When an employee is genuinely too unwell to work, it is legitimate for him or her to notify their employer and to remain at home to recuperate. Some employers offer contractual sick pay so that employees are not financially penalised for periods of illness, and qualifying employees are entitled to statutory sick pay on the fourth day of any absence. But how “ill” does someone need to be for their absence to be legitimate?
In the case of Metroline West Limited v Ajaj UKEAT/0185/15/RN, Mr Ajaj had been employed as a bus driver for ten years when he reported slipping on water at work and suffering an injury. This was on 26 February 2014. He was seen by the Respondent’s Occupational Health adviser on 4 March and certified unfit for driving duties. Metroline was concerned about the genuineness and extent of Mr Ajaj’s injuries and arranged for him to be covertly filmed. This happened in March 2014, around the time of his first sickness review meeting. Having considered the surveillance footage, Metroline believed Mr Ajaj’s abilities were inconsistent with those he reported.
A second medical examination was arranged in April 2014 and further video surveillance obtained prior to the second sickness absence review. During the review, Mr Ajaj was asked about his injuries and when he would be able to return to work. Mr Ajaj suggested he may be able to return after the expiry of his sickness certificate but said he was in pain and that this prevented him from running or walking quickly, from getting up or sitting down quickly, going shopping and getting dressed or putting on his shoes easily.
Towards the end of April 2014 a further sickness absence review meeting was held at which Mr Ajaj told the company he was still moving slowly and the could not drive due to the tablets he was taking. He acknowledged that things were improving but said if he returned to work he would only be able to sit in an office as he did not know when he would be able to drive again.
Mr Ajaj was then shown the surveillance footage obtained by the company which showed him shopping and walking for considerably longer than he had informed Occupational Health he was able to do. He was then suspended whilst the company sought medical advice on whether Mr Ajaj’s alleged injuries were consistent with what he could be seen doing on the surveillance footage. The medical advice was that the results of the covert surveillance were not consistent with Occupational Health’s observations.
A disciplinary hearing was held on 7 May to consider three allegations, namely:-
1. that Mr Ajaj 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.
The hearing concluded that each of the above allegations were made out and that Mr Ajaj should be dismissed for gross misconduct. Mr Ajaj appealed but his appeal was unsuccessful.
Dismissing an employee for gross misconduct is the ultimate sanction in employment law. It relates to conduct that is so serious it goes to the heart of the contract, entitling the employer to dismiss the employee without notice or payment in lieu. In order to satisfy the legal test, an employer must show it acted reasonably in investigating and concluding the disciplinary process, that it had a genuine belief that the conduct alleged has been committed and that another employer in the same or similar position would have acted in a similar way.
At first instance, the Tribunal found Mr Ajaj had been unfairly dismissed but that he had contributed to his dismissal through his conduct. The Employment Appeal Tribunal disagreed, finding that if an employee states he is sick when he is not, this amounts 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.
The Courts have not always approved the use of covert surveillance and so employers should consider any allegations carefully before deciding whether or not such a step is appropriate. If anything, this case is a good reminder of the importance of having a robust disciplinary policy and the need to train managers in how to implement and consider disciplinary procedures.
If you have any questions about the above case or wish to discuss your company’s training needs or our annual fixed fee employment law retainer scheme please contact Debbie Sadler on 0118 955 9607 or at firstname.lastname@example.org.
Published on 06/05/2016