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'Pulling a sickie' just got tricky

To some people 'pulling a sickie' is an accepted part of working life and many employees regard missing the odd working day due to feigned illness as…

To some people ‘pulling a sickie’ is an accepted part of working life and many employees regard missing the odd shift or working day due to feigned illness  as ‘harmless’.

For employers however, aside from the financial cost of sickness absence, that early morning phone call or apologetic text message signals the inconvenience and disruption of arranging cover. According to the latest Office for National Statistics report an alarming 131 million days were lost due to sickness in 2013.

In a recent PWC study a third of UK workers admitted to lying to avoid work. Should an employee therefore really be surprised if they are dismissed for ‘pulling a sickie’?

‘No’ is the unequivocal answer from the Employment Appel Tribunal in the recent case of Metroline West Ltd v Ajaj.

What happened?

Mr Ajaj was employed as a bus driver who reported slipping on water on the floor of the toilets at his local depot. He subsequently began a period of sickness absence claiming he was not fit to perform his duties as his pain prevented him from moving, he could not run or walk quickly, could not shop and had difficulties with dressing and putting on his shoes.

Metroline became suspicious about the genuineness of the nature and extent of Mr Ajaj’s injuries and so placed him under covert surveillance. The surveillance footage led them to believe that Mr Ajaj’s abilities were inconsistent with his reporting of his injuries.

Further investigation only sought to heighten these suspicions and Mr Ajaj was subsequently subjected to disciplinary action and dismissed for making a false claim for sick pay, misrepresenting his ability to attend for work and making a false claim for an injury at work. His appeal against dismissal was unsuccessful.

Mr Ajaj brought a claim for unfair dismissal. The Employment Tribunal found that a reasonable employer would have had regard to the specific duties that Mr Ajaj was required to perform in determining his capability for work. Whilst Metroline had had grounds to believe the Claimant had exaggerated the effects of an injury, this was only in respect of his ability to walk, and his role as a driver was one that meant he would be required to sit for long periods. There was clear evidence that he had suffered an injury whatever it severity. Therefore the dismissal was unfair.

Metroline appealed. Overturning the finding of unfair dismissal the EAT concluded there was evidence to suggest Mr Ajaj had misrepresented his abilities and had exaggerated the effect of his injuries. It was therefore perverse for the Tribunal to find that Metroline had not acted reasonably by putting this charge to Mr Ajaj and dismissing him on this basis.

The EAT also took the opportunity to comment that an employee ‘pulling a sickie’ is representing their inability to attend for work by reason for sickness. If that employee is not sick then this is dishonesty and is a fundamental breach of the trust and confidence at the heart of the employment relationship.

What does this mean for my business?

Whilst the EAT’s findings do not break any new ground legally, this Judgment highlights the fact that ‘pulling a sickie’ is an act of dishonesty that can warrant summary dismissal. It is rare for a decision to state this so emphatically.

The decision is perhaps also timely. As the football season draws to a close, thoughts will soon start to turn towards Wimbledon, Euro 2016, some high profile boxing matches and the Olympics. Whilst all will no doubt bring with them the usual anti-climax of English sporting expectation, it is most likely they will also coincide with some ‘runny noses’ and ‘24 hour tummy bugs’.

It may therefore be a good time to think about your policies relating to sick absence reporting and perhaps provide a gentle reminder to your employees about the processes they are expected to follow. This in itself may be enough to deter employees from feigning sickness to make sure they catch that crucial Andy Murray match or penalty shoot-out.

What if I think an employee is 'pulling a sickie'?

One problem is that ‘sickies’ tend to be for 24/48 hours allowing employees to self certificate their absence. There may not therefore be any actual medical evidence to support their incapacity.

However if you have robust absence reporting and contact procedures in place, together with thorough return to work interviews, you are putting yourself in the best possible place to deter employees and also to pick up on any suspicious behaviour from your employees. Occupational health referrals and, in prolonged or extreme cases, covert surveillance may also be an option you might wish to explore.

If an employee does then go on to take further sickness absence which you suspect may not be genuine, you will have options available to you to progress any necessary investigations and now some clear guidance that such conduct does amount to dishonesty and could amount to gross misconduct.

A ‘progressive sick’ absence/attendance procedure under which employees receive ‘warnings’ and may ultimately be dismissed will also have the effect of deterring employees from incurring intermittent short term absences that are not genuine or necessary.

The trick to managing such absences, and minimising staff ‘sickies’ is to have in place robust policies and processes which are consistently enforced. Crucially, staff must understand both what is expected of them and that falsely claiming to be absent due to sickness may be a disciplinary issue.

Jon Gregson (jon.gregson@weightmans.com) is an Associate in the Liverpool Employment, Pensions and Immigration Team. If you need any assistance in formulating an effective sick absence process or suspect that an employee’s absence may not be genuine then we are more than happy to assist. Please get in touch with Jon or speak to your usual Weightmans contact.