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Making the “Sickie” a little more Tricky!

The Employment Appeal Tribunal (EAT) has held that pulling a sickie, particularly over an extended period, can amount to gross misconduct entitling an employer to terminate employment with immediate effect.

Ajaj v Metroline West Limited

Mr Ajaj was employed by Metroline West Limited (MWL) as a bus driver. On 26 February 2014 he reported to his manager that he had slipped and fallen on water which was on the floor of the toilets at one of MWL’s depots. Mr Ajaj alleged that he had suffered an injury and was subsequently seen by an MWL Occupational Health advisor. Their report dated 5 March 2014 concluded that Mr Ajaj was not fit to carry out his driving duties. He was referred to a physiotherapist by his GP.

MWL grew concerned about the authenticity of Mr Ajaj’s injuries and their severity. On 18 March 2014 MWL arranged for covert surveillance of Mr Ajaj around the time he was attending one of their sites for a sickness absence interview. MWL concluded that the abilities shown by Mr Ajaj in the surveillance footage were inconsistent with his own reporting.

Mr Ajaj had a further medical examination on 9 April 2014 and a further sickness absence interview on the 15 April 2014. He said that his pain prevented him from moving, he could not run or walk quickly, he could not shop and had difficulties with dressing himself and putting on his shoes. Unbeknown to Mr Ajaj, between 9 April and 24 April he was under surveillance by MWL.

On 24 April 2014 Mr Ajaj was invited to a third meeting. In that meeting he told his Manager that he was able to walk but only at a slow pace and that he did not know when he could drive again, only that he had been told he couldn’t whilst he was taking tablets. He explained to his Manager that he could now walk for longer periods than previously but sitting down was still uncomfortable. His Manager asked him about shopping and whether or not he was able to lift and carry things. Mr Ajaj said that he couldn’t lift and carry unless it was light. He was then shown surveillance footage which showed him carrying large shopping bags for prolonged periods. Mr Ajaj’s Manager told him that he did not believe either his injuries or his ongoing symptoms were as serious as alleged. Mr Ajaj was suspended pending further investigation.

On 2 May 2014 Mr Ajaj was invited to a disciplinary hearing, facing three allegations or gross misconduct:

He had made a false claim for sick pay
He had misrepresented his ability to attend work
He had made a false claim of injury at work
Having heard Mr Ajaj’s representations (including that the surveillance footage must have been altered), the disciplinary hearer concluded that all three allegations were true and amounted to gross misconduct. Mr Ajaj was dismissed with immediate effect. Mr Ajaj appealed but the appeal panel agreed with the original findings. Mr Ajaj brought a claim for unfair dismissal.

The Employment Tribunal (ET)

The ET accepted that MWL genuinely believed that Mr Ajaj had exaggerated his injury and its effects; however, it went on to assess whether the dismissal was fair by reference to capability rather than conduct. The ET found that although Mr Ajaj had undoubtedly exaggerated his ability to walk and there was a fair reason to dismiss, there was no evidence that he had exaggerated his inability to perform his contractual duties i.e. sitting on a bus on one position for lengthy periods. The ET concluded that MWL should have assessed how long it would be before he could fulfil such duties and that Mr Ajaj had been unfairly and wrongfully dismissed. MWL appealed.

Decision

The EAT decided that neither the unfair dismissal nor the wrongful dismissal claim could stand. By assessing MWL’s decision using tests for a capability dismissal, the ET Judge had made errors in relation to both claims. The judge should have assessed whether MWL believed Mr Ajaj was guilty of gross misconduct, after conducting a reasonable investigation, and that the decision to dismiss fell within the band of reasonable responses.

In setting aside the findings, the EAT concluded 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, it amount to dishonesty and a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.

Comment

All too often, employers allow lengthy periods of absence to build up without actively managing the process. Employers should be proactive about managing absence, including keeping in touch with employees and obtaining medical advice as necessary throughout.

There are a number of red flags that can indicate an employee may be ‘putting it on’ and employers should take advice if they have suspicions. If such suspicions can be proven, for example through covert surveillance, inconsistencies or medical advice, employers can get into a position where dismissal on the grounds of gross misconduct can be considered.

It is important that employers do not jump to conclusions based upon snippets of evidence in these situations. For example, dismissing an employee who is off with stress and whose Facebook profile shows them living it up in Ibiza may not be reasonable and could amount to unfair dismissal. In every case before a misconduct dismissal, employers need to follow a fair procedure in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

If you have any queries relating to absence management or the conduct of your employees, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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