False claim of sickness found to be gross misconduct

The trust between an employee and employer and the misuse of this trust has recently been the subject of an appeal brought to the Employment Appeal Tribunal. They have ruled that an employee falsely claiming to be unfit for work can reasonably be classed as gross misconduct. They overturned the decision in the case of Ajaj v Metroline West Ltd due to dishonesty and breach of trust of the employee/employer relationship.

Following video surveillance Metroline proved that Mr Ajaj could carry out tasks he had claimed he couldn’t do. Following a fall at work, the claimant went off sick and was referred to occupational health. Based on the information presented the occupational health advisers recorded that he was not fit to work. Suspicions were raised and video footage was covertly gathered. Mr Ajaj had falsely received sick pay and misled his employer as to his injuries and ability to work.

The case highlighted the wealth of information now available to an employer on social media that can implicate an employee or raise suspicions as to their condition when calling in sick. It also highlighted the importance of having up-to-date staff policies, that allow for the employer to use such methods for monitoring and inform the employee that this could lead to dismissal. An employer should always consider the reasons for dismissal and check that there is evidence of misconduct, reasonable grounds for investigation and evidence to support the dismissal before acting. It is best to get independent advice as early in the process as possible, allowing for the correct procedures to be used. If a robust process is followed for absence management, it will be easier to gather evidence in the case of pulling ‘sickies’ or exaggerating illnesses.

If you need advice in relation to absence management and policies, occupational health referrals or dismissals please speak to our sister company FusionHR on 01924 827869 or email enquiries@fusionbusiness.org.uk. If you would like a demonstration of our absence management software, SAM, please email enquiries@staffabsencemanagement.co.uk. SAM can help manage the absence process, identifying triggers, trends and issues and recording the process fairly so that if disciplinary proceedings are necessary, a robust process has been followed with reasonable investigation.


 
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