According to recent YouGov research, around 9 million British workers have ‘pulled a sickie’ in the past 12 months, costing the economy approximately £34m in lost revenue. It will come as relief to employers, that the Employment Appeal Tribunal (EAT) recently confirmed that ‘pulling a sickie’ when not really ill can amount to dishonesty and misrepresentation and may warrant dismissal on the grounds of gross misconduct.
This may seem obvious, but it is important that when employers are faced with such cases, they choose the right reason and the right way to dismiss.
In the recent case of Ajaj v Metroline West Limited, Mr Ajaj, a bus driver, was declared unfit for work by the Occupational Health Department after he suffered an injury in the workplace. He provided a GP’s note confirming his injuries but the employer suspected that the description of his injuries was exaggerated.
The employer began surveillance which showed that Mr Ajaj’s abilities were indeed inconsistent with his own reporting of those injuries, including an exaggeration of his ability to walk quickly and carry out every day activities such as shopping and lifting.
Mr Ajaj was invited to attend a disciplinary hearing to consider three allegations:
1. He had made a false claim for sick pay.
2. He had misrepresented his ability to attend work.
3. He had made a false claim of an injury at work.
Following a disciplinary hearing, he was dismissed on those grounds.
The EAT held that the dismissal had been fair on the basis 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 EAT went on to state that employees who ‘pull a sickie’ when they are not sick, are dishonest and in fundamental breach of the trust and confidence that is at the heart of their relationship with the employer. The reason for dismissal should therefore be treated as misconduct as opposed to capability or SOSR.
Message to employers:
• Ensure you have correctly identified the potentially fair reason for dismissal.
• In order to establish a fair dismissal in cases of misconduct, you will need to show that: (a) you believed the employee to be guilty of misconduct; (b) you had reasonable grounds for believing that the employee was guilty of that misconduct; and (c) you carried out as much investigation as was reasonable in all the circumstances of the case.
• Covert surveillance is not always appropriate, particularly in mental health cases. Reliance on it alone to generate a reasonable belief that your employee is pulling a sickie can be risky.