But employers must carry out a reasonable investigation first
In the case of Metroline West v Ajaj, the Employment Appeal Tribunal (EAT) had to reconsider an employment tribunal ruling which had focused on an employee’s injury at work in the context of a ‘capability’ dismissal. The EAT judge said the tribunal should have considered the real reason for the claimant’s dismissal, which related to his conduct.
Ajaj was employed by Metroline West as a bus driver. When he reported that he had slipped on water on the floor of the toilets where he worked and suffered an injury, the employer was concerned about how genuine Ajaj’s allegations about of the nature and extent of the injuries were and arranged for covert surveillance. Once the employer received the video footage, it was clear that Ajaj’s description of his day to day activities such as walking and shopping were contradicted by it.
Following a disciplinary hearing, Ajaj was summarily dismissed (in other words, without notice) on the grounds that he had fraudulently claimed sick pay, exaggerated his symptoms and made false claims of injury at work. He claimed unfair and wrongful dismissal.
The employment judge agreed that Ajaj had exaggerated the extent of his injuries, but considered that the question was whether, on the evidence, he was fit to carry out his duties as a bus driver, namely sitting for an extended period of time. The judge held that there was no evidence that Ajaj exaggerated his inability to perform his bus driver duties and that his dismissal was unfair and wrongful.
The employer appealed on the basis that focusing on Ajaj’s incapability to do his job was not relevant because his dismissal was for misconduct.
The EAT allowed the appeal. The employment judge had asked the wrong question: it was not whether Ajaj could sit for an extended period of time, but whether the employer had reasonable grounds to believe, based on a fair investigation, that Ajaj had misrepresented his injury and its effects on him. The EAT held that he had. The EAT judge commented that employees who ‘pull a sickie’ are stating that they are unable to attend work because of sickness and if they are not sick, “that seems to me to amount to dishonesty and a fundamental breach of trust and confidence that is at the heart of the employer/employee relationship”.
Employers are necessarily cautious about sickness dismissals but the guidelines for gross misconduct dismissals are in many ways far clearer: if an employer carries out a reasonable investigation which leads to it having reasonable grounds to believe in an employee’s misconduct, it can be difficult for a tribunal to interfere in a decision to dismiss the employee.
The fact that the employer arranged for surveillance and obtained a company occupational health advisor’s opinion helped show that it carried out proper investigation which gave it reasonable grounds to believe that Ajaj was not truthful about the extent of his injuries.
This highlights the importance of carrying out an investigation and following a fair process before making any assumptions of misconduct. Having said that, this case shows that it is also important to remember that being fit for certain leisure activities does not always mean an employee is fit to carry out his or her job, and assumptions made about what a sick employee can or cannot do are a dangerous basis for sickness dismissals.
Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/03/31/pulling-a-sickie-may-justify-a-misconduct-dismissal.aspx