Case update (1): Sickness absence – Pull a sickie at your peril

Summary: Is ‘pulling a sickie’ dishonest and sufficient to amount to gross misconduct?

Yes, says the EAT in Ajaj v Metroline West Limited available here.

Facts: Mr Ajaj, a bus driver for Metroline West (‘Metroline’), slipped on a wet floor at work and claimed he was unable to work for some time due to a foot injury. Mr Ajaj claimed he was unable to run or walk quickly, get up or sit down quickly, had difficulty dressing and shopping and couldn’t drive while he was on strong painkillers.  Mr Ajaj was regularly reviewed by Metroline’s occupational health advisor over a period of months who reported he was unfit to work.  There were also corroborating reports from Mr Ajaj’s physiotherapist.

Despite these reports, Metroline was concerned about the genuineness of the nature and extent of Mr Ajaj’s injuries.  Therefore Metroline placed Mr Ajaj under covert surveillance. Upon review of the footage, Metroline believed that there was an inconsistency in the reporting of Mr Ajaj’s injuries, particularly as the surveillance 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, misrepresented his ability to attend work and made a false claim of an injury at work. Mr Ajaj brought a claim for unfair dismissal.

The Tribunal found that Mr Ajaj had been unfairly dismissed on the basis that, although Metroline had a potentially fair reason for dismissal, there was no evidence that Mr Ajaj had exaggerated his inability to perform his duties under his employment contract and, in any event, the fairness of dismissal should be assessed based on traditional ‘capability’ considerations, i.e. when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms.  Metroline appealed.

The EAT upheld Metroline’s appeal and found that although Metroline had made some mistakes in its dismissal process, the Tribunal had been mistaken in assessing the fairness of dismissal based on capability grounds. Rather, the principal reason for dismissal of a malingering employee is conduct, not capability, and the procedures to be followed are the traditional disciplinary processes of investigation and acting within a ‘range of reasonable responses’ when making a decision to dismiss. Further, the EAT concluded that when an employee falsely claims he is unfit to work, it is not just misconduct but serious or gross misconduct for which dismissal is within the range of an employer’s reasonable responses.

Implications:  Good (but not unexpected) news that provided an employer can establish that an employee is “pulling a sickie”, it may consider summary dismissal on the basis that dishonesty about illness and injury is gross misconduct.  However, if the dismissal is to be fair, employers will have to be able to show that they genuinely believe the employee guilty of gross misconduct, have reasonable grounds for their belief in the misconduct alleged, having conducted a reasonable investigation.

The other comfort for employers in this case is that, in certain circumstances, evidence obtained covertly, such as cctv footage or activities reported on publicly available social media, can be used to justify reasonable grounds of belief as regards an employee’s alleged dishonesty.  However, it will be prudent to obtain a medical opinion on what this evidence means in terms of the employee’s condition and to comply with your monitoring and social media policies.