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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.
How we can help:
Personal IT privacy at work
A recent case regarding privacy at work has been resolved at the European Court of Human Rights (ECtHR).
The employee was using Yhaoo Messenger during work hours to send and receive personal and professional emails. This was a direct breach of the company policy which clearly stated that it was strictly forbidden to use computer and other office equipment for personal purposes. The company followed full investigation and disciplinary procedures and dismissed the employee for failure to comply with company policies. The employee argued that the company had breached his human rights to privacy.
The ECtHR view:
The ECtHR found that as the employer had been checking on work related activities and subsequently discovered the personal activities, they had not breached the employees’ rights. However, they did deem it be a proportionate interference. They also made it very clear that employers do not have the right to access employees personal emails and that policies should be clear on what personal use is allowed and what monitoring will be conducted.
Following this outcome, employers are urged to review their IT and Social Media policies to ensure they are not in breach of privacy rights. The policies must clearly state how much personal use is acceptable and what monitoring will be carried out.
How we can help:
Our dedicated team of HR professionals and employment law experts can quickly review your current policy and update it where required to give you sound peace of mind. If you don’t have IT and Social Media policies, we can easily create them for you to suit the needs of your business. Contact us on 01382 250333 to see how we can protect you from future claims.
The full case can be reviewed here - CASE OF BĂRBULESCU v. ROMANIA