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Clive Uzoho

The perils of ‘pulling a sickie’

July 26th, 2016

Paralegal, Clive Uzoho, discusses the effects absenteeism in the workplace

For employers throughout the UK the notion of ‘pulling a sickie’ is a well-known and inconvenient aspect of the employer/employee relationship. Statistics from the Timeware Workforce Management Study indicate that unofficial absences cost British business a staggering £100 billion pounds a year. Employers have historically been between the proverbial rock and a hard place in relation to handling this issue, especially small and mid-sized employers who are financially hit the hardest by employee absenteeism.

The absenteeism crisis was recently brought to the fore in the Employment Appeals Tribunal case of Ajaj v Metroline West Limited (UKEAT/0185/15/RN). Mr Ajaj, who was employed as a bus driver for Metroline West, told his manager that he had slipped and fallen at work. Mr Ajaj was subsequently seen by an Occupational Health advisor at work who reported that he was not currently fit to drive buses in his current physical state. During the absence management process Mr Ajaj’s employer became suspicious of his claims about his injuries. Metroline West began making covert recordings of Mr Ajaj. These investigations showed that Mr Ajaj’s range of physical movements and actions did not match the description of his injury that he had offered up to his employer and occupational health. Metroline acted on these recordings, and dismissed Mr Ajaj for gross misconduct, a decision that was upheld following Mr Ajaj’s internal appeal.

Mr Ajaj subsequently brought an Employment Tribunal claim for unfair and wrongful dismissal, in which he was successful. The Tribunal assessed whether dismissal was fair by reference to Mr Ajaj’s ability to perform in his role as bus driver, as opposed to by reference to his conduct. In using the criteria of capability rather than of conduct to decide the fairness of his dismissal, the ET took the position that albeit there was fair reason to dismiss Ajaj due to his (mis)conduct he had not exaggerated his inability to perform his contractual duties of sitting down to operate a bus for a lengthy period of time. The dismissal was therefore found to be unfair.

The Employment Appeal Tribunal concluded, however, that an employee who ‘pulls a sickie’ is representing that he/she is unable to attend work due to sickness of some sort. Therefore if that person is not in fact sick, it clearly amounts to dishonesty and is a fundamental breach of the trust and confidence that is a cornerstone of the employer/employee relationship.

The ruling in Mr Ajaj’s matter should serve as a wake-up call for work-shy employees. If an employer has concerns that an employee is simulating an illness or injury, that employer may have grounds for gross misconduct dismissal. A tribunal will first have to determine whether the grounds are reasonable for belief in the misconduct and will also look to see whether a reasonable investigation was carried out. This highlights the potentially heavy penalty employees will face and in a world of mass communication and social media postings, one would hope that employees think twice before not turning up for work (without good reason).

Whilst this is not a ground-breaking legal ruling, it should still be food for thought for employers who suffer from regular staff absenteeism. Employers may be encouraged to take action against truanting employees, but these employers should be proactive in communicating to employees expected standards of behaviour and the importance of trust in the employer/employee relationship. Prevention is always better than cure, and it surely makes practical and financial sense for an employer to create a culture whereby employees are less inclined to make allegations of sickness in the first place.

As we approach the summer months, employee absenteeism may rise. If you consider your employees are ‘pulling a sickie’, our employment solicitor, Leah Waller, can help advise on your position and to discuss your options on 01494 77 33 77 or email us at hello@lennonssolicitors.co.uk

 

Disclaimer
This article is for guidance purposes only and is not to be relied upon as legal advice.

 

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