What to do if an employee pulls a sickie

08 July 2016 -

New legal case reveals what managers can do if a member of staff exaggerates illness or injury

There may be instances where managers suspect that an employee is not genuinely ill and is instead “pulling a sickie”. However, proving this and managing the situation can be tricky.

The outcome of a recent case, Metroline West Ltd v Ajaj, is helpful to those employers facing malingering staff. Here, the Employment Appeal Tribunal (EAT) considered whether an employee who had “pulled a sickie” had been unfairly dismissed.

Mr Ajaj, a bus driver, was signed off sick after an accident at work, however his employer, Metroline, were suspicious about the true extent of his injuries and placed him under covert video surveillance.

The surveillance reports, which were reviewed by Metroline’s Occupational Health provider, indicated that Mr Ajaj had exaggerated his injuries.

Disciplinary proceedings were started in relation to three allegations: Mr Ajaj had made a false claim for sick pay; he had misrepresented his ability to attend work; and that he had made a false claim of an injury at work.

Metroline dismissed him without notice for gross misconduct and Mr Ajaj brought a claim for unfair and wrongful dismissal, which succeeded at the employment tribunal.

Metroline subsequently successfully appealed to the EAT, which found that the Tribunal had incorrectly focussed on whether Mr Ajaj was capable of doing his job, in essence treating the dismissal as one for capability, instead of gross misconduct.

The EAT held that the Tribunal had therefore adopted the wrong approach. Metroline had not dismissed Mr Ajaj for capability but misconduct - because he had exaggerated his injury and its effects.

The EAT found that once a Tribunal has established that an employer had a genuine and potentially fair reason for dismissal it must then ask whether the decision to dismiss for that reason fell within the range of reasonable responses open to an employer in those circumstances.

In this instance, the correct question for the Tribunal to ask was whether the employer had reasonable grounds to believe, based on a fair investigation, that Mr Ajaj had misrepresented his injury and its effects on him.

In this case, the EAT helpfully clarified that an employee who “pulls a sickie” is acting dishonestly and is in fundamental breach of their contract of employment.

Metroline was therefore entitled to dismiss Mr Ajaj without notice.

So what advice can employers take from the principles outlined in this case?

If you suspect that an employee is exaggerating their illness then these concerns should be investigated promptly.

You should obtain as much evidence as possible, including obtaining an independent medical report on the employee. It is difficult, but not impossible, to ‘go behind’ sick notes provided by the employee’s GP and to do so you should ensure that you have clear evidence for doing so.

This case relied on covert surveillance but this will not always be appropriate.

If surveillance is used, the results should be reviewed by a medical professional and the employee should be given the chance to respond.

Furthermore, you should be wary of placing too much reliance on an employee’s social media posts, as they may not give a true picture. There are times when an employee may be too sick to work but may be able to leave the house, especially in cases involving stress or depression.

Once it has been established that the employee has a case to answer, you should ensure you follow the usual stages of a fair disciplinary process, including inviting the employee to a meeting, giving them a chance to be accompanied and to state their case.

Finally, sickness absence policies should make it clear that false or exaggerated claims to be sick may be treated as gross misconduct. It is also helpful to include a clause in employment contract requiring employees to submit to independent medical examinations and to make any contractual (but not statutory) sick pay conditional on their doing so.

Kerry Garcia is a partner at Stevens & Bolton LLP