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  • Published:
    29 March
  • Area of Law:
    Employment

Tempted to pull a sickie?

We hope not.

The Employment Appeal Tribunal have found that an employee who ‘pulls a sickie’ is in fundamental breach of contract and is therefore liable to be dismissed for their dishonesty (Metroline West Ltd v Ajaj).

This is a decision that the vast majority of employers will understand, agree with and welcome, although it has taken the appellate tribunal to clarify the position. It also leaves employees in no doubt as to the potential consequences of pretending to be ill when they are not.

What does it mean for businesses?

In the modern world of mass communication and social media postings, it’s not unusual for employers to become concerned about the genuineness of an employee’s absence.

The judgment from the Employment Appeal Tribunal is extremely helpful in confirming that an employer who can show, on the balance of probabilities, an employee has ‘pulled a sickie’, will be entitled to dismiss that employee for gross misconduct (subject, as always, to a reasonable investigation being carried out, a fair process followed and the employer having a reasonable belief in the employee’s dishonesty).

Learn more about the case

Mr Ajaj was a bus driver for Metroline. He suffered an injury at work, following which Occupational Health deemed him not to be fit for work for a significant period of time. However, Metroline had concerns about whether Mr Ajaj’s injuries, and their impact on his health and mobility, were genuine. As a result Metroline placed Mr Ajaj under covert surveillance and upon reviewing the footage, Metroline believed that there was an inconsistency in the reporting of Mr Ajaj’s injuries.

Metroline then invited Mr Ajaj to a disciplinary hearing, following which he was dismissed on the grounds that he had made a false claim for sick pay, had misrepresented his ability to attend work and had made a false claim of an injury at work.

However, when Mr Ajaj brought a claim of unfair dismissal, his claim was upheld by the Employment Tribunal, the Judge finding that the employer could have had no reasonable belief in the allegations and had failed to conduct as much investigation as was reasonable.

The Judge also found that a reasonable employer would have considered Mr Ajaj’s medical position and decided whether to continue his employment against an assessment of capability.

The Employment Appeal Tribunal overturned the Tribunal’s finding, deciding that the Tribunal had substituted its own view for that of Metroline, and that the dismissal was therefore fair in the circumstances. It found that Metroline did have a genuine and reasonable belief, based on reasonable investigation, that Mr Ajaj had attempted to commit fraud or at least to misrepresent and exaggerate his symptoms.

The Employment Appeal Tribunal concluded:

“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.”

Please don’t hesitate to contact a member of the Employment Team if you need to discuss any of the issues raised in this article or any other employment related matters.

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