Pulling a Sickie

Introduction

2016 has been a very interesting year with important and significant cases in the field of employment law.  One of the most interesting cases was that of Ajaj v Metroline West Ltd where the Employment Appeal Tribunal (“EAT”) held that pulling a sickie could be a matter of gross misconduct which could justify a dismissal.

The Facts

Mr Ajaj was a bus driver for Metroline West Ltd.  He had an accident at work where he slipped on a wet floor and then claimed that he was unfit to work due to a foot injury.  Although his injury was supported with evidence from a physiotherapist and an occupational health adviser, Metroline West Ltd had its doubts.  As a result they undertook covert surveillance of Mr Ajaj and obtained footage of him walking swiftly and carrying large bags while shopping.  As a result they started a disciplinary process against him on the grounds that he made a false claim for sick pay, that he misrepresented his ability to attend work and made a false claim of an injury at work.  He was subsequently dismissed by Metroline West Ltd.  Mr Ajaj claimed unfair dismissal.  Initially the Employment Tribunal found in his favour, but Metroline West Ltd appealed to the EAT.

The Decision

The EAT found that the Employment Tribunal had been mistaken in considering the fairness of the dismissal upon the grounds of capability, since the Tribunal found that notwithstanding evidence of exaggeration of the ability to walk there was no evidence that Mr Ajaj had exaggerated his ability to perform his contractual/work duties.   The EAT held that the Tribunal’s consideration of capability was irrelevant as this was a matter of misconduct.  In fact the EAT held that since the Claimant had exaggerated the effects of this injury then this was gross misconduct as it was an act of dishonesty and a fundamental breach of trust and competence.

Analysis

Daven Naghen, head of our Employment Team has commented on the case as follows:-

“This case is good news for employers, as provided the employer has reasonable grounds for believing the employee is pulling a sickie it may consider summary dismissal upon the basis that dishonesty about illness/injury is gross misconduct.  Hence for example an employee ringing up and putting on a croaky voice claiming a cold, when just hung over, may run the risk of dismissal if the employer has or obtains evidence of this dishonesty.  Employees now know that pulling a sickie is a very risky business.”

If you are an employer or an employee and require advice on any issue relating to sickness absence/dismissal then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or visit our offices or arrange an appointment at our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.