What can you do if your employee takes time off sick…when they’re not?
SHORT ANSWER: If you can prove it – disciplinary proceedings and possibly dismissal.
LONG ANSWER:
The recent EAT case of Metroline West Ltd v Ajaj UKEAT/0185/15/RN considered this very point. Mr Ajaj, a bus driver, claimed that he’d slipped on water in the toilets at Metroline. He was declared unfit for work by Occupational Health, backed up by evidence from his physiotherapist and his GP’s sick certificate.
He claimed that his pain prevented him from moving, he couldn’t run or walk quickly, he couldn’t shop and had difficulties with dressing himself and putting on his shoes. His sickness absence and claim for sick pay lasted for a couple of months.
But Metroline didn't believe that Mr Ajaj was actually as ill as he claimed to be. Covert video surveillance showed Mr Ajaj walking freely and carrying large shopping bags for lengthy periods of time.
Following disciplinary proceedings, Mr Ajaj was dismissed for gross misconduct on the basis that he’d:
Made a false claim of injury at work
Misrepresented his ability to attend work
Made a false claim for sick pay
The EAT concluded that an employee who’s ‘off sick’ is representing that s/he’s unable to attend work by reason of sickness. If that person isn’t sick or isn’t as sick as s/he claims to be, it amounts to dishonesty and a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.
WHAT YOU SHOULD DO:
Establish whether there are reasonable grounds for your suspicions
Conduct a fair internal investigatory process
Ensure disciplinary procedures are followed
Make sure that any disciplinary action is proportionate.
If you’re still stumped, contact Greycoat Law for a free initial consultation to find out whether we can help you: 020 8989 9111 or practice.manager@greycoatlaw.co.uk
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