Can an employer fairly dismiss an employee for pulling a sickie?

31 March, 2016
by: Cripps Pemberton Greenish

Text message on mobile phoneThe Employment Appeal Tribunal has held that an employee who pulls a sickie is breaching the term of trust and confidence which is implied into every employment contract and can be fairly dismissed for gross misconduct.

Mr Ajaj, a bus driver, claimed that he slipped on the floor at work, leaving him unable to carry out his duties. The occupational health department confirmed that he was unable to drive and he remained off work. His employer subsequently became suspicious about the nature of Mr Ajaj’s injury and arranged for covert surveillance to be carried out. This showed Mr Ajaj carrying heavy shopping and walking longer distances than he claimed he was able to.

Following a disciplinary meeting, Mr Ajaj was dismissed for making a false claim for sick pay, misrepresenting his ability to work and staging or exaggerating his injury at work.

The Employment Appeal Tribunal held that the correct question to ask in these situations is not whether Mr Ajaj was capable of walking or sitting for long periods but whether the Metroline had reasonable grounds to believe, based on a reasonable investigation, that Mr Ajaj had misrepresented his injury and its effects. In this case, they held that Metroline had fairly dismissed Mr Ajaj.

As is often the case in employment tribunal decisions the magic word is ‘reasonable.’ In this case, the question concerned whether there was a ‘reasonable’ investigation of Mr Ajaj’s ability to work. Metroline relied on covert surveillance recordings. Whilst such evidence can be useful and indeed relevant in potential malingering cases, it needs to be assessed by a medical professional with appropriate qualifications before being relied upon. Failure to do so is likely to render the investigation unreasonable.