If an employer suspects that an employee is faking or exaggerating an illness or injury, this should be dealt with as potential misconduct via a disciplinary procedure. A recent case in the Employment Appeal Tribunal (EAT) focused on whether an employer was ultimately entitled to dismiss an employee who it believed was exaggerating his condition.
The case concerned Mr Ajaj, a bus driver for Metroline. Mr Ajaj claimed to have suffered a fall at work which affected his mobility, resulting in a lengthy period of absence. Metroline initially applied its capability procedure and sent Mr Ajaj for occupational health assessments, but over time developed doubts about Mr Ajaj’s condition. It arranged ongoing covert surveillance which appeared to contradict Mr Ajaj’s accounts of the extent of his immobility. Metroline subsequently initiated a disciplinary procedure and dismissed Mr Ajaj for gross misconduct on the basis that he had claimed sick pay by fraudulently representing to be sick and had misrepresented his ability to attend work. Mr Ajaj brought a claim for unfair dismissal.
The EAT held that Metroline had satisfied the key conditions for a fair misconduct dismissal. Metroline had a genuine belief in Mr Ajaj’s misconduct, it had reasonable grounds for holding that belief, and it had carried out a reasonable investigation. The EAT added that an employee who “pulls a sickie” by claiming to be sick when they are not commits a breach of contract going to the heart of the employment relationship. Accordingly Metroline’s decision to dismiss summarily was reasonable in the circumstances.
The EAT’s decision will be welcome news for employers, but it is not carte blanche to dismiss at the first inkling of dishonesty. Before issuing any disciplinary sanctions or suspending company sick pay, employers will need strong evidence that sickness has been fabricated or exaggerated. In practice, this could be difficult to obtain and employers should take advice before relying on covert monitoring or social media entries. Preparing (and consistently applying) appropriately drafted data protection, social media, disciplinary and managing sickness absence policies will leave employers best placed to tackle false claims of sickness.