Employees Who Pull A Sickie Could Be Dismissed For Gross Misconduct

Date Added 22.03.16

Employment Appeals Tribunal (EAT) Decide That Employees Who ‘Pull A Sickie’ Could Be Dismissed For Gross Misconduct

Mr Ajaj was a bus driver who had been dismissed by the Respondent for gross misconduct, because he falsified and exaggerating his sickness leave during the course of his employment. Surveillance evidence proved that Mr Ajaj had been lying about the seriousness of his illness.

The Employment Tribunal, in the first instance, accepted that the Respondent had a potentially fair reason to dismiss Mr. Ajaj but it should have been a capability process and not a conduct one that was followed, as the Respondent failed to look at the actual symptoms, not just the exaggerated ones and therefore assess his actual abilities to perform his job. They therefore held that the dismissal was unfair.

What did the EAT say?

The EAT dismissed the Employment Tribunal’s ruling and held that an employee who ‘pulls a sickie’ has acted dishonestly and is in fundamental breach of their employment contract.

The EAT went on to hold that the principle reasons for dismissal of such an employee, who has acted dishonestly in breach of their contract of employment, should be based on their conduct, not their capability to attend work. Here, an employee’s capability issues are irrelevant as they have committed a fundamental breach of their contract in acting so dishonestly. ‘Pulling a sickie’ could therefore amount to gross misconduct.

What does this mean for you?

The judgment will come as good news to employers who become aware of employees who are exaggerating or falsely calling in sick to work. Employers may wish to implement certain measures that will help them gather evidence of such dishonest acts by employees who pull regular ‘sickies’.

Need some advice?

Talk to Tollers! We are here for you.

Tollers’ Employment Law Team are here to help should you have any queries regarding the above judgment or require advice in relation to dealing with employees who may be acting dishonestly in with their sickness leave, do not hesitate to contact us on 01604 258558.

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