Can we fairly dismiss an employee for pulling a sickie?

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Can we fairly dismiss an employee for pulling a sickie?

employment solicitor
Beverley Sunderland – Employment Solicitor

Employee sickness generally falls into two categories; short term sickness when perhaps someone has a cold or a temporary sickness bug, and long term sickness absence when an employee has a specific medical condition. These two must generally be treated in completely different ways.

An employer cannot usually start to think about dismissing an employee on long term sickness until they have exhausted any occupational sick pay – a Tribunal will take the view that this is exactly what sick pay is there for, to allow an employee to recover.

Then an employer must seek medical advice on the employee’s condition and prognosis and likely return to work. They must also consider any reasonable adjustments. Not doing all of these things can potentially lead to claims for unfair dismissal and disability discrimination.

However, if  an employee calls in and says that they are confined to bed and unable to come to work, and yet are posting pictures of themselves on Facebook on the beach, then this is dishonesty and the employee deserves to be disciplined. The level of punishment will be determined by the facts but could potentially include dismissal without notice.

Then again, an employer needs to be very careful if making allegations against an employee without any evidence to support them. The employee could say that alleging they are not really sick is a breach of trust and confidence and the employee could claim constructive dismissal, if they have been employed for more than two years.

But what about the employee who has the odd sick days here and there? Very frustrating as a manager but is there anything that they can do practically? A point often overlooked by employees is that an employer needs to be able to rely on them to come to work and do the job they are employed to do. If an employee has significantly more short term sickness than other employees, then this becomes an issue of reliability. An employer is not saying they disbelieve the employee was sick but what they are saying is that their reliability is impacting on the business and needs to improve and if it does not then a first warning will follow, then a final one and then if they still continue to be unreliable,  dismissal on notice. Obviously absence due to pregnancy cannot be taken into account and those with disabilities must be given much more leeway before formal action is taken and reasonable adjustments considered.

But what about the situation where an employee on long term sickness absence is found not to be as ill or injured as they are suggesting? Exactly this situation was considered in the recent case of Metroline West v Ajaj where Mr Ajaj claimed to have slipped in the toilets at work and to have injured himself so significantly that he could not work. He attended occupational health explaining he could walk for no more than five or six minutes and could carry no more than newspapers or sweets. He had problems with sitting down, dressing himself and washing, amongst other things.

Covert surveillance of Mr Ajaj told a different story. He was filmed walking for much longer than five or six minutes, chatting to friends, he was shown leaving a supermarket carrying heavy bags. Mr Ajaj was called to a disciplinary hearing charged with potential gross misconduct for a serious breach of trust in falsely claiming sick pay, misrepresenting the extent of his ability to work and claiming for personal injury. He was dismissed without notice.

When the case came before the Employment Tribunal the judge sitting alone decided it was an unfair dismissal because the employer had not investigated sufficiently whether Mr Ajaj could actually work for them. On appeal the Employment Appeal Tribunal (‘EAT’) overturned the decision and said that the Judge had applied the wrong test and also substituted his own view for that of the employer. The EAT said that this was a conduct dismissal and nothing to do with capability.

They concluded that the employer had investigated the matter, had evidence to support their reasonable belief that Mr Ajaj had exaggerated his injury and ability to work and that dismissal was within a ‘band of reasonable responses’.

Most importantly the Honourable Mrs Justice Simler said:

‘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, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.’

A quote likely to be used in many disciplinary hearings up and down the country for many years to come!

By Beverley Sunderland, Managing Director of Crossland Employment Solicitors.

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