Malingerers beware: the EAT has made it easier for you to be dismissed. Sarah Maddock reports.

The background

If an employee has more than two years' employment and their sickness absence is interfering with their ability to do their job, an employer may be entitled to dismiss that employee for one of the five potentially fair reasons for dismissal set out in the Employment Rights Act 1996 (ERA).

The five 'potentially fair reasons for dismissal' under the ERA are:

- misconduct

- capability and qualifications

- redundancy

- breach of statutory restriction; and

- "some other substantial reason" also known as a "SOSR".

With regard to capability, a reason will be a potentially fair reason for dismissal where it relates to the capability or qualifications of the employee for performing work of the kind he or she was employed to do (section 98(2)(a)).

Dismissals that take place following a lengthy period of sickness absence will usually be by reason of the second potentially fair reason listed above: the employee's lack of capability to do their job.

However, short-term intermittent absences may give rise to a SOSR dismissal, even if for genuine ill-health reasons, where the absences have a significant detrimental impact on an organisation and the employee's performance.

Dismissals for misconduct in relation to sickness absence usually relate to a failure to give a valid reason for absence or for a breach of sickness reporting procedures. Dismissals for misconduct reasons must comply with the well-known case of British Homes Stores Limited v Burchell, which requires that employers must act within a 'range of reasonable responses' when investigating and making a decision to dismiss for misconduct reasons.

In Ajaj v Metroline West Limited, the Employment Appeal Tribunal (EAT) looked at how employers should deal with the dismissal of employees who deliberately mislead their employer about the extent of their illness – should an employer consider the ability of the employee to return to their duties or deal with this as a matter of misconduct?

The facts

The claimant, Mr Ajaj, worked for Metroline as a bus driver. Due to an injury caused by slipping over, Mr Ajaj was signed off from work as unfit to perform his duties.

However, Metroline was suspicious about the nature and extent of Mr Ajaj's injuries and arranged for covert surveillance of Mr Ajaj going about his daily life. The resulting footage of Mr Ajaj showed that, although he did have some restriction on his movement, he was able to undertake a wider range of activities than he had represented to medical advisers and to his employer. For example, Mr Ajaj said that he was only able to go shopping for items which he described as "light stuff", such as a chocolate bars, sandwiches or a newspaper; but the surveillance footage showed Mr Ajaj leaving a shop carrying bags of shopping. Furthermore, Mr Ajaj had represented that he was unable to walk for more than about five minutes, but surveillance footage showed Mr Ajaj walking for a significantly longer period of time.

Mr Ajaj was suspended and ultimately dismissed for gross misconduct.

An employment tribunal considered Mr Ajaj's case as a capability issue. It found that Mr Ajaj had been unfairly dismissed because Metroline had failed to take into account evidence that that Mr Ajaj's injury was improving; the alleged misrepresentation / exaggeration of his injuries related to his ability to walk rather than his ability to work as a bus driver, which would depend on the ability to sit for long periods of time.

Metroline appealed.

The decision

The Employment Appeal Tribunal (EAT) had little difficulty in upholding Metroline's appeal and setting aside the finding of unfair dismissal.

The EAT rejected the argument that Metroline should have considered Mr Ajaj's ability to perform his job as a bus driver, i.e. sitting for long periods of time, and also rejected the argument that exaggerating an illness is not gross misconduct.

The EAT said that if an employee (in their words) "pulls a sickie" then they are representing that they are unable to attend work because of sickness. The logical extension of that is that this conduct is dishonest and amounts to a fundamental breach of the trust and confidence that is at the heart of the employer / employee relationship – accordingly, this is capable of being a matter of gross misconduct.

What does this mean for me?

This case adds an extra weapon to the arsenal for employers seeking to dismiss employees for malingering. Whilst previously this would usually be dealt with as a capability issue, or maybe a 'SOSR' (see 'background' above), the EAT has confirmed that this issue goes to the root of the employment relationship and may be properly dealt with as a matter of gross misconduct. In those circumstances, the dismissal should be dealt with under the guidelines in British Homes Stores Limited v Burchell, outlined above.

You may wish to review your sickness absence and / or disciplinary policies and procedures to take account of this decision.

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