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The end of "pulling a sickie"?
19 April 2016

The recent case of Metroline West Ltd v Mr Ajaj considered whether “pulling a sickie” could amount to gross misconduct, allowing employers to terminate employment without notice.

The facts

Mr Ajaj worked as a bus driver at Metroline West from 2004 to 2014. In February 2014, he slipped on water on the floor of the lavatories, suffering an injury. Metroline’s occupational health advisor concluded that Mr Ajaj was not fit for driving a bus, and he was subsequently referred to a physiotherapist by his GP.

Metroline had their suspicions about the legitimate extent of Mr Ajaj’s injuries. On a sickness absence review meeting at their offices, they arranged for covert video surveillance of Mr Ajaj. Mr Ajaj had produced doctor’s notes claiming his degree of incapacity and claimed that he was unable to walk for more than 5 or 6 minutes and to carry heavy goods (only items such as “chocolate, paper, and a sandwich”). The footage, however, revealed him carrying bags far too large to be chocolate, a paper or a sandwich, and walking for far longer than 5 or 6 minutes.

At Mr Ajaj’s disciplinary hearing, the employer considered the three allegations that: 1) He had made a false claim for sick pay; 2) He had misrepresented his ability to attend work; and 3) He had made a false claim of an injury at work. Mr Ajaj was dismissed with immediate effect. He then brought a claim for unfair dismissal.

The Tribunal at first instance decided in Mr Ajaj’s favour, that the dismissal was unfair but that he had contributed to his dismissal by 35 percent. It held that a reasonable employer would have regard to the specific duties the Claimant was required to perform, and Mr Ajaj was not capable of carrying out those driving duties. Both parties appealed.

Appeal

The EAT found that the ET had asked the wrong question. It was not the capability of Mr Ajaj in carrying out his role, rather that he had clearly been dishonest with his employer about his ability to walk and carry items, and that there was no evidence that he had not similarly exaggerated his ability to stay seated for long periods which was the issue preventing his return to work. It was therefore reasonable and fair to dismiss him on conduct grounds.

The Employment Judge stated: “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.”

Practical Advice

Although using covert surveillance is not always an appropriate means to monitor sickness, there are other ways employers can protect themselves from dishonest sickness claims. For example, by implementing strong sickness absence policies with a clear indication of how absences should be reported, reserving the right to require medical certificates for long-term sickness absence. These policies need to be clearly communicated to the employees prior to taking such serious action as dismissal.

The key element for employers to look out for is dishonesty. However, it is important to remember that the health warning provided by Metroline bears weight for both employers and employees alike.

For more information about this issue or to find out more about how the Employment team can help you, please contact the team on 0118 952 7284 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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