The sickie - the one or two days a year where some people are defeated by a hangover or plan a shopping trip and resort to calling into work sick.
The question is, can an employee be dismissed because of it?
The recent case of Metroline West Ltd v Mr Ajaj UKEAT/0185/15/RN looked at when is it 'fair' to dismiss an employee if the employer suspects the employee may be exaggerating their ailments.
To give you a bit of background
to this case, Mr Ajaj was employed as a bus driver by Metroline West Ltd from 2004 to 2014. In February 2014, Mr Ajaj reported that he slipped on some water on the floor of the toilets at a Metroline depot and suffered an injury. He then went on sick leave claiming that he was unfit for work and unable to perform driving duties. His injury and impairment were backed up by an Occupational Health report and a physiotherapist.
Over time, however, his employer became more and more concerned that Mr Ajaj was exaggerating the effects of his injury. In April 2014, two further medical examinations took place when he reported that he could not walk for more than 5 minutes, sitting was still uncomfortable and he was unable to do any shopping or lifting unless it was very light.
Metroline obtained surveillance footage which showed him walking in excess of 5 minutes whilst carrying large shopping bags. Metroline promptly suspended Mr Ajaj and a disciplinary process was commenced. They alleged that he had made a false claim for sick pay, misrepresented his ability to attend work and made a false claim about an injury at work.
The company dismissed Ajaj on the grounds of gross misconduct for misrepresenting the seriousness of his injury and his fitness for work. The Claimant responded by bringing a claim before the Employment Tribunal for unfair and wrongful dismissal.
The Employment Tribunal found in the Claimant's (Ajaj) favour. It decided he had been unfairly dismissed on the basis that the fairness of the dismissal should have been assessed on "capability considerations". This means that Metroline should have considered when Mr Ajaj would reasonably have been expected to return to work with his real, rather than exaggerated condition.
Metroline promptly appealed this decision and it was overturned. The Employment Appeal Tribunal fundamentally disagreed with the ET and found that it had repeatedly asked the wrong questions because the dismissal wasn’t based on his ability to drive but his conduct.
How does this affect you as an employer?
If you can prove that your employee is malingering, and want to take action it is possible to do so. However, it’s vital that you are able to show that any disciplinary action you take is fundamentally based on their conduct and not on their condition. It is important that you have strong clear evidence. This will save you a lot of time and money and avoid needless tribunals and appeals.
How does this affect an Employee?
Some employees consider the “sickie” as a right and everyone is tempted to take an extra day off from time to time. Much will depend upon the culture of the business and the relationship between the employer and employee but, in reality, if the employee is sensible and the system is not abused there is probably little an employer can or would want to do about the occasional sick note even if it is suspected it may not be entirely genuine
If you require any further advice regarding any aspect of employment law then please call us on 01727 858807.