Pulling a Sickie is a Breach of Contract
BlogHR Advice Posted: Tuesday 3rd May 2016 by
In certain fields of work, ‘pulling a sickie’ – taking time off and claiming to be ill when you’re not – has come to be regarded as one of the perks of the job. As long as you don’t exceed some notionally accepted maximum number of sick days during the year, it is seen as simply an extension to the normal holiday entitlement. The Employment Appeal Tribunal (EAT) case of Metroline West v Ajaj should encourage people to re-examine that idea.
Mr Ajaj, was a Metroline West bus driver dismissed for gross misconduct. He produced evidence that he was not fit for driving duties, but video evidence contradicted this and he was dismissed. The case went to appeal at the EAT, which held that that an employee who ‘pulls a sickie’ is dishonest and in fundamental breach of contract, entitling the employer to summarily dismiss.
The reason the case was appealed was that, at the original Employment Tribunal (ET) hearing, the ET had found for Mr Ajaj saying that although there was no question that he had misled his employer and claimed that his injury was worse than it was, the employer should have followed a capability rather than a disciplinary process to establish when Mr Ajaj could reasonably have been expected to return to work based on his real symptoms, rather than the ones he pretended to have. The EAT overturned this view and held that using the disciplinary process had been correct.
The question now must be: what does this mean for employers and what does it mean for employees?
We have stories of when colleagues have pulled a sickie, only to appear on television in the crowd at a festival, or concert, beer glasses in hand and grins on faces. That sort of thing goes on all the time, and the likelihood of being caught is greater now than in the past because of social media: people who are supposed to be sick are often caught out by the tagging of Facebook selfies by well-meaning friends.
More often than not they get away with it, especially if the employee works for a smaller business and is well regarded by the company. But what if this is not the first offence? Or if the person swinging the lead is someone the company would really prefer to be without?
Our advice to employers, based on some of the reasoning in the Metroline v Ajaj case, is: don’t act until you have investigated. Make sure you have your ducks in a row and you can produce the evidence if an employee claims unfair dismissal.
And to employees: be aware of the EAT ruling. Pulling a sickie, even for one day, is not a right, but a breach of contract that can get you fired.
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