Pulling a sickie? (case law March 2016)
We all know it goes on and sometimes it’s all too obvious. But what can employers do about it?
Employees have the legal right to be absent from work due to sickness and to receive Statutory Sick Pay. But if the sickness isn’t genuine, do these rights still apply? In a recent case between Metroline West and Ajaj 2015, a dismissal for non-genuine absence was tested through the Employment Tribunal and the Employment Appeal Tribunal (EAT).
Mr Ajaj was employed by Metroline West as a bus driver. He claimed to have had an accident at work in February 2014 where he slipped on a wet floor. He was subsequently signed off by his GP due to the injury caused by the fall.
Following a prolonged period of absence, his employers became suspicious about the alleged injuries and arrange for covert surveillance of Mr Ajaj while he attended an absence management meeting at work. This was followed by further covert surveillance in April 2014 which showed him carrying out tasks which he claimed were beyond his physical capabilities.
Mr Ajaj was disciplined and dismissed for his conduct in misrepresenting his ability to work.
The Employment Tribunal:
Mr Ajaj made a claim of unfair dismissal to the Employment Tribunal and surprisingly won his case.
The Employment Appeal Tribunal (EAT):
Metroline West made an appeal to the EAT. The EAT concluded that Mr Ajaj’s actions had amounted to dishonesty which can be taken as a fundamental breach of contract due to it being the heart of the employer/employee relationship and therefore deemed the dismissal to be fair.
While you may suspect employees of pulling a sickie from time to time, you must be able to demonstrate that beyond reasonable doubt, the employee is making a dishonest representation of their condition and inability to work. While covert surveillance may seem a bit extreme, you can use it in some circumstances. Social media sites are also a good way to check up on absent employees but it’s important to have a social media policy in place too. Medical advice may be obtained from the employees GP, with their written consent, or from an occupational health advisor. As with any dismissal, it is vital to follow a full and fair investigation and dismissal process. Use your company disciplinary policy and make sure it complies with current statutory guidance.
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