Posted by Richard Woodman, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Pulling A Sickie
The UK has one of the worst records for sickness absence from work in the EU. Whilst the majority may be genuinely ill, there will be some who are likely to be “pulling a sickie”.
In the recent case of Metroline West v Ajaj [EAT 2016], the Employment Appeal Tribunal came to the common sense conclusion that a bus driver who pretended to be sick was lawfully dismissed from work. Mr Ajaj took extended sick leave after claiming to have slipped at work. He said he was unable to carry out his driving duties. His employer became suspicious about the extent of his injury after a little while, and undertook covert surveillance of him. Mr Ajaj was filmed walking and going shopping, holding heavy shopping bags. He was later dismissed for gross misconduct for falsely representing he could not work, and dishonestly claiming sick pay.
The Employment Tribunal held in the first instance that Mr Ajaj was unfairly and wrongfully dismissed on the basis that the correct test in relation to his dismissal was whether or not Mr Ajaj was capable of carrying out duties after a reasonable investigation by his employer. The Employment Appeal Tribunal set aside the ET’s judgment, concluding that an employee who pulls a sickie is dishonest which can amount to gross misconduct. “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.”
Before employers begin dismissing employees whom they suspect may be “skiving off work”, it is worth remembering that they will have to satisfy the requirements of the legal test for unfair dismissal, and in particular misconduct dismissals. They will have to have a genuine belief of an employee’s misconduct after carrying out a reasonable investigation in to the situation. Simply having a suspicion and looking at Facebook posts or updates in which the employee appears to be well will usually not be sufficient. Covert recording should only be considered in rare cases where there is evidence to suggest the employee is not ill. Facebook posts, status updates and “check in” locations may well be part of the bigger picture of where and how an employee spends their sick day.
Employers should ensure that their sickness absence and social media policies are up to date and adhered to. For more information on our employment law services or advice on restrictive covenants please visit our contact our expert Employment & HR team.