Pulling a Sickie!
ACAS have reported a case last week – Lydia Banerjee on Ajaj v Metroline West Ltd – which will change the way in which employers and employees view the “Sickie” (see below for full report ACAS 2016)
“For many the idea of ‘pulling a sickie’ is neither shocking nor worthy of news. A sore head from the night before, tickets to an exciting event, even a sense of entitlement to some sick days each year are familiar rationales offered as employees put on their best ‘sick voice’ and croak their apologies down the phone to their employer.
The EAT in Ajaj v Metroline West Ltd (UKEAT/0185/15/RN) has found “An employee “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”. In other words ‘pulling a sickie’ is potential grounds for gross misconduct.
In the case in question Mr Ajaj claimed to have experienced a fall at work resulting in a prolonged period of absence. Over the course of the absence management process the employer grew suspicious of Mr Ajaj’s claims in relation to the extent of his injuries and arranged for covert recordings of him to take place. In the recordings Mr Ajaj’s movements and actions seemed to contradict the account that he was giving to both his employer and occupational health. Metroline West Ltd decided that Mr Ajaj’s actions amounted to potential gross misconduct and commenced disciplinary proceedings.
The EAT supported Metroline West Ltd’s decision to dismiss Mr Ajaj for gross misconduct based on the findings of the Tribunal that the company genuinely believed that Mr Ajaj had (i) obtained or claimed sick pay by fraudulently representing to be sick when he was not; (ii) misrepresenting his ability to attend work at review meetings and with the occupational health doctor and (iii) exaggerated his condition or deliberately attempted to defraud the company with a claim of injury at work that was exaggerated. The Tribunal also concluded that these matters related to conduct giving a potentially fair reason for dismissal. From this point the Tribunal moved into error substituting their view for that of the employer and giving rise to the issues in the appeal.
The facts of the case may not be a classic “pulling a sickie” scenario but the view of Mrs Justice Simler in the EAT will be repeated by many an employer and employees ought to be wary.
That said before employers begin dismissing employees whom they suspect have been “pulling a sickie” it is worth remembering that the legal test for unfair dismissal has not changed. An employer will still need to satisfy the requirements of BHS v Burchell  IRLR 379.
Covert recording will not be an appropriate step for many businesses but an employer will need to show that they have reasonable grounds for believing the employee to be guilty of the misconduct alleged following a reasonable investigation. Simply thinking someone didn’t sound ill on the phone is unlikely to be enough. Facebook posts, status updates and ‘check-in’ at various locations may well be part of the picture of where and how an employee spends their sick day. Employers will need to make sure that their social media policies are up to date and allow for this sort of information to be accessed and relied upon.
If a business has a particular problem with employees taking sick days improperly then it might be argued that there is a culture of tolerance towards such conduct. In this situation an employer may need to consider communicating a new approach to sickness absence prior to taking action against employees. To do otherwise risks any dismissal being outwith the band of reasonable responses” (Littleton 23.03.16)