Pulling sickies.  Now grounds for gross misconduct dismissal.

Pulling sickies is legitimate grounds for dismissal

1 in 10 employees admits to ‘pulling a sickie’ or faking an illness to avoid work. These sickies can be a nuisance at the workplace and are tricky to manage due to the contention involved in accusing someone of lying. Employers are also potentially on thin ice taking on the task of proving the employee was or is not ill. But now there is good news for managers struggling with this issue: from a legal standpoint pulling sickies is legitimate grounds for dismissal. Of course, certain criteria must be met to justify the dismissal but the Employment Appeal Tribunal (EAT) has found that an employee who pulls a sickie can be dismissed for gross misconduct.

Mr Ajaj claim of injury from accident at work

The ruling was made in the case Ajaj vs Metroline West Ltd. Mr Ajaj was a bus driver who claimed to have had a fall at work and subsequently reported unfit for duty. The incident resulted in a long term absence. Mr Ajaj was assessed by Occupational Health who deemed him unfit for driving. He was referred to physiotherapy by his GP. He told his employer that he was unable to carry out day-to-day tasks like carrying heavy loads of shopping or to walk any longer than 5-6 minutes.

Employer arranged covert recordings

Mr Ajaj’s employer became suspicious of his claims and the extent of his injuries. Metroline West Ltd arranged covert recordings of Mr Ajaj to take place. In the recordings his mobility contradicted the account he had given Occupational Health and his employer. Metroline West decided to start a disciplinary process based on based on potential gross misconduct.

Dismissal on grounds of gross misconduct

Mr Ajaj was subsequently dismissed on three grounds:

  1. Claiming sick pay fraudulently
  2. Misrepresenting his ability to attend work
  3. Exaggerating an injury sustained in an accident at work

The employee brought a claim for unfair and wrongful dismissal against his employer. The Employment tribunal ruled in favour of Mr Ajaj. The tribunal focused on assessing whether Mr Ajaj had really been fit for driving and made their ruling on the basis that his mobility outside work did not mean he could carry out his job. Therefore the first two grounds for dismissal did not stand. The tribunal dismissed the third point due to lack of evidence.

EAT finds that pulling sickies is legitimate grounds for dismissal

Metroline West Ltd appealed to EAT on this ruling and the the appeals court overturned the original ruling. The EAT ruled that “an employee [who] “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship”. In other words ‘pulling a sickie’ is potential grounds for gross misconduct.

Employers should build their cases carefully

Metroline West Ltd was represented by Littleton Chambers who write on their blog that “before employers begin dismissing employees whom they suspect have been ‘pulling a sickie’ it is worth remembering that the legal test for unfair dismissal has not changed. An employer will still need to satisfy the requirements of BHS v Burchell [1978] IRLR 379.”

Covert recordings may not be an appropriate way to go in disputes with employees, either. Employers should tread carefully if they decide to pursue the route of proving that an employee is faking their illness. The burden of proof will mean that many sickies still go un-checked. Saying that someone didn’t look or sound very ill is not sufficient to prove misconduct.

New era for ‘Facebook stalking’?

Nevertheless, employees should take note of this potentially serious consequence of faking a sick day. Based on this new ruling, that day of skiving could amount to losing the job. For example, ill-judged posts on Facebook may get some employees caught out and, depending on the company social media policies, this could be sufficient evidence of non-genuine sick days. However, managers must make sure it is allowed within their policy before stalking their ‘Usual Suspects’ – the common culprits of absence problems – on social media.

To get a better handle on who is pulling sickies at your company, we recommend using Engage for complete absence recording and reporting.

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