Is Pulling A Sickie Gross Misconduct?

‘Everyone pulls a sick day’ is often the excuse given to employers to suggest that creating or over-exaggerating illness is in fact a harmless white lie. Not according to the Employment Appeal Tribunal in Ajaj v. Metroline West Ltd.

The Facts

Mr Ajaj was employed by the Metroline as a bus driver.  On 26 February 2014 he reported that he had slipped on water on the floor of the toilets at one of Metroline’s depots and suffered an injury.  Metroline became concerned about the genuineness of Mr Ajaj’s injuries and arranged covert surveillance of Mr Ajaj. Having viewed the surveillance footage, Metroline believed that Mr Ajaj’s abilities shown in that footage were inconsistent with his reporting of those injuries.

After various meetings with Mr Ajaj, in which he reported his abilities but without being aware of the surveillance of him, a surveillance report was sent to Metroline’s Occupational Health consultant. A report was produced, which recorded that the results of covert surveillance are not consistent with the observations made at a previous Occupational Health review.

Mr Ajaj was invited to a disciplinary hearing to face three allegations: (1) he had made a false claim for sick pay; (2) he had misrepresented his ability to attend work; (3) he had made a false claim of an injury at work.  The disciplinary hearing was conducted by the depot General Manager, who decided that each of the three allegations were made out, that each constituted gross misconduct, and that the Claimant should be dismissed with immediate effect.

Mr Ajaj claimed that he had been unfairly dismissed and dismissed in breach of contract (i.e. without notice).

The Employment Appeal Tribunal Decision

The EAT confirmed the well-known tests in this field, which is whether there are grounds, based on a reasonable investigation, on which a reasonable employer could have concluded that Mr Ajaj had falsely represented his injury. It went on to state that there were grounds to establish the disciplinary allegations and the dismissal was fair.

The EAT went further than this though. Whilst the test for fairness is to ask whether the decision was within the ‘range of reasonable responses’, the EAT asked whether Metroline was entitled to dismiss without notice. This required it to ask, effectively, whether what Mr Ajaj had done was gross misconduct. The EAT said:

‘an employee “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’.

What Does This Mean For Employers?

The first instance tribunal made the error of blurring the lines between conduct and capability and found the dismissal to be fair on the basis that Mr Ajaj was unfit for work to some extent. This was the wrong approach and the tribunal should have determined whether Metroline’s belief in misconduct (deception) was reasonable.

It is important that employers don’t confuse themselves over the two separate issues or ask ‘is it misconduct if the employee is too ill to work?’ The questions of being ill for work and lying about the extent to which an employee is ill are different.

Furthermore, it is encouraging that the EAT has stated that ‘pulling a sickie’ is dishonest. A white lie is still a lie and dismissal looks like it would be a proportionate reaction.
For assistance with this or any other employment law matter please contact Thomas Wood by email on thomas.wood@forbessolicitors.co.uk or phone on 01254 222 396.

Thomas Wood

About Thomas Wood

Tom Wood is an Associate Solicitor within the Employment team at Forbes Solicitors. Tom’s blogs cover his specialisms of restructures, TUPE, discrimination and the termination of employment. Tom also writes and advises companies in relation to holidays and compliance with the working time regulations; handling maternity and paternity matters as well as whistleblowing. Tom provides a practical and commercial insight on the most complex of employment problems.

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