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Why pulling a sickie could be grounds for gross misconduct dismissal

What should employers do to ensure that any dismissal on the grounds of misconduct is justified?

It is not uncommon for employees to fake illness once in a while to gain an extra day off; however, when an injury or illness has been exaggerated to gain an extended period of leave and furnish a claim for sick pay and the employer has evidence that this is the case, there is an argument for the employee’s dismissal on the grounds of gross misconduct.

Here we discuss a recent case that dealt with this issue.

Metroline West v Ajaj

Ajaj, who worked for Metroline West as a bus driver, slipped and injured himself while in one of the company’s toilets. Following investigations by the company, including covert surveillance and a disciplinary hearing, Ajaj was summarily dismissed. The reasons for the dismissal were falsely claiming injury at work, falsely claiming sick pay and exaggerating his injuries. He then claimed wrongful and unfair dismissal.

The judge at the Employment Appeal Tribunal (EAT) thought that although Ajaj had exaggerated the extent of his injuries, they were nevertheless preventing him doing his job; therefore, his dismissal was both wrongful and unfair. Metroline West appealed to the EAT on the grounds that the dismissal was not related to whether Ajaj could do his job; instead, it was on the grounds of misconduct.

The EAT agreed with the employer that the dismissal was justified, as an investigation found that Ajaj had exaggerated the extent to which he was affected by the injury. The judge at the EAT even went so far as to say that people who ‘pull a sickie’ and pretend to be ill are breaching the trust and confidence that should exist between employer and employee.

What can employers do?

The best thing employers can do if they suspect that somebody may be feigning illness is to investigate the circumstances fully and use experts where necessary. They should also ensure that the whole process is conducted fairly, especially when any sort of dismissal is involved.

The main thing for employees to remember is that if your employer is even remotely suspicious about an injury or illness you have suffered at work, they are entitled to investigate the circumstances fully to make a decision on your future with the company.

Likewise, employers should ensure that any investigation into an employee’s illness or injury is reasonable. If this leads them to conclude that there has been misconduct, then the employer is the one who is likely to succeed if the employee brings a tribunal claim for unfair or wrongful dismissal.

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