Pulling a ‘sickie’: gross misconduct?

Although employers are often faced with employees who are genuinely unable to attend work due to illness, there will be times when an employer suspects that the employee is abusing the sick leave provisions, and possibly sick pay allowance, and are in fact lying about their current state of health.

Employers should be alive to the fact that if an employee ‘pulls a sickie’ i.e. says they are unable to attend work when in fact they are fit to do the job, it is a misconduct issue and should be dealt with as such.

Sometimes due to comments or images on the employee’s social media the employer becomes concerned about whether the sickness absence was genuine.   Although this alone may not be enough to justify disciplinary action or dismissal, any concerns the employer may have about the employee’s absence can be raised directly with the employee as part of any investigation process.

Before any disciplinary process is commenced, a thorough investigation needs to be undertaken to ensure the process is fair.   It also helps to ensure that any grounds the employer may rely on going forward are reasonable.   Fairness and reasonableness are vital as part of any disciplinary sanction or dismissal.

However, it can be challenging for an employer to reasonably show that they have reasonable grounds the employee is lying about their sickness absence.   Some employers, as in the case of Ajaj v. Metroline West (EAT), go as far as arranging surveillance of an employee where they are concerned that the employee is either fit to do the work and/or exaggerating their current condition.

For an abuse of sick leave to warrant gross misconduct it needs to go right to the heart of the contract of employment.   This is obviously determined on the facts of each case.   By way of example, in the case of Ajaj the employee exaggerated his current condition and the employer had evidence contrary to the occupational health report which said, for example, he could not walk for more than 5-6 minutes.  The Judge stated “..an employee who “pulls a sickie” is representing that he is unable to attend work by reason of sickness. If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.”

The EAT found in the case of Ajaj that there was no unfair dismissal and that the employer was entitled to rely upon the evidence it had gathered and to form a reasonable belief that Mr Ajaj was actually fit for work.

Employers should remember that normally concerns over whether an employee is not fit for work should be investigated by a medical expert and this needs to be considered as part of any investigation. Other issues that can arise are:

• Employees working elsewhere whilst off sick
• Employees going on holiday whilst off sick
• Disability discrimination

If you require advice on managing an employee’s absence, whether it is short term absence or long term sickness absence, please do not hesitate to get in touch.   You can contact Linda Wilson on 01730 268 211 or email her at .