Pulling a ‘Sickie’ May Be Gross Misconduct…

Date: Tuesday 22 March 2016

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Employers occasionally suspect that an employee&rsquo,s illness is not genuine, or that the employee is malingering, but believe that there is little that can be ,done.

In the case of Metroline West Ltd &ndash,v- Ajaj the Employment Appeal Tribunal concluded that if an employee &ldquo,pulls a sickie&rdquo, this would be a fundamental breach ,of trust and was dishonest. A breach of trust is potentially a gross misconduct offence.

Mr Ajaj was a bus driver who reported that he had slipped on water in the toilets at the depot where he worked and was injured. The Employer, who doubted ,some of the reported symptoms, arranged for covert surveillance of Mr Ajaj on a number of occasions around the times when he visited medical appointments and ,meetings with the employer. Mr Ajaj was dismissed on the grounds he fraudulently claimed sick pay, he had misrepresented and exaggerated his symptoms and ,made a false claim of injury at work.

When investigating the allegations, the company Occupational Health Advisor was asked to comment on the surveillance reports, and later at the appeal against ,dismissal, viewed the actual surveillance footage. This helped the company demonstrate that a reasonable investigation had been carried out.

The doctor confirmed that the actions carried out by Mr Ajaj were significantly different to the explanation of his difficulties and symptoms he gave to the ,doctor on the same day. The OH advisor did state that patients can exaggerate their symptoms either consciously or unconsciously.

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The judgement says:

&ldquo,&hellip,an employee [who] &ldquo,pulls a sickie&rdquo, 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.&rdquo,

Note: Employers MUST make sure that a full and reasonable investigation is carried out before dismissing an employee who they believe has been untruthful ,about his or her illness. We would always recommend that you take HR, or legal advice before you commence disciplinary proceedings. ,

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