Anthony Fincham and Anthony Hollands discuss how taking sick leave when well may amount to gross misconduct following a recent EAT decision.

Most of us have colleagues whom we suspect have ‘pulled a sickie’. It always seems to be on the day after the night before, or disproportionately on Fridays and Mondays. Some employees even cling on to a firmly-held belief in their right to a certain number of days off sick per year, irrespective of the fact they may be the picture of health. A few hoarse croaks down the phone and it’s feet-up and a duvet-day in front of the television.

The Employment Appeal Tribunal (EAT) has held in Metroline West Limited v Ajaj that taking sick leave when well demonstrates dishonesty and a fundamental breach of trust and confidence by the employee. Put another way, such behaviour may amount to gross misconduct, giving an employer grounds for summary dismissal.

The case

Mr Ajaj was employed as a bus driver for Metroline West Limited (MWL). He suffered injury following a fall at work and took a prolonged period of sickness absence. Despite corroborating reports from Mr Ajaj’s physiotherapist and occupational health adviser, MWL suspected that the extent of Mr Ajaj’s injury and its effect on his comfort and mobility were being exaggerated. Covert recordings supported MWL’s suspicions and contradicted reports from Mr Ajaj. Following an investigation and disciplinary process Mr Ajaj was summarily dismissed for gross misconduct. Mr Ajaj filed claims in the Employment Tribunal (ET) for unfair and wrongful dismissal.

The EAT decision

The ET found in favour of Mr Ajaj on the basis that there was no evidence that he had exaggerated his inability to perform his duties under his employment contract. However, on appeal the EAT agreed with MWL. It found the dismissal of Mr Ajaj for gross misconduct was permissible because MWL had a genuine belief that Mr Ajaj had (i) obtained or claimed sick leave and pay by fraudulently representing he was sick when he was not, (ii) misrepresented his ability to attend work for review meetings with the occupational health doctor, and (iii) exaggerated his condition and deliberately attempted to defraud MWL with a claim of injury at work that was exaggerated. His dishonesty constituted a fundamental breach of the mutual trust and confidence at the core of the relationship between employer and employee. His actions therefore amounted to gross misconduct and the EAT dismissed Mr Ajaj’s claims for unfair and wrongful dismissal.

While this serves as a salutary warning to employees there is nothing remotely surprising about the decision. The EAT followed established principles in holding that it was necessary for an employer to have reasonable grounds, following a reasonable investigation, to believe that an employee had misrepresented injury or illness. A reasonable belief requires evidence, and so employers must carry out a reasonable investigation. Covert recordings can sometimes be appropriate. Employers should comply with their social media policies when monitoring an employee online, more especially where the employer intends to rely on such evidence.

Employers would be well advised to amend their handbooks and policies to include taking time off sick when well enough to work as an example of gross misconduct which may lead to summary dismissal.