee has been "pulling a sickie", you will need to carry out a reasonable investigation - simply thinking someone didn’t sound ill enough on the phone or look unwell before they went home is not enough.

Covert surveillance of employees will not be an appropriate (or affordable) step for many businesses. However, employers should consider checking their employee’s social media posts as part of an investigation (ensure that your Social Media Policy or ICT Policy makes clear that you may monitor their activity in this respect). Facebook posts, status updates and "check-in" updates (posts which say that a person has visited a particular location) could undermine an employee’s suggestion that they are too ill to attend work. However, managers should avoid making snap judgments based on reports that a sick employee has been seen "out and about" while on sick leave from work – the circumstances of the case needs be considered carefully.

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