"Pulling A Sickie" - The repercussions
The Employment Appeal Tribunal (the ‘EAT’) has held that 'pulling a sickie' is dishonest and a fundamental breach of contract.
This serves as a good reminder that employers can deal with spurious allegations of sickness and injury at work providing they follow a fair process and have reasonable grounds for believing misconduct has occurred having conducted a reasonable investigation.
The facts
Mr Ajaj was a bus driver for Metroline West. In February 2014, he reported having suffered an injury during an accident at work, and was subsequently signed off as unfit to work for an extended period. Mr Ajaj attended a number of Occupational Health examinations arranged by his employer at which he continued to state he was injured and could not carry out his work duties or a range of normal day to day activities. His employer became concerned about the genuineness of Mr Ajaj’s representations to Occupational Health about his injuries and arranged for covert surveillance to be carried out. The surveillance footage confirmed that Mr had exaggerated the extent and effects of his injuries. Following a disciplinary hearing, Mr Ajaj was dismissed for gross misconduct.
Mr Ajaj subsequently brought claims for wrongful and unfair dismissal. The employment tribunal found in his favour stating that fairness of dismissal should be assessed based on traditional 'capability' considerations, i.e. when could the employee reasonably be expected to return to work based on his real (rather than exaggerated) symptoms. The EAT disagreed. It held that an employee who 'pulls a sickie' is dishonest and in fundamental breach of contract. The principal reason for dismissal of a malingering employee is conduct, not capability.
Posted on 03/28/2016 by Ortolan
