Most of us have been there. It’s wet and cold outside and you’d much rather stay snuggled up at home with a good book. Or perhaps you enjoyed one too many glasses of wine the night before and could really do with a day in front of the telly. However, while pulling the odd sickie is tempting, and it might seem harmless, a recent Employment Appeal Tribunal (EAT) has found that it is not only dishonest, but that it’s also a fundamental breach of contract.
In this case, a bus driver claimed to have a fall at work, resulting in a prolonged period of absence. However his employer became suspicious and arranged for covert surveillance to take place. With these recordings contradicting the claims made by the employee about his ability to work, he was subsequently dismissed on the basis of gross misconduct. While the employee went on to claim unfair dismissal, the EAT found in favour of his employer, stating that:
“An employee “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”.
Of course, he’s not the only employee to be caught out. As far back as 1981 this issue hit the news after an employee was dismissed for being signed off work with sciatica, only to be seen the following day attending a demonstration at a trade union rally.
Likewise, a British holidaymaker who tackled a shark on an Australian beach and was hailed a hero, was subsequently sacked after returning home, because he was on sick leave at the time. His dismissal letter stated: “Whilst unfit to work you were well enough to travel to Australia and, according to recent news footage of yourself in Queensland, you allegedly grabbed a shark by the tail and narrowly missed being bitten by quickly jumping out of the way.
Social media brings additional warnings to employees. In 2008 a call-centre worker decided to treat himself to a day in bed. In this case, the 21-year-old celebrated by posting “not going to work, f*** it i’m still trashed SICKIE WOO” on Facebook. Not the smartest move given that his employer had access to his updates.
Of course, these are extreme examples, and employers should be careful before challenging every employee that croaks their apologies down the phone in return for a day off.
Employers must have reasonable grounds for believing an employee is guilty of misconduct, and an appropriate period of investigation is still necessary to avoid unfair dismissal claims. Likewise, employers must not be seen to treat employees differently when it comes to absence due to sickness.
Furthermore, just because you are signed off sick does not mean you must be bed-ridden. Employees who are not deemed fit for work may still be able to leave the house and take part in other day-to-day activities. Indeed, in some cases – for example, stress – this may even be on the advice of your doctor.
However, in light of the recent decision, employees should be wary, particularly because, even if you have a note from a doctor, this doesn’t give you automatic protection and employers can still challenge you – seeking their own medical evidence if they suspect you might be pulling a sickie.
If you are concerned about this, or any other employment law matter, please contact Linder Myers today.
 Ajaj v Metroline West Ltd