Do you have grounds to dismiss an employee who has lied about their sickness absence?

In this case an employee who misrepresented the severity of his injury was caught on camera by his employer and subsequently dismissed.

The Law

In order to fairly dismiss an employee an employer must have one of 5 potentially fair reasons for the dismissal, which are;

1. Conduct
2. Capability or Qualifications
3. Redundancy
4. Illegality
5. Some other Substantial Reason (known as an SOSR)

In addition to having a potentially fair reason for dismissal an employer must follow a fair procedure, including complying with the ACAS Code of Practice on Disciplinary and Grievance Procedures if the reason is conduct or capability.

The decision to dismiss the employee must also be a reasonable one, which means that an employer should ensure that the reason for the dismissal is sufficient to justify dismissal.

The Facts

Mr Ajaj was employed by Metro line West Limited for 10 years as a bus driver and in 2014 he was dismissed for gross misconduct following an allegation that he had lied about his sickness absence.

On the 26th February 2014 Mr Ajaj alleged that he fell in water in the toilets at work and that he had suffered an injury. The employer sent Mr Ajaj to an occupational health doctor on the 4th March 2014 and the report stated that he was not fit for driving duties.

The employer, for various reasons which are not reported, had concerns about the genuineness of Mr Ajaj’s injury and arranged for covert surveillance of him when he attended at work for a sickness review.

Because of this surveillance footage the employer believed Mr Ajaj’s account of his injuries was inconsistent with what had been observed. As a result the employer arranged for further surveillance and continued to meet with him.

At a meeting which took place on the 23rd April 2014 Mr Ajaj was confronted with the surveillance footage which contradicted what he had reported about his current abilities, and he was subsequently invited to a disciplinary hearing.

Mr Ajaj was dismissed for three allegations:

1) that he had made a false claim for sick pay;
2) that he had misrepresented his ability to attend work; and
3) that he had made a false claim of an injury at work.

Mr Ajaj’s appeal was unsuccessful and so he made a claim in the Employment Tribunal for unfair dismissal. The Employment Tribunal agreed with Mr Ajaj and decided that he had been unfairly dismissed because, although the employer had a potentially fair reason for dismissal, there was no reasonable grounds for belief in the first two allegations, and the employer had failed to carry out a reasonable investigation.

With regards to the third allegation the Employment Tribunal found that the employer did not have any basis to say that Mr Ajaj had exaggerated his inability to work, and there was a procedural error as the way the third allegation had been concluded by the employer was inconsistent with the charge as it was originally put to Mr Ajaj.

The employer appealed against this Employment Tribunal decision on the basis that the Tribunal had not correctly applied the legal test for determining an unfair dismissal.

 The Decision

At the Employment Appeal Tribunal they agreed with the employer and overturned the Employment Tribunal decision.

The reason for the decision was that that the Employment Tribunal had substituted the employer’s reasoning for their own which was an incorrect application of the rule of law in unfair dismissal cases. The question for the Employment Tribunal was not whether Mr Ajaj was capable of walking or capable of sitting for long periods; the question was whether the employer had reasonable grounds to believe, based on a reasonable investigation, that he had misrepresented his injury and its effects.

Accordingly Mr Ajaj’s claim for unfair dismissal did not succeed.

Points to note

In the judgement from the Employment Appeal Tribunal it was stated ‘an employee [who] “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.’

This is a really interesting point from this case and one which I have discussed with clients in the past. With the increased use of social media employees are often caught out ‘pulling a sickie’ because of things they or others may have posted on Facebook or Twitter for example. If you find yourself in a situation with an employee who may have misled you to the reasons for their absence it is important to deal with the issue and try to establish what happened. You cannot make an assumption without a reasonable investigation, but if you follow a fair process and have a reasonable belief in the employee’s dishonesty then it could be grounds for dismissal for gross misconduct.

What action do you need to take?

1) If you don’t already have an absence management/sickness policy introduce one;

2) Hold back to work meetings with employees who have been off sick;

3) Seek advice before taking action to dismiss an employee who you believe may be ‘pulling a sickie’.

Case Name

Metroline West Ltd v Ajaj – Employment Appeal Tribunal