Taking a sickie - employees 'at it' and out the door?

Exaggerating or making up an illness or injury in order to take time off work can amount to gross misconduct and, provided a fair process is followed, justify immediate dismissal.

Case law

A recent case involved a bus driver, Mr Ajaj, who had an accident at work. His employer's occupational health advisers indicated that after the accident he was not fit for driving duties. He claimed that he was unable to perform a number of activities, such as walking for long distances and carrying heavy bags. However his employer, Metroline, became suspicious and arranged for covert surveillance. The surveillance contradicted Mr Ajaj's claims and he was ultimately dismissed for gross misconduct on the grounds that he had deliberately misrepresented the effect of his injuries, made a false claim for an accident at work and falsely claimed sick pay.

Capability or conduct?

The initial employment tribunal focussed on Mr Ajaj's ability to do his job and when he might be able to return to work - a capability dismissal. The tribunal decided that he had been unfairly dismissed.

However, the Employment Appeal Tribunal found that the tribunal had applied the wrong test. The question was not whether Mr Ajaj could walk or sit for long periods and work as a bus driver but whether Metroline had reasonable grounds to believe that he had acted dishonestly by misrepresenting his injury and its impact - a conduct dismissal.

An employee who 'pulls a sickie' is representing that they are unable to attend work by reason of sickness. If that person is not sick, it amounts to dishonesty and a fundamental breach of contract (the implied duty of trust and confidence).

Misconduct dismissals are usually more straightforward than sickness absence dismissals. If an employer has carried out a reasonable investigation, which gives rise to reasonable grounds for believing that the employee is guilty of misconduct, then the dismissal is likely to be fair (provided a fair disciplinary and appeal process has been followed).

Be aware though that carrying out covert surveillance risks breaching data protection and privacy obligations, unless justified as being a proportionate means of achieving a legitimate aim.

In practice

• Have a robust sickness absence policy and procedure in place which states how absences must be reported, a right to require a medical examination and consequences for absences taken dishonestly.
• Keep in regular contact with absent employees and obtain medical evidence when appropriate.
• Carry out a disciplinary investigation. The investigation must be 'reasonable in all the circumstances'.
• Don't jump to conclusions. Take steps to verify any evidence of malingering, whether found on social media or otherwise.
• If suspicions can be proven, for example through covert surveillance, inconsistencies or medical advice, consider dismissal on the grounds of gross misconduct.
• In every case before a misconduct dismissal, follow a fair procedure in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures.