EMPLOYMENT 

Thinking of pulling a 'sickie'? Think again 

Persistent absenteeism due to illness is an ever recurring issue for businesses. In particular Employers face a constant balancing act between treating employees fairly and dealing effectively with absences which are impacting on business efficiency. What are an Employer’s options however when it suspects that an Employee’s absence is not genuine or that an employee has exaggerated the extent of their condition? This question was addressed in the recent Employment Appeal Tribunal (EAT) Case of Metroline West Ltd v AJAJ. 

This case concerned a Mr Ajaj who was employed by Metroline West Ltd as a bus driver. On 26th February 2014 Mr Ajaj reported that he had slipped on water in his employer’s toilets and was absent from work due to injury thereafter. A report obtained from Metroline’s Occupational Health adviser dated 4th March concluded that Mr Ajaj was not fit for his duties as a driver.

Due to a number of issues the Respondent was concerned about the authenticity of Mr Ajaj’s injuries and as a result it arranged for covert surveillance of his activities from 18th March 2014. Footage uncovered lead Mr Ajaj’s management to believe he had exaggerated his claims to Occupational Health and that he had mislead them in the process. Of particular note was footage of the Claimant where he is seen ‘walking with various degrees of freedom, carrying shopping bags, making journeys, ascending stairs’ on the same day that he had reported to occupational heath that ‘he could not run or walk quickly, get up or sit down quickly, he could not shop and had difficulties with dressing and shoes’.

Mr Ajaj was subsequently invited to a disciplinary and dismissed for gross misconduct on the grounds that he had made a false claim for sick pay, misrepresented his ability to attend work and that he had made a false claim of injury at work.

The Employment Tribunal upheld Mr Ajaj’s claims for unfair dismissal at first instance. Although it concluded that the Claimant did mislead and exaggerate the effects of his injury it held that there was ‘nothing in the video evidence to show that Mr Ajaj was capable of sitting in one position for lengthy periods…’ and therefore capable of fulfilling his role.

This decision was overturned on appeal by the EAT which opined that the Employment Tribunal had ‘impermissibly asked an irrelevant question directed at capability’. It stated that the ‘question in this misconduct case was whether the Respondent had reasonable grounds to believe, based on a reasonable investigation, that the Claimant had misrepresented his injury and its effect’.

Helpfully for employers the EAT also went on to confirm ‘an employee “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 a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.’

Whilst we would caution Employer’s against carrying out surveillance on absent employee’s without good cause, this case reiterates the position that an employer can take disciplinary action where it has evidence to establish that an employee has mislead it in relation to sickness absence. We would remind employers however that each case should be judged on its own facts and therefore if you suspect that an employee has pulled a ‘sickie’ take legal advice before taking any disciplinary action.

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