The recent Employment Appeal Tribunal (“EAT”) case of Metroline West Ltd v Ajaj considered whether an employee who, in the EAT’s words, “pulled a sickie” had been unfairly dismissed. While the case does not break any new legal ground, it will assist employers who are faced with a malingering employee.
Mr Ajaj, a bus driver, was signed off sick following an accident at work. However, Metroline had suspicions 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. He was dismissed without notice for gross misconduct, and subsequently brought a claim for unfair and wrongful dismissal.
Although it accepted that Metroline had dismissed Mr Ajaj on the basis of a genuine belief as to his misconduct, the original Employment Tribunal focused on whether he was, in fact, capable of doing his job. It found that there was no evidence that he was and therefore found that his dismissal was unfair and wrongful. It said that a reasonable employer would have looked at whether the employee was exaggerating his inability to do his job, rather than his injuries generally. In essence, it treated the dismissal as one for capability, instead of gross misconduct.
On appeal by Metroline, the EAT said that this was the wrong approach. Metroline had not dismissed Mr Ajaj for capability but misconduct i.e. because he had exaggerated his injury and its effects. 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 a reasonable employer in those circumstances. Further, said the EAT, 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 and his dismissal was neither unfair nor wrongful.
So how can employers apply the principles that this case highlights? If you have suspicions that an employee is not as sick as they claim, then any concerns should be investigated promptly.
You should obtain as much evidence as possible, including obtaining an independent medical report on the employee. It is possible to ‘go behind’ sick notes provided by the employee’s GP, but you should ensure that you have a clear, evidence-based reason for doing so. Although this case relied on covert surveillance, it will not always be appropriate to use it. If surveillance is used, the results should always be reviewed by a medical professional. Further, be wary of placing too much reliance on an employee’s social media posts, as they may not give a true picture.
Avoid snap judgements. For example an employee who is spotted playing tennis while purportedly off with a bad back may be committing an act of misconduct, but if the employee is off with stress or depression there may be good, therapeutic reasons why they are on court.
Once it has been established that the employee has a case to answer, the normal principles of a fair disciplinary process should be followed.
Finally, employers can also help to protect themselves by making it clear in their sickness absence policies that false or exaggerated claims to be sick may be treated as gross misconduct. You can also impose a contractual obligation on employees to submit to independent medical examinations and make any contractual (but not statutory) sick pay dependant on their doing so. However, this will not override the need for the employee’s specific consent to the medical examination.